US (United States) Code. Title 28. Appendix 7. III. Pleadings and motions

Codificación normativa de EEUU (Estados Unidos). Legislación federal estadounidense # Rules of the US (United States)

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-CITE-

28 USC APPENDIX Rule 15 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

III. PLEADINGS AND MOTIONS

-HEAD-

Rule 15. Amended and Supplemental Pleadings

-STATUTE-

(a) Amendments. A party may amend the party's pleading once as a

matter of course at any time before a responsive pleading is served

or, if the pleading is one to which no responsive pleading is

permitted and the action has not been placed upon the trial

calendar, the party may so amend it at any time within 20 days

after it is served. Otherwise a party may amend the party's

pleading only by leave of court or by written consent of the

adverse party; and leave shall be freely given when justice so

requires. A party shall plead in response to an amended pleading

within the time remaining for response to the original pleading or

within 10 days after service of the amended pleading, whichever

period may be the longer, unless the court otherwise orders.

(b) Amendments to Conform to the Evidence. When issues not raised

by the pleadings are tried by express or implied consent of the

parties, they shall be treated in all respects as if they had been

raised in the pleadings. Such amendment of the pleadings as may be

necessary to cause them to conform to the evidence and to raise

these issues may be made upon motion of any party at any time, even

after judgment; but failure so to amend does not affect the result

of the trial of these issues. If evidence is objected to at the

trial on the ground that it is not within the issues made by the

pleadings, the court may allow the pleadings to be amended and

shall do so freely when the presentation of the merits of the

action will be subserved thereby and the objecting party fails to

satisfy the court that the admission of such evidence would

prejudice the party in maintaining the party's action or defense

upon the merits. The court may grant a continuance to enable the

objecting party to meet such evidence.

(c) Relation Back of Amendments. An amendment of a pleading

relates back to the date of the original pleading when

(1) relation back is permitted by the law that provides the

statute of limitations applicable to the action, or

(2) the claim or defense asserted in the amended pleading arose

out of the conduct, transaction, or occurrence set forth or

attempted to be set forth in the original pleading, or

(3) the amendment changes the party or the naming of the party

against whom a claim is asserted if the foregoing provision (2)

is satisfied and the party to be brought in by amendment (A) has

received such notice of the institution of the action that the

party will not be prejudiced in maintaining a defense on the

merits, and (B) knew or should have known that, but for a mistake

concerning the identity of the proper party, the action would

have been brought against the party.

(d) Supplemental Pleadings. Upon motion of a party the court may,

upon reasonable notice and upon such terms as are just, permit the

party to serve a supplemental pleading setting forth transactions

or occurrences or events which have happened since the date of the

pleading sought to be supplemented. Permission may be granted even

though the original pleading is defective in its statement of a

claim for relief or defense. If the court deems it advisable that

the adverse party plead to the supplemental pleading, it shall so

order, specifying the time therefor.

-MISC1-

RULES COMMITTEE NOTE

Significant changes were made to FRCP 15 in 1991; minor changes

were made in 1993. Most notable is the listing of criteria for

relation back of amendments in subdivision (c). RCFC 15 was

conformed to the comparable federal rule, with two exceptions:

First, the language in FRCP subdivision (c)(3), relating to the

timing of an amendment changing the name of a party, was omitted as

inapplicable.

Second, language in subdivision (c) of the federal rule, relating

to faulty service on federal officers, also was omitted.

-End-

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28 USC APPENDIX Rule 16 01/06/03

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TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

III. PLEADINGS AND MOTIONS

-HEAD-

Rule 16. Pretrial Conferences; Scheduling; Management

-STATUTE-

(a) Pretrial Conferences; Objectives. In any action, the court

may in its discretion direct the attorneys for the parties and any

unrepresented parties to appear before it for a conference or

conferences before trial for such purposes as

(1) expediting the disposition of the action;

(2) establishing early and continuing control so that the case

will not be protracted because of lack of management;

(3) discouraging wasteful pretrial activities;

(4) improving the quality of trial through more thorough

preparation;

(5) facilitating the settlement of the case; and

(6) assessing the utility of dispositive motions.

(b) Scheduling and Planning. Except in actions exempted by the

judge, the court shall, after receiving the Joint Preliminary

Status Report from the parties pursuant to Appendix A or after

consulting with the attorneys for the parties and any unrepresented

parties by a scheduling conference, telephone, mail or other

suitable means, enter a scheduling order that limits the time

(1) to join other parties and to amend the pleadings;

(2) to file motions; and

(3) to complete discovery.

The scheduling order also may include:

(4) modifications of the times for disclosures under RCFC 26(a)

and of the extent of discovery to be permitted;

(5) the date or dates for conferences before trial, a final

pretrial conference, and trial;

(6) a direction that the parties file any of the submissions

set out in Appendix A ¶¶ 14, 15, 16 or 17; and

(7) any other matters appropriate in the circumstances of the

case. The order shall issue as soon as practicable but in any

event within 4 days after any preliminary scheduling conference

or, if no preliminary scheduling conference is held, as soon as

practicable after the Joint Preliminary Status Report is filed. A

schedule shall not be modified except upon a showing of good

cause and by leave of the judge.

(c) Subjects for Consideration at Pretrial Conferences. At any

conference under this rule consideration may be given, and the

court may take appropriate action, with respect to

(1) the formulation and simplification of the issues, including

the elimination of frivolous claims or defenses;

(2) the necessity or desirability of amendments to the

pleadings;

(3) the possibility of obtaining admissions of fact and of

documents which will avoid unnecessary proof, stipulations

regarding the authenticity of documents, and advance rulings from

the court on the admissibility of evidence;

(4) the avoidance of unnecessary proof and of cumulative

evidence, and limitations or restrictions on the use of testimony

under Rule 702 of the Federal Rules of Evidence;

(5) the appropriateness and timing of summary adjudications

under RCFC 56 and 56.1;

(6) the control and scheduling of discovery, including orders

affecting disclosures and discovery pursuant to RCFC 26 and RCFC

29 through 37;

(7) the identification of witnesses and documents, the need and

schedule for filing and exchanging pretrial briefs, and the date

or dates for further conferences and for trial;

(8) the advisability of referring matters to a master;

(9) settlement and the use of special procedures to assist in

resolving the dispute;

(10) the form and substance of the pretrial order;

(11) the disposition of pending motions;

(12) the need for adopting special procedures for managing

potentially difficult or protracted actions that may involve

complex issues, multiple parties, difficult legal questions, or

unusual proof problems;

(13) an order for a separate trial pursuant to RCFC 42(b) with

respect to a claim, counterclaim, or third-party claim, or with

respect to any particular issue in the case;

(14) an order directing a party to present evidence early in

the trial with respect to a manageable issue that could, on the

evidence, be the basis for a judgment as a matter of law or a

judgment on partial findings under RCFC 52(c).

(15) an order establishing a reasonable limit on the time

allowed for presenting evidence; and

(16) such other matters as may facilitate the just, speedy and

inexpensive disposition of the action.

At least one of the attorneys for each party participating in any

conference before trial shall have authority to enter into

stipulations and to make admissions regarding all matters that the

participants may reasonably anticipate may be discussed. If

appropriate, the court may require that a party or its

representative be present or reasonably available by telephone in

order to consider possible settlement of the dispute.

(d) Final Pretrial Conference. Any final pretrial conference

shall be held as close to the time of trial as reasonable under the

circumstances. The participants at any such conference shall

formulate a plan for trial, including the program for facilitating

the admission of evidence. The conference shall be attended by at

least one of the attorneys who will conduct the trial for each of

the parties and by any unrepresented parties.

(e) Pretrial Orders. After any conference held pursuant to this

rule, an order shall be entered reciting the action taken. The

order following a final pretrial conference shall be modified only

to prevent manifest injustice.

(f) Sanctions. If a party or party's attorney fails to obey a

scheduling or pretrial order, or if no appearance is made on behalf

of a party at a scheduling or pretrial conference, or if a party or

party's attorney is substantially unprepared to participate in the

conference, or if a party or party's attorney fails to participate

in good faith, the judge, upon motion or the judge's own

initiative, may make such orders with regard thereto as are just,

and among others any of the orders provided in RCFC 37(b)(2)(B),

(C), (D). In lieu of or in addition to any other sanction, the

judge shall require the party or the attorney representing the

party or both to pay the reasonable expenses incurred because of

any noncompliance with this rule, including attorneys' fees, unless

the judge finds that the noncompliance was substantially justified

or that other circumstances make an award of expenses unjust.

(g) Additional Pretrial Procedures. See Appendix A to these rules

("Case Management Procedure") for additional provisions controlling

pretrial procedures.

-MISC1-

RULES COMMITTEE NOTE

RCFC 16 was completely revised to parallel the structure and

content of its counterpart in the Federal Rules of Civil Procedure.

The limited number of changes to the current federal rule reflect

those deemed necessary to accommodate procedural requirements

particular to this court. Except for these changes, the rule shown

conforms fully to the text of FRCP 16.

-REFTEXT-

REFERENCES IN TEXT

The Federal Rules of Evidence, referred to in subd. (c)(4), are

set out in this Appendix.

-End-

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28 USC APPENDIX IV. PARTIES 01/06/03

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TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

IV. PARTIES

-HEAD-

IV. PARTIES

-End-

-CITE-

28 USC APPENDIX Rule 17 01/06/03

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TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

IV. PARTIES

-HEAD-

Rule 17. Parties Plaintiff and Defendant; Capacity

-STATUTE-

(a) Real Party in Interest. Every action shall be prosecuted in

the name of the real party in interest. An executor, administrator,

guardian, bailee, trustee of an express trust, a party with whom or

in whose name a contract has been made for the benefit of another,

or a party authorized by statute may sue in that person's own name

without joining the party for whose benefit the action is brought.

No action shall be dismissed on the ground that it is not

prosecuted in the name of the real party in interest until a

reasonable time has been allowed after objection for ratification

of commencement of the action by, or joinder or substitution of,

the real party in interest; and such ratification, joinder, or

substitution shall have the same effect as if the action had been

commenced in the name of the real party in interest.

(b) Capacity to Sue or be Sued. The capacity of an individual,

other than one acting in a representative capacity, to sue or be

sued shall be determined by the law of the individual's domicile.

The capacity of a corporation to sue or be sued shall be determined

by the law under which it was organized. In all other cases

capacity to sue or be sued shall be determined by the law of the

applicable state, except (1) that a partnership or other

unincorporated association which has no capacity by the law of its

state may sue or be sued in its common name for the purpose of

enforcing for or against it a substantive right existing under the

Constitution or laws of the United States, and (2) that the

capacity of a receiver appointed by a court of the United States to

sue or be sued in a court of the United States is governed by Title

28, U.S.C., Sections 754 and 959(a).

(c) Infants or Incompetent Persons. Whenever an infant or

incompetent person has a representative, such as a general

guardian, committee, conservator, or other like fiduciary, the

representative may sue or defend on behalf of the infant or

incompetent person. An infant or incompetent person who does not

have a duly appointed representative may sue by a next friend or by

a guardian ad litem. The court shall appoint a guardian ad litem

for an infant or incompetent person not otherwise represented in an

action or shall make such other order as it deems proper for the

protection of the infant or incompetent person.

-MISC1-

RULES COMMITTEE NOTE

RCFC 17 was modified in minor respects in order to achieve closer

conformity with FRCP 17. A difference between the court's rule and

the corresponding federal rule occurs in subdivision (b).

Subdivision (b) of the federal rule, subtitled "Capacity to Sue or

be Sued," provides generally that, in those cases for which no rule

of decision is provided, "capacity to sue or be sued shall be

determined by the law of the state in which the district court is

held." In recognition of this court's nationwide jurisdiction, the

quoted language was rewritten by substituting "by the law of the

applicable state" for "by the law of the state in which the

district court is held."

-End-

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28 USC APPENDIX Rule 18 01/06/03

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TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

IV. PARTIES

-HEAD-

Rule 18. Joinder of Claims and Remedies

-STATUTE-

(a) Joinder of Claims. A party asserting a claim to relief as an

original claim or counterclaim, may join, either as independent or

as alternate claims, as many claims as the party has against an

opposing party. A third party may join, to the extent permitted by

law, as many claims as the party has against the opposing party.

(b) Joinder of Remedies. Whenever a claim is one heretofore

cognizable only after another claim has been prosecuted to a

conclusion, the two claims may be joined in a single action; but

the court shall grant relief in that action only in accordance with

the relative substantive rights of the parties.

-MISC1-

RULES COMMITTEE NOTE

The final sentence added to subdivision (a) was intended to

recognize both the right of a third party to assert a claim and the

limitations on that right as set forth in 41 U.S.C. Sec. 114 and

applicable case law.

-End-

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28 USC APPENDIX Rule 19 01/06/03

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TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

IV. PARTIES

-HEAD-

Rule 19. Joinder of Persons Needed for Just Adjudication

-STATUTE-

(a) Persons to be Joined if Feasible. A person who is subject to

service of process and whose joinder will not deprive the court of

jurisdiction over the subject matter of the action shall be joined

as a party in the action if (1) in the person's absence complete

relief cannot be accorded among those already parties, or (2) the

person claims an interest relating to the subject of the action and

is so situated that the disposition of the action in the person's

absence may (i) as a practical matter impair or impede the person's

ability to protect that interest or (ii) leave any of the persons

already parties subject to a substantial risk of incurring double,

multiple, or otherwise inconsistent obligations by reason of the

claimed interest. If the person has not been so joined, the court

shall order that the person be made a party. If the person should

join as a plaintiff but refuses to do so, the person may be made an

involuntary plaintiff.

(b) Determination by Court Whenever Joinder not Feasible. If a

person as described in subdivision (a)(1)-(2) hereof cannot be made

a party, the court shall determine whether in equity and good

conscience the action should proceed among the parties before it,

or should be dismissed, the absent person being thus regarded as

indispensable. The factors to be considered by the court include:

first, to what extent a judgment rendered in the person's absence

might be prejudicial to the person or those already parties;

second, the extent to which, by protective provisions in the

judgment, by the shaping of relief, or other measures, the

prejudice can be lessened or avoided; third, whether a judgment

rendered in the person's absence will be adequate; fourth, whether

the plaintiff will have an adequate remedy if the action is

dismissed for nonjoinder.

(c) Pleading Reasons for Nonjoinder. A pleading asserting a claim

for relief shall state the names, if known to the pleader, of any

persons as prescribed in subdivision (a)(1)-(2) hereof who are not

joined, and the reasons why they are not joined.

(d) Exception of Class Actions. This rule is subject to

provisions of RCFC 23.

-MISC1-

RULES COMMITTEE NOTE

Reference to RCFC 14 was deleted from subdivision (a) and other

minor changes were made in order to more closely conform to FRCP

19. Some differences, however, were retained - the most significant

being the deletion of the last sentence of FRCP 19(a) from this

court's rule. The last sentence addresses objections to venue

raised by a joined party. Such objections would not be assertable

in this court.

-End-

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28 USC APPENDIX Rule 20 01/06/03

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TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

IV. PARTIES

-HEAD-

Rule 20. Permissive Joinder of Parties

-STATUTE-

(a) Permissive Joinder. All persons may join in one action as

plaintiffs if they assert any right to relief jointly, severally,

or in the alternative in respect of or arising out of the same

transaction, occurrence, or series of transactions or occurrences

and if any question of law or fact common to all these persons will

arise in the action. A plaintiff need not be interested in

obtaining all the relief demanded. Judgment may be given for one or

more of the plaintiffs according to their respective rights to

relief.

(b) Separate Trials. The court may make such orders as will

prevent a party from being embarrassed, delayed, or put to expense

by the inclusion of a party against whom the party asserts no claim

and who asserts no claim against the party, and may order separate

trials or make other orders to prevent delay or prejudice.

-MISC1-

RULES COMMITTEE NOTE

The authority previously contained in RCFC 20(a)(1)-(2),

permitting unrestricted joinder of additional plaintiffs to a

pending multi-party action, proved cumbersome in practice and an

impediment to sound case management. The joinder of additional

plaintiffs should proceed by appropriate motion under RCFC 15.

Accordingly, RCFC 20 was modified so as to more closely parallel

the text of the corresponding Federal Rule of Civil Procedure.

-End-

-CITE-

28 USC APPENDIX Rule 21 01/06/03

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TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

IV. PARTIES

-HEAD-

Rule 21. Misjoinder and Non-Joinder of Parties

-STATUTE-

Misjoinder of parties is not ground for dismissal of an action.

Parties may be dropped or added by order of the court on motion of

any party or of its own initiative at any stage of the action and

on such terms as are just. Any claim against a party may be severed

and proceeded with separately.

-MISC1-

RULES COMMITTEE NOTE

The last sentence of the former rule, "To add plaintiffs, see

RCFC 20(a)(1)-(2)," was eliminated to more closely conform the rule

to FRCP 21.

-End-

-CITE-

28 USC APPENDIX Rule 22 01/06/03

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TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

IV. PARTIES

-HEAD-

Rule 22. Interpleader. [Not used].

-STATUTE-

-MISC1-

RULES COMMITTEE NOTE

The interpleader practice permitted under FRCP 22 is, for the

most part, incompatible with the jurisdiction exercisable by this

court. However, in those cases where the United States is in the

position of a stakeholder facing the risks of double liability,

RCFC 14 provides the means for summoning a third party.

-End-

-CITE-

28 USC APPENDIX Rule 23 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

IV. PARTIES

-HEAD-

Rule 23. Class Actions

-STATUTE-

(a) Prerequisites to a Class Action. One or more members of a

class may sue as representative parties on behalf of all only if

(1) the class is so numerous that joinder of all members is

impracticable, (2) there are questions of law or fact common to the

class, (3) the claims of the representative parties are typical of

the claims of the class, and (4) the representative parties will

fairly and adequately protect the interests of the class.

(b) Class Actions Maintainable. An action may be maintained as a

class action if the prerequisites of subdivision (a) are satisfied,

and in addition:

(1) the United States has acted or refused to act on grounds

generally applicable to the class, and

(2) the court finds that the questions of law or fact common to

the members of the class predominate over any questions affecting

only individual members, and that a class action is superior to

other available methods for the fair and efficient adjudication

of the controversy. Matters pertinent to the findings include:

(A) the interest of members of the class in individually

controlling the prosecution of separate actions; (B) the extent

and nature of any litigation concerning the controversy already

commenced by members of the class; and (C) the difficulties

likely to be encountered in the management of a class action.

(c) Determination by Order Whether Class Action to be Maintained;

Notice; Judgment; Actions Conducted Partially as Class Actions.

(1) As soon as practicable after the commencement of an action

brought as a class action, the court shall determine by order

whether it is to be so maintained. An order under this

subdivision may be conditional, and may be altered or amended

before the decision on the merits.

(2) In any class action maintained, the court shall direct to

the potential members of the class the best notice practicable

under the circumstances, including notice to all individuals who

can be identified through reasonable effort. The notice shall

advise that (A) the court will include the individual in the

class action if the individual so requests by a specified date;

and (B) the judgment(s), whether favorable or not, will bind the

member(s) of the class.

(3) The judgment in an action maintained as a class action

under subdivisions (b)(1) or (b)(2), whether or not favorable to

the class, shall include and specify or describe those to whom

the notice provided in subdivision (c)(2) was directed, and who

have requested inclusion, and whom the court finds to be members

of the class.

(4) When appropriate, (A) an action may be brought or

maintained as a class action with respect to particular issues,

or (B) a class may be divided into subclasses and each subclass

treated as a class, and the provisions of this rule shall then be

construed and applied accordingly.

(d) Orders in Conduct of Actions. In the conduct of actions to

which this rule applies, the court may make appropriate orders: (1)

determining the course of proceedings or prescribing measures to

prevent undue repetition or complication in the presentation of

evidence or argument; (2) requiring, for the protection of the

members of the class or otherwise for the fair conduct of the

action, that notice be given in such manner as the court may direct

to some or all of the members of any step in the action, or of the

proposed extent of the judgment, or of the opportunity of members

to signify whether they consider the representation fair and

adequate, to intervene and present claims or defenses, or otherwise

to come into the action; (3) imposing conditions on the

representative parties or on intervenors; (4) requiring that the

pleadings be amended to eliminate therefrom allegations as to

representation of absent persons, and that the action proceed

accordingly; (5) dealing with similar procedural matters. The

orders may be combined with an order under RCFC 16, and may be

altered or amended as may be desirable from time to time.

(e) Dismissal or Compromise. A class action shall not be

dismissed or compromised without the approval of the court, and

notice of the proposed dismissal or compromise shall be given to

all members of the class in such manner as the court directs.

(f) Appeals. [Not used.]

-MISC1-

RULES COMMITTEE NOTE

RCFC 23 was completely rewritten. Although the court's rule is

modeled largely on the comparable federal rule, there are

significant differences between the two rules. In the main, the

court's rule adopts the criteria for certifying and maintaining a

class action as set forth in Quinault Allottee Ass'n v. United

States, 197 Ct. Cl. 134, 453 F.2d 1272 (1972).

Because the relief available in this court is generally confined

to individual money claims against the United States, the

situations justifying the use of a class action are correspondingly

narrower than those addressed in FRCP 23. Thus, the court's rule

does not accommodate, inter alia, the factual situations

redressable through declaratory and injunctive relief contemplated

under FRCP (b)(1), (2).

Additionally, unlike the federal rule, the court's rule

contemplates only opt-in class certifications, not opt-out classes.

The latter were viewed as inappropriate here because of the need

for specificity in money judgments against the United States, and

the fact that the court's injunctive powers - the typical focus of

an opt-out class - are more limited than those of a district court.

Finally, the court's rule does not contain a provision comparable

to FRCP 23(f). That subdivision, which provides that a "court of

appeals may in its discretion permit an appeal from an order . . .

granting or denying class certification" has its origin in 28

U.S.C. Sec. 1292(e), which authorizes the Supreme Court to

promulgate rules that provide for an appeal of an interlocutory

decision other than those set out in Section 1292. Because no

comparable statutory authority exists for this court's promulgation

of a similar rule, subdivision (f) was omitted. It should be noted,

however, that the Court of Federal Claims may certify questions to

the Court of Appeals for the Federal Circuit pursuant to 28 U.S.C.

Secs. 1292(b) and 1295.

-End-

-CITE-

28 USC APPENDIX Rule 23.1 01/06/03

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TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

IV. PARTIES

-HEAD-

Rule 23.1. Derivative Actions by Shareholders

-STATUTE-

In a derivative action brought by one or more shareholders or

members to enforce a right of a corporation or of an unincorporated

association, the corporation or association having failed to

enforce a right which may properly be asserted by it, the complaint

shall be verified and shall allege (1) that the plaintiff was a

shareholder or member at the time of the transaction of which the

plaintiff complains or that the plaintiff's share or membership

thereafter devolved on the plaintiff by operation of law, and (2)

that the action is not a collusive one to confer jurisdiction on

this court which it would not otherwise have. The complaint shall

also allege with particularity the efforts, if any, made by the

plaintiff to obtain the action the plaintiff desires from the

directors or comparable authority and, if necessary, from the

shareholders or members, and the reasons for the plaintiff's

failure to obtain the action or for not making the effort. The

derivative action may not be maintained if it appears that the

plaintiff does not fairly and adequately represent the interests of

the shareholders or members similarly situated in enforcing the

right of the corporation or association. The action shall not be

dismissed or compromised without the approval of the court, and

notice of the proposed dismissal or compromise shall be given to

shareholders or members in such manner as the court directs.

-MISC1-

RULES COMMITTEE NOTE

This is a new rule. This version of RCFC 23.1 is in conformity

with the corresponding federal rule. The Federal Circuit has ruled

that, under certain circumstances, this court has jurisdiction to

hear shareholder derivative suits. First Hartford Corp. Pension

Plan & Trust v. United States, 194 F.3d 1279 (Fed. Cir. 1999). Cf.

Branch v. United States, 69 F.3d 1571 (Fed. Cir. 1995); and

California Housing Sec., Inc. v. United States, 959 F.2d 955 (Fed.

Cir. 1992).

-End-

-CITE-

28 USC APPENDIX Rule 23.2 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

IV. PARTIES

-HEAD-

Rule 23.2. Actions Relating to Unincorporated Associations [Not

used.]

-STATUTE-

-MISC1-

RULES COMMITTEE NOTE

This rule is procedurally unnecessary in light of the opt-in

class-action procedures of RCFC 23.

-End-

-CITE-

28 USC APPENDIX Rule 24 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

IV. PARTIES

-HEAD-

Rule 24. Intervention

-STATUTE-

(a) Intervention of Right. Upon timely application anyone shall

be permitted to intervene in an action: (1) when a statute of the

United States confers an unconditional right to intervene; or (2)

when the applicant claims an interest relating to the property or

transaction which is the subject of the action and the applicant is

so situated that the disposition of the action may as a practical

matter impair or impede the applicant's ability to protect that

interest, unless the applicant's interest is adequately represented

by existing parties.

(b) Permissive Intervention. Upon timely application anyone may

be permitted to intervene in an action: (1) when a statute of the

United States confers a conditional right to intervene; or (2) when

an applicant's claim or defense and the main action have a question

of law or fact in common. In exercising its discretion the court

shall consider whether the intervention will unduly delay or

prejudice the adjudication of the rights of the original parties.

(c) Procedure. A person desiring to intervene shall serve a

motion to intervene upon the parties as provided in RCFC 5. The

motion shall state the grounds therefor and shall be accompanied by

a pleading setting forth the claim or defense for which

intervention is sought. The same procedure shall be followed when a

statute of the United States gives a right to intervene.

-MISC1-

RULES COMMITTEE NOTE

Minor changes were made to subdivision (c) of this rule in order

to more closely conform to FRCP 24.

-End-

-CITE-

28 USC APPENDIX Rule 25 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

IV. PARTIES

-HEAD-

Rule 25. Substitution of Parties

-STATUTE-

(a) Death.

(1) If a party dies and the claim is not thereby extinguished,

the court may order substitution of the proper parties. The

motion for substitution may be made by any party or by the

successors or representatives of the deceased party, and shall be

served as provided in RCFC 5. Unless the motion for substitution

is made not later than 90 days after the death is suggested upon

the record by service of a statement of the fact of the death as

provided herein for the service of the motion, the action shall

be dismissed as to the deceased party.

(2) In the event of the death of one or more of the plaintiffs

in an action in which the right sought to be enforced survives

only to the surviving plaintiffs, the action does not abate. The

death shall be suggested upon the record and the action shall

proceed in favor of or against the surviving parties.

(b) Incompetency. If a party becomes incompetent, the court upon

motion served as provided in subdivision (a) of this rule may allow

the action to be continued by or against the party's

representative.

(c) Transfer of Interest. In case of any transfer of interest,

the action may be continued by or against the original party,

unless the court upon motion directs the person to whom the

interest is transferred to be substituted in the action or joined

with the original party. Service of the motion shall be made as

provided in subdivision (a) of this rule.

(d) Public Officers; Death or Separation from Office. [Not used.]

-MISC1-

RULES COMMITTEE NOTE

RCFC 25 omits the text of subdivision (d) of FRCP 25 which

addresses the substitution of a successor in an action naming a

public officer who dies or is separated from service while the

action is pending.

-End-

-CITE-

28 USC APPENDIX V. DEPOSITIONS AND DISCOVERY 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

V. DEPOSITIONS AND DISCOVERY

-HEAD-

V. DEPOSITIONS AND DISCOVERY

-End-

-CITE-

28 USC APPENDIX Rule 26 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

V. DEPOSITIONS AND DISCOVERY

-HEAD-

Rule 26. General Provisions Governing Discovery; Duty of Disclosure

-STATUTE-

(a) Required Disclosures; Methods to Discover Additional Matter.

(1) Initial Disclosures. Except in categories of proceedings

specified in RCFC 26(a)(1)(E), or to the extent otherwise

stipulated or directed by order, a party must, without awaiting a

discovery request, provide to other parties:

(A) the name and, if known, the address and telephone number

of each individual likely to have discoverable information that

the disclosing party may use to support its claims or defenses,

unless solely for impeachment, identifying the subjects of the

information;

(B) a copy of, or a description by category and location of,

all documents, data compilations, and tangible things that are

in the possession, custody, or control of the party and that

the disclosing party may use to support its claims or defenses,

unless solely for impeachment; and

(C) a computation of any category of damages claimed by the

disclosing party, making available for inspection and copying

as under RCFC 34 the documents or other evidentiary material,

not privileged or protected from disclosure, on which such

computation is based, including materials bearing on the nature

and extent of injuries suffered.

(D) [Not used.]

(E) The following categories of proceedings are exempt from

initial disclosure under RCFC 26(a)(1):

(i) an action for review on an administrative record,

including procurement protest and military pay cases;

(ii) [Not used.];

(iii) an action brought without counsel by a person in

custody of the United States, a state, or a state

subdivision;

(iv, v, vi and vii) [Not used.];

(viii) an action to enforce an arbitration award; and

(ix) an action under the National Vaccine Injury

Compensation Act.

These disclosures must be made within 14 days after the filing of

the Joint Preliminary Status Report (see Appendix A ¶ 4)

unless a different time is set by stipulation or court order, or

unless a party objects during the Early Meeting of Counsel (see

Appendix A ¶ 3) that initial disclosures are not appropriate

in the circumstances of the action and states the objection in the

Joint Preliminary Status Report. In ruling on the objection, the

court must determine what disclosures - if any - are to be made,

and set the time for disclosure. Any party first served or

otherwise joined after the Joint Preliminary Status Report must

make these disclosures within 30 days after being served or joined

unless a different time is set by stipulation or court order. A

party must make its initial disclosures based on the information

then reasonably available to it and is not excused from making its

disclosures because it has not fully completed its investigation of

the case or because it challenges the sufficiency of another

party's disclosures or because another party has not made its

disclosures.

(2) Disclosure of Expert Testimony.

(A) In addition to the disclosures required by paragraph (1),

a party shall disclose to other parties the identity of any

person who may be used at trial to present evidence under Rules

702, 703, or 705 of the Federal Rules of Evidence.

(B) Except as otherwise stipulated or directed by the court,

this disclosure shall, with respect to a witness who is

retained or specially employed to provide expert testimony in

the case or whose duties as an employee of the party regularly

involve giving expert testimony, be accompanied by a written

report prepared and signed by the witness. The report shall

contain a complete statement of all opinions to be expressed

and the basis and reasons therefor; the data or other

information considered by the witness in forming the opinions;

any exhibits to be used as a summary of or support for the

opinions; the qualifications of the witness, including a list

of all publications authored by the witness within the

preceding ten years; the compensation to be paid for the study

and testimony; and a listing of any other cases in which the

witness has testified as an expert at trial or by deposition

within the preceding four years.

(C) These disclosures shall be made at the times and in the

sequence directed by the court. In the absence of other

directions from the court or stipulation by the parties, see

Appendix A ¶¶ 5, 8, the disclosures shall be made at

least 70 days before the scheduled close of discovery or, if

the evidence is intended solely to contradict or rebut evidence

on the same subject matter identified by another party under

paragraph (2)(B), within 30 days after the disclosure made by

the other party. The parties shall supplement these disclosures

when required under subdivision (e)(1).

(3) Pretrial Disclosures. [Not used. See Appendix A

¶¶ 13, 15, 16.]

(4) Form of Disclosures. Unless the court orders otherwise, all

disclosures under RCFC 26(a)(1) through (3) must be made in

writing, signed, and served.

(5) Methods to Discover Additional Matter. Parties may obtain

discovery by one or more of the following methods: depositions

upon oral examination or written questions; written

interrogatories; production of documents or things or permission

to enter upon land or other property under RCFC 34 or

45(a)(1)(C), for inspection and other purposes; physical and

mental examinations; and requests for admission.

(b) Discovery Scope and Limits. Unless otherwise limited by order

of the court in accordance with these rules, the scope of discovery

is as follows:

(1) In General. Parties may obtain discovery regarding any

matter, not privileged, that is relevant to the claim or defense

of any party, including the existence, description, nature,

custody, condition, and location of any books, documents, or

other tangible things and the identity and location of persons

having knowledge of any discoverable matter. For good cause, the

court may order discovery of any matter relevant to the subject

matter involved in the action. Relevant information need not be

admissible at the trial if the discovery appears reasonably

calculated to lead to the discovery of admissible evidence. All

discovery is subject to the limitations imposed by RCFC

26(b)(2)(i), (ii), and (iii).

(2) Limitations. By order, the court may alter the limits in

these rules on the number of depositions and interrogatories or

the length of depositions under RCFC 30. By order, the court may

also limit the number of requests under RCFC 36. The frequency or

extent of use of the discovery methods otherwise permitted under

these rules shall be limited by the court if it determines that:

(i) the discovery sought is unreasonably cumulative or

duplicative, or is obtainable from some other source that is more

convenient, less burdensome, or less expensive; (ii) the party

seeking discovery has had ample opportunity by discovery in the

action to obtain the information sought; or (iii) the burden or

expense of the proposed discovery outweighs its likely benefit,

taking into account the needs of the case, the amount in

controversy, the parties' resources, the importance of the issues

at stake in the litigation, and the importance of the proposed

discovery in resolving the issues. The court may act upon its own

initiative after reasonable notice or pursuant to a motion under

RCFC 26(c).

(3) Trial Preparation: Materials. Subject to the provisions of

subdivision (b)(4), a party may obtain discovery of documents and

tangible things otherwise discoverable under subdivision (b)(1)

of this rule and prepared in anticipation of litigation or for

trial by or for another party or by or for that other party's

representative (including the other party's attorney, consultant,

surety, indemnitor, insurer, or agent) only upon a showing that

the party seeking discovery has substantial need of the materials

in the preparation of the party's case and that the party is

unable without undue hardship to obtain the substantial

equivalent of the materials by other means. In ordering discovery

of such materials when the required showing has been made, the

court shall protect against disclosure of the mental impressions,

conclusions, opinions, or legal theories of an attorney or other

representative of a party concerning the litigation.

A party may obtain without the required showing a statement

concerning the action or its subject matter previously made by that

party. Upon request, a person not a party may obtain without the

required showing a statement concerning the action or its subject

matter previously made by that person. If the request is refused,

the person may move for a court order. The provisions of RCFC

37(a)(4) apply to the award of expenses incurred in relation to the

motion. For purposes of this paragraph, a statement previously made

is (A) a written statement signed or otherwise adopted or approved

by the person making it, or (B) a stenographic, mechanical,

electrical, or other recording, or a transcription thereof, which

is a substantially verbatim recital of an oral statement by the

person making it and contemporaneously recorded.

(4) Trial Preparation: Experts.

(A) A party may depose any person who has been identified as

an expert whose opinions may be presented at trial. If a report

from the expert is required under subdivision (a)(2)(B), the

deposition shall not be conducted until after the report is

provided.

(B) A party may, through interrogatories or by deposition,

discover facts known or opinions held by an expert who has been

retained or specially employed by another party in anticipation

of litigation or preparation for trial and who is not expected

to be called as a witness at trial only as provided in RCFC

35(b) or upon a showing of exceptional circumstances under

which it is impracticable for the party seeking discovery to

obtain facts or opinions on the same subject by other means.

(C) Unless manifest injustice would result, (i) the court

shall require that the party seeking discovery pay the expert a

reasonable fee for time spent in responding to the discovery

under this subdivision; and (ii) with respect to discovery

obtained under subdivision (b)(4)(B) of this rule the court

shall require the party seeking discovery to pay the other

party a fair portion of the fees and expenses reasonably

incurred by the latter party in obtaining facts and opinions

from the expert.

(5) Claims of Privilege or Protection of Trial Preparation

Materials. When a party withholds information otherwise

discoverable under these rules by claiming that it is privileged

or subject to protection as trial preparation material, the party

shall make the claim expressly and shall describe the nature of

the documents, communications, or things not produced or

disclosed in a manner that, without revealing information itself

privileged or protected, will enable other parties to assess the

applicability of the privilege or protection.

(c) Protective Orders. Upon motion by a party or by the person

from whom discovery is sought, accompanied by a certification that

the movant has in good faith conferred or attempted to confer with

other affected parties in an effort to resolve the dispute without

court action, and for good cause shown, the court may make any

order which justice requires to protect a party or person from

annoyance, embarrassment, oppression, or undue burden or expense,

including one or more of the following:

(1) that the disclosure or discovery not be had;

(2) that the disclosure or discovery may be had only on

specified terms and conditions, including a designation of the

time or place;

(3) that the discovery may be had only by a method of discovery

other than that selected by the party seeking discovery;

(4) that certain matters not be inquired into, or that the

scope of the disclosure or discovery be limited to certain

matters;

(5) that discovery be conducted with no one present except

persons designated by the court;

(6) that a deposition, after being sealed, be opened only by

order of the court;

(7) that a trade secret or other confidential research,

development, or commercial information not be revealed or be

revealed only in a designated way; and

(8) that the parties simultaneously file specified documents or

information enclosed in sealed envelopes to be opened as directed

by the court.

If the motion for a protective order is denied in whole or in part,

the court may, on such terms and conditions as are just, order that

any party or other person provide or permit discovery. The

provisions of RCFC 37(a)(4) apply to award of expenses incurred in

relation to the motion.

(d) Timing and Sequence of Discovery. Except in categories of

proceedings exempted from initial disclosure under RCFC

26(a)(1)(E), or when authorized under these rules or by order or

agreement of the parties, a party may not seek discovery from any

source before the parties have conferred as required by Appendix A

¶ 3. Unless the court upon motion, for the convenience of

parties and witnesses and in the interests of justice, orders

otherwise, methods of discovery may be used in any sequence, and

the fact that a party is conducting discovery, whether by

deposition or otherwise, does not operate to delay any other

party's discovery.

(e) Supplementation of Disclosures and Responses. A party who has

made a disclosure under subdivision (a) or responded to a request

for discovery with a disclosure or response is under a duty to

supplement or correct the disclosure or response to include

information thereafter acquired if ordered by the court or in the

following circumstances:

(1) A party is under a duty to supplement at appropriate

intervals its disclosures under subdivision (a) if the party

learns that in some material respect the information disclosed is

incomplete or incorrect and if the additional or corrective

information has not otherwise been made known to the other

parties during the discovery process or in writing. With respect

to testimony of an expert from whom a report is required under

subdivision (a)(2)(B) the duty extends both to information

contained in the report and to information provided through a

deposition of the expert.

(2) A party is under a duty seasonably to amend a prior

response to an interrogatory, request for production, or request

for admission if the party learns that the response is in some

material respect incomplete or incorrect and if the additional or

corrective information has not otherwise been made known to the

other parties during the discovery process or in writing.

(f) Conference of Parties; Planning for Discovery. [Not used. See

Appendix A ¶ 3.]

(g) Signing of Disclosures, Discovery Requests, Responses, and

Objections.

(1) Every disclosure made pursuant to subdivision (a)(1) or

Appendix A ¶¶ 13, 15, and 16 shall be signed by the

attorney of record in the attorney's individual name, whose

address shall be stated. An unrepresented party shall sign the

disclosure and state the party's address. The signature of the

attorney or party constitutes a certification that to the best of

the signer's knowledge, information, and belief, formed after a

reasonable inquiry, the disclosure is complete and correct as of

the time it is made.

(2) Every discovery request, response, or objection made by a

party represented by an attorney shall be signed by the attorney

of record in the attorney's individual name, whose address shall

be stated. An unrepresented party shall sign the request,

response, or objection and state the party's address. The

signature of the attorney or party constitutes a certification

that to the best of the signer's knowledge, information, and

belief, formed after a reasonable inquiry, the request, response,

or objection is:

(A) consistent with these rules and warranted by existing law

or a good faith argument for the extension, modification, or

reversal of existing law;

(B) not interposed for any improper purpose, such as to

harass or to cause unnecessary delay or needless increase in

the cost of litigation; and

(C) not unreasonable or unduly burdensome or expensive, given

the needs of the case, the discovery already had in the case,

the amount in controversy, and the importance of the issues at

stake in the litigation.

If a request, response, or objection is not signed, it shall be

stricken unless it is signed promptly after the omission is called

to the attention of the party making the request, response, or

objection, and a party shall not be obligated to take any action

with respect to it until it is signed.

(3) If without substantial justification a certification is

made in violation of the rule, the court, upon motion or upon its

own initiative, shall impose upon the person who made the

certification, the party on whose behalf the disclosure, request,

response, or objection is made, or both, an appropriate sanction,

which may include an order to pay the amount of the reasonable

expenses incurred because of the violation, including a

reasonable attorney's fee.

-MISC1-

RULES COMMITTEE NOTE

RCFC 26 has been revised to parallel the structure and content of

its counterpart in the Federal Rules of Civil Procedure. The

limited number of changes to the current federal rule, as amended

in 2000, reflect those deemed necessary to accommodate the nature

and jurisdiction of this court. Except for these changes, the rule

shown conforms fully to the text of FRCP 26. Because the Appendix A

Early Meeting of Counsel substantially accomplishes the same

purpose as the FRCP 26(f) conference of counsel, the timing of

initial disclosures was keyed to the former. Consequently, in lieu

of the language of FRCP 26(f), cross reference is made to Appendix

A ¶ 3.

-REFTEXT-

REFERENCES IN TEXT

The National Vaccine Injury Compensation Act, referred to in

subd. (a)(1)(E)(ix), probably means subtitle 2 of title XXI of act

July 1, 1944, ch. 373, as added by Pub. L. 99-660, title III, Sec.

311(a), Nov. 14, 1986, 100 Stat. 3758, as amended, which is

classified generally to part 2 (Sec. 300aa-10 et seq.) of

subchapter XIX of chapter 6A of Title 42, The Public Health and

Welfare. For complete classification of this Act to the Code, see

Tables.

The Federal Rules of Evidence, referred to in subd. (a)(2)(A),

are set out in this Appendix.

-End-

-CITE-

28 USC APPENDIX Rule 27 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

V. DEPOSITIONS AND DISCOVERY

-HEAD-

Rule 27. Depositions Before Action or Pending Appeal

-STATUTE-

(a) Before Action.

(1) Petition. A person who desires to perpetuate testimony

regarding any matter that may be cognizable in the court may file

a verified petition. The petition shall be entitled in the name

of the petitioner and shall show: 1, that the petitioner expects

to be a party to an action cognizable in the court but is

presently unable to bring it or cause it to be brought, 2, the

subject matter of the expected action and the petitioner's

interest therein, 3, the facts which the petitioner desires to

establish by the proposed testimony and the reasons for desiring

to perpetuate it, 4, [Not used.], and 5, the names and addresses

of the persons to be examined and the substance of the testimony

which the petitioner expects to elicit from each, and shall ask

for an order authorizing the petitioner to take the depositions

of the persons to be examined named in the petition, for the

purpose of perpetuating their testimony.

(2) Notice and Service. The petition shall be served upon the

United States in the same manner as a complaint. See RCFC 4. The

petitioner may thereafter, by motion served upon counsel for the

United States (see RCFC 5), request a hearing or the court may,

sua sponte, by order, set a hearing on the petition.

(3) Order and Examination. If the court is satisfied that the

perpetuation of the testimony may prevent a failure or delay of

justice, it shall make an order designating or describing the

persons whose depositions may be taken and specifying the subject

matter of the examination and whether the depositions shall be

taken upon oral examination or written interrogatories. The

depositions may then be taken in accordance with these rules; and

the court may make orders of the character provided for by RCFC

34 and 35.

(4) Use of Deposition. If a deposition to perpetuate testimony

is taken under these rules, it may be used in any action

involving the same subject matter subsequently brought in this

court, in accordance with the provisions of RCFC 32(a).

(b) Pending Appeal. If an appeal has been taken from a judgment

of the court or before the taking of an appeal if the time therefor

has not expired, the court may allow the taking of the depositions

of witnesses to perpetuate their testimony for use in the event of

further proceedings in this court. In such case the party who

desires to perpetuate the testimony may make a motion for leave to

take the depositions, upon the same notice and service thereof as

if the action was pending in this court. The motion shall show (1)

the names and addresses of persons to be examined and the substance

of the testimony which the party expects to elicit from each; (2)

the reasons for perpetuating their testimony. If the court finds

that the perpetuation of the testimony is proper to avoid a failure

or delay of justice, it may make an order allowing the depositions

to be taken and may make orders of the character provided for by

RCFC 34 and 35, and thereupon the depositions may be taken and used

in the same manner and under the same conditions as are prescribed

in these rules for depositions taken in actions pending in this

court.

(c) Perpetuation by Action. [Not used.]

-MISC1-

RULES COMMITTEE NOTE

RCFC 27 closely parallels FRCP 27, the only differences being

those necessary for compatibility with the jurisdiction and other

rules of the court.

-End-

-CITE-

28 USC APPENDIX Rule 28 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

V. DEPOSITIONS AND DISCOVERY

-HEAD-

Rule 28. Persons Before Whom Depositions may be Taken

-STATUTE-

(a) Within the United States. Within the United States or within

a territory or insular possession subject to the jurisdiction of

the United States, depositions shall be taken before an officer

authorized to administer oaths by the laws of the United States or

of the place where the examination is held, or before a person

appointed by the court. A person so appointed has power to

administer oaths and take testimony. The term officer as used in

RCFC 30, 31 and 32 includes a person appointed by the court or

designated by the parties under RCFC 29.

(b) In Foreign Countries. Depositions may be taken in a foreign

country (1) pursuant to any applicable treaty or convention, or (2)

pursuant to a letter of request (whether or not captioned a letter

rogatory), or (3) on notice before a person authorized to

administer oaths in the place where the examination is held, either

by the law thereof or by the law of the United States, or (4)

before a person commissioned by the court, and a person so

commissioned shall have the power by virtue of the commission to

administer any necessary oath and take testimony. A commission or a

letter of request shall be issued on application and notice and on

terms that are just and appropriate. It is not requisite to the

issuance of a commission or a letter of request that the taking of

the deposition in any other manner is impracticable or

inconvenient; and both a commission and a letter of request may be

issued in proper cases. A notice or commission may designate the

person before whom the deposition is to be taken either by name or

descriptive title. A letter of request may be addressed "To the

Appropriate Authority in [here name the country]." When a letter of

request or any other device is used pursuant to any applicable

treaty or convention, it shall be captioned in the form prescribed

by that treaty or convention. Evidence obtained in response to a

letter of request need not be excluded merely because it is not a

verbatim transcript, because the testimony was not taken under

oath, or because of any similar departure from the requirements for

depositions taken within the United States under these rules.

(c) Disqualification for Interest. No deposition shall be taken

before a person who is a relative or employee or attorney or

counsel of any of the parties, or is a relative or employee of such

attorney or counsel, or is financially interested in the action.

-MISC1-

RULES COMMITTEE NOTE

RCFC 28 parallels in form and content FRCP 28. The single

difference between the two rules occurs in subdivision (a): the

court's rule eliminates the reference to other courts by omitting

the phrasing "in which the action is pending."

-End-

-CITE-

28 USC APPENDIX Rule 29 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

V. DEPOSITIONS AND DISCOVERY

-HEAD-

Rule 29. Stipulations Regarding Discovery Procedure

-STATUTE-

Unless otherwise directed by the court, the parties may by

written stipulation (1) provide that depositions may be taken

before any person, at any time or place, upon any notice, and in

any manner and when so taken may be used like other depositions,

and (2) modify other procedures governing or limitations placed

upon discovery, except that stipulations extending the time

provided in RCFC 33, 34, and 36 for responses to discovery may, if

they would interfere with any time set for completion of discovery,

for hearing of a motion, or for trial, be made only with the

approval of the court.

-MISC1-

RULES COMMITTEE NOTE

RCFC 29 conforms to FRCP 29.

-End-

-CITE-

28 USC APPENDIX Rule 30 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

V. DEPOSITIONS AND DISCOVERY

-HEAD-

Rule 30. Depositions Upon Oral Examination

-STATUTE-

(a) When Depositions May Be Taken; When Leave Required.

(1) A party may take the testimony of any person, including a

party, by deposition upon oral examination without leave of court

except as provided in paragraph (2). The attendance of witnesses

may be compelled by subpoena as provided in RCFC 45.

(2) A party must obtain leave of court, which shall be granted

to the extent consistent with the principles stated in RCFC

26(b)(2), if the person to be examined is confined in prison or

if, without the written stipulation of the parties,

(A) a proposed deposition would result in more than ten

depositions being taken under this rule or RCFC 31 by the

plaintiffs, or by the defendants, or by third-party defendants;

(B) the person to be examined already has been deposed in the

case; or

(C) a party seeks to take a deposition before the time

specified in RCFC 26(d) unless the notice contains a

certification, with supporting facts, that the person to be

examined is expected to leave the United States and be

unavailable for examination in this country unless deposed

before that time.

(b) Notice of Examination: General Requirements; Method of

Recording; Production of Documents and Things; Deposition of

Organization; Deposition by Telephone.

(1) A party desiring to take the deposition of any person upon

oral examination shall give reasonable notice in writing to every

other party to the action. The notice shall state the time and

place for taking the deposition and the name and address of each

person to be examined, if known, and, if the name is not known, a

general description sufficient to identify the person or the

particular class or group to which the person belongs. If a

subpoena duces tecum is to be served on the person to be

examined, the designation of the materials to be produced as set

forth in the subpoena shall be attached to, or included in, the

notice.

(2) The party taking the deposition shall state in the notice

the method by which the testimony shall be recorded. Unless the

court orders otherwise, it may be recorded by sound,

sound-and-visual, or stenographic means, and the party taking the

deposition shall bear the cost of the recording. Any party may

arrange for a transcription to be made from the recording of a

deposition taken by non-stenographic means.

(3) With prior notice to the deponent and other parties, any

party may designate another method to record the deponent's

testimony in addition to the method specified by the person

taking the deposition. The additional record or transcript shall

be made at that party's expense unless the court otherwise

orders.

(4) Unless otherwise agreed by the parties, a deposition shall

be conducted before an officer appointed or designated under RCFC

28 and shall begin with a statement on the record by the officer

that includes (A) the officer's name and business address; (B)

the date, time, and place of the deposition; (C) the name of the

deponent; (D) the administration of the oath or affirmation to

the deponent; and (E) an identification of all persons present.

If the deposition is recorded other than stenographically, the

officer shall repeat items (A) through (C) at the beginning of

each unit of recorded tape or other recording medium. The

appearance or demeanor of deponents or attorneys shall not be

distorted through camera or sound-recording techniques. At the

end of the deposition, the officer shall state on the record that

the deposition is complete and shall set forth any stipulations

made by counsel concerning the custody of the transcript or

recording and the exhibits, or concerning other pertinent

matters.

(5) The notice to a party deponent may be accompanied by a

request made in compliance with RCFC 34 for the production of

documents and tangible things at the taking of the deposition.

The procedure of RCFC 34 shall apply to the request.

(6) A party may in the party's notice and in a subpoena name as

the deponent a public or private corporation or a partnership or

association or governmental agency and describe with reasonable

particularity the matters on which examination is requested. In

that event, the organization so named shall designate one or more

officers, directors, or managing agents, or other persons who

consent to testify on its behalf, and may set forth, for each

person designated, the matters on which the person will testify.

A subpoena shall advise a non-party organization of its duty to

make such a designation. The persons so designated shall testify

as to matters known or reasonably available to the organization.

This subdivision (b)(6) does not preclude taking a deposition by

any other procedure authorized in these rules.

(7) The parties may stipulate in writing or the court may upon

motion order that a deposition be taken by telephone or other

remote electronic means. For the purposes of this rule and RCFC

28(a), a deposition taken by such means is taken at the place

where the deponent is to answer questions.

(c) Examination and Cross-Examination; Record of Examination;

Oath; Objections.

Examination and cross-examination of witnesses may proceed as

permitted at the trial under the provisions of the Federal Rules of

Evidence except Rules 103 and 615. The officer before whom the

deposition is to be taken shall put the witness on oath or

affirmation and shall personally, or by someone acting under the

officer's direction and in the officer's presence, record the

testimony of the witness. The testimony shall be taken

stenographically or recorded by any other method authorized by

subdivision (b)(2) of this rule. All objections made at the time of

the examination to the qualifications of the officer taking the

deposition, to the manner of taking it, to the evidence presented,

to the conduct of any party, or to any other aspect of the

proceedings shall be noted by the officer upon the record of the

deposition; but the examination shall proceed, with the testimony

being taken subject to the objections. In lieu of participating in

the oral examination, parties may serve written questions in a

sealed envelope on the party taking the deposition and the party

taking the deposition shall transmit them to the officer, who shall

propound them to the witness and record the answers verbatim.

(d) Schedule and Duration; Motion to Terminate or Limit

Examination.

(1) Any objection during a deposition must be stated concisely

and in a non-argumentative and non-suggestive manner. A person

may instruct a deponent not to answer only when necessary to

preserve a privilege, to enforce a limitation directed by the

court, or to present a motion under RCFC 30(d)(4).

(2) Unless otherwise authorized by the court or stipulated by

the parties, a deposition is limited to one day of seven hours.

The court must allow additional time consistent with RCFC

26(b)(2) if needed for a fair examination of the deponent or if

the deponent or another person, or other circumstance, impedes or

delays the examination.

(3) If the court finds that any impediment, delay, or other

conduct has frustrated the fair examination of the deponent, it

may impose upon the persons responsible an appropriate sanction,

including the reasonable costs and attorney's fees incurred by

any parties as a result thereof.

(4) At any time during the deposition, on motion of a party or

of the deponent and upon a showing that the examination is being

conducted in bad faith or in such manner as unreasonably to

annoy, embarrass, or oppress the deponent or party, the court may

order the officer conducting the examination to cease forthwith

from taking the deposition, or may limit the scope and manner of

the taking of the deposition as provided in RCFC 26(c). If the

order made terminates the examination, it may be resumed

thereafter only upon the order of the court. Upon demand of the

objecting party or deponent, the taking of the deposition must be

suspended for the time necessary to make a motion for an order.

The provisions of RCFC 37(a)(4) apply to the award of expenses

incurred in relation to the motion.

(e) Review by Witness; Changes; Signing.

If requested by the deponent or a party before completion of the

deposition, the deponent shall have 30 days after being notified by

the officer that the transcript or recording is available in which

to review the transcript or recording and, if there are changes in

form or substance, to sign a statement reciting such changes and

the reasons given by the deponent for making them. The officer

shall indicate in the certificate prescribed by subdivision (f)(1)

whether any review was requested and, if so, shall append any

changes made by the deponent during the period allowed.

(f) Certification and Delivery by Officer; Exhibits; Copies.

(1) The officer must certify that the witness was duly sworn by

the officer and that the deposition is a true record of the

testimony given by the witness. This certificate must be in

writing and accompany the record of the deposition. Unless

otherwise ordered by the court, the officer must securely seal

the deposition in an envelope or package indorsed with the title

of the action and marked "Deposition of [here insert name of

witness]" and must promptly send it to the attorney who arranged

for the transcript or recording, who must store it under

conditions that will protect it against loss, destruction,

tampering, or deterioration. Documents and things produced for

inspection during the examination of the witness must, upon the

request of a party, be marked for identification and annexed to

the deposition and may be inspected and copied by any party,

except that if the person producing the materials desires to

retain them the person may (A) offer copies to be marked for

identification and annexed to the deposition and to serve

thereafter as originals if the person affords to all parties fair

opportunity to verify the copies by comparison with the

originals, or (B) offer the originals to be marked for

identification, after giving to each party an opportunity to

inspect and copy them, in which event the materials may then be

used in the same manner as if annexed to the deposition. Any

party may move for an order that the original be annexed to and

returned with the deposition to the court, pending final

disposition of the case.

(2) Unless otherwise ordered by the court or agreed by the

parties, the officer shall retain stenographic notes of any

deposition taken stenographically or a copy of the recording of

any deposition taken by another method. Upon payment of

reasonable charges therefor, the officer shall furnish a copy of

the transcript or other recording of the deposition to any party

or to the deponent.

(3) [Not used.]

(g) Failure to Attend or to Serve Subpoena; Expenses.

(1) If the party giving the notice of the taking of a

deposition fails to attend and proceed therewith and another

party attends in person or by attorney pursuant to the notice,

the court may order the party giving the notice to pay to such

other party the reasonable expenses incurred by that party and

that party's attorney in attending, including reasonable

attorney's fees.

(2) If the party giving the notice of the taking of a

deposition of a witness fails to serve a subpoena upon the

witness and the witness because of such failure does not attend,

and if another party attends in person or by attorney because

that party expects the deposition of that witness to be taken,

the court may order the party giving the notice to pay to such

other party the reasonable expenses incurred by that party and

that party's attorney in attending, including reasonable

attorney's fees.

-MISC1-

RULES COMMITTEE NOTE

RCFC 30 parallels the structure and content of its counterpart in

the Federal Rules of Civil Procedure. The limited number of

differences reflect those necessary for compatibility with the

jurisdiction and other rules of the court.

-REFTEXT-

REFERENCES IN TEXT

The Federal Rules of Evidence, referred to in subd. (c), are set

out in this Appendix.

-End-

-CITE-

28 USC APPENDIX Rule 31 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

V. DEPOSITIONS AND DISCOVERY

-HEAD-

Rule 31. Depositions Upon Written Questions

-STATUTE-

(a) Serving Questions; Notice.

(1) A party may take the testimony of any person, including a

party, by deposition upon written questions without leave of

court except as provided in paragraph (2). The attendance of

witnesses may be compelled by the use of subpoena as provided in

RCFC 45.

(2) A party must obtain leave of court, which shall be granted

to the extent consistent with the principles stated in RCFC

26(b)(2), if the person to be examined is confined in prison or

if, without the written stipulation of the parties,

(A) a proposed deposition would result in more than ten

depositions being taken under this rule or RCFC 30 by the

plaintiffs, or by the defendants, or by third-party defendants;

(B) the person to be examined has already been deposed in the

case; or

(C) a party seeks to take a deposition before the time

specified in RCFC 26(d).

(3) A party desiring to take a deposition upon written

questions shall serve them upon every other party with a notice

stating (1) the name and address of the person who is to answer

them, if known, and if the name is not known, a general

description sufficient to identify the person or the particular

class or group to which the person belongs, and (2) the name or

descriptive title and address of the officer before whom the

deposition is to be taken. A deposition upon written questions

may be taken of a public or private corporation or a partnership

or association or governmental agency in accordance with the

provisions of RCFC 30(b)(6).

(4) Within 14 days after the notice and written questions are

served, a party may serve cross questions upon all other parties.

Within 7 days after being served with cross questions, a party

may serve redirect questions upon all other parties. Within 7

days after being served with redirect questions, a party may

serve recross questions upon all other parties. The court may for

cause shown enlarge or shorten the time.

(b) Officer to Take Responses and Prepare Record. A copy of the

notice and copies of all questions served shall be delivered by the

party taking the deposition to the officer designated in the

notice, who shall proceed promptly, in the manner provided by RCFC

30(c), (e) and (f), to take the testimony of the witness in

response to the questions and to prepare, certify, and deliver the

deposition to the party taking it, attaching thereto the copy of

the notice and the questions received by the officer.

(c) Notice of Receipt. When the deposition is received, the party

taking it shall promptly give notice thereof to all other parties.

-MISC1-

RULES COMMITTEE NOTE

RCFC 31 closely parallels the text of FRCP 31. Subdivision (a) is

identical in wording to the current federal civil rule.

Subdivisions (b) and (c) are nearly identical, the only differences

being those necessary to reflect the court's practice of not

requiring depositions to be filed.

-End-

-CITE-

28 USC APPENDIX Rule 32 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

V. DEPOSITIONS AND DISCOVERY

-HEAD-

Rule 32. Use of Depositions in Court Proceedings

-STATUTE-

(a) Use of Depositions. At the trial or upon the hearing of a

motion or an interlocutory proceeding, any part or all of a

deposition, so far as admissible under the rules of evidence

applied as though the witness were then present and testifying, may

be used against any party who was present or represented at the

taking of the deposition or who had reasonable notice thereof, in

accordance with any of the following provisions:

(1) Any deposition may be used by any party for the purpose of

contradicting or impeaching the testimony of deponent as a

witness, or for any other purpose permitted by the Federal Rules

of Evidence.

(2) The deposition of a party or of anyone who at the time of

taking the deposition was an officer, director, or managing

agent, or a person designated under RCFC 30(b)(6) or 31(a) to

testify on behalf of a public or private corporation, partnership

or association or governmental agency which is a party may be

used by an adverse party for any purpose.

(3) The deposition of a witness, whether or not a party, may be

used by any party for any purpose if the court finds:

(A) that the witness is dead; or

(B) that the witness is out of the United States, unless it

appears that the absence of the witness was procured by the

party offering the deposition; or

(C) that the witness is unable to attend or testify because

of age, illness, infirmity, or imprisonment; or

(D) that the party offering the deposition has been unable to

procure the attendance of the witness by subpoena; or

(E) upon application and notice, that the witness is at a

greater distance than 100 miles from the place of trial or

hearing, unless the court also finds (i) that the absence of

the witness was procured by the party offering the deposition

or (ii) that it is not in the interests of justice, with due

regard to the importance of presenting the testimony of

witnesses orally in open court, to allow the deposition to be

used; or

(F) upon application and notice, that such exceptional

circumstances exist as to make it desirable, in the interest of

justice and with due regard to the importance of presenting the

testimony of witnesses orally in open court, to allow the

deposition to be used.

A deposition taken without leave of court pursuant to a notice

under RCFC 30(a)(2)(C) shall not be used against a party who

demonstrates that, when served with the notice, it was unable

through the exercise of diligence to obtain counsel to represent it

at the taking of the deposition; nor shall a deposition be used

against a party who, having received less than 11 days notice of a

deposition, has promptly upon receiving such notice filed a motion

for a protective order under RCFC 26(c)(2) requesting that the

deposition not be held or be held at a different time or place and

such motion is pending at the time the deposition is held.

(4) If only part of a deposition is offered in evidence by a

party, an adverse party may require the offeror to introduce any

other part which ought in fairness to be considered with the part

introduced, and any party may introduce any other parts.

Substitution of parties pursuant to RCFC 25 does not affect the

right to use depositions previously taken; and, when an action

has been brought in any court of the United States or of any

state and another action involving the same subject matter is

afterward brought between the same parties or their

representatives or successors in interest, all depositions

lawfully taken and duly filed in the former action may be used in

the latter as if originally taken therefor. A deposition

previously taken may also be used as permitted by the Federal

Rules of Evidence.

(b) Objections to Admissibility. Subject to the provisions of

RCFC 28(b) and subdivision (d)(3) of this rule, objection may be

made at the trial or hearing to receiving in evidence any

deposition or part thereof for any reason which would require the

exclusion of the evidence if the witness were then present and

testifying.

(c) Form of Presentation. Except as otherwise directed by the

court, a party offering deposition testimony pursuant to this rule

may offer it in stenographic or nonstenographic form, but, if in

nonstenographic form, the party shall also provide the court with a

transcript of the portions so offered.

(d) Effect of Errors and Irregularities in Depositions.

(1) As to Notice. All errors and irregularities in the notice

for taking a deposition are waived unless written objection is

promptly served upon the party giving the notice.

(2) As to Disqualification of Officer. Objection to taking a

deposition because of disqualification of the officer before whom

it is to be taken is waived unless made before the taking of the

deposition begins or as soon thereafter as the disqualification

becomes known or could be discovered with reasonable diligence.

(3) As to Taking of Deposition.

(A) Objections to the competency of a witness or to the

competency, relevancy, or materiality of testimony are not

waived by failure to make them before or during the taking of

the deposition, unless the ground of the objection is one which

might have been obviated or removed if presented at that time.

(B) Errors and irregularities occurring at the oral

examination in the manner of taking the deposition, in the form

of the questions or answers, in the oath or affirmation, or in

the conduct of parties, and errors of any kind which might be

obviated, removed, or cured if promptly presented, are waived

unless seasonable objection thereto is made at the taking of

the deposition.

(C) Objections to the form of written questions submitted

under RCFC 31 are waived unless served in writing upon the

party propounding them within the time allowed for serving the

succeeding cross or other questions and within 5 days after

service of the last questions authorized.

(4) As to Completion and Return of Deposition. Errors and

irregularities in the manner in which the testimony is

transcribed or the deposition is prepared, signed, certified,

sealed, indorsed, transmitted, or otherwise dealt with by the

officer under RCFC 30 and 31 are waived unless a motion to

suppress the deposition or some part thereof is made with

reasonable promptness after such defect is, or with due diligence

might have been, ascertained.

-MISC1-

RULES COMMITTEE NOTE

RCFC 32 is identical to FRCP 32, except for (i) omission of the

last sentence in subdivision (c), applicable only in jury trials,

(ii) deletion of the word "filed" in subdivision (d)(4), because

this court does not require that depositions be routinely filed,

and (iii) revisions of subparagraphs (a)(3)(B) and (E) to require

application and notice for the use of depositions of a witness who

is at a greater distance than 100 miles from the place of hearing.

-REFTEXT-

REFERENCES IN TEXT

The Federal Rules of Evidence, referred to in subd. (a)(1), (4)

are set out in this Appendix.

-End-

-CITE-

28 USC APPENDIX Rule 33 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

V. DEPOSITIONS AND DISCOVERY

-HEAD-

Rule 33. Interrogatories to Parties

-STATUTE-

(a) Availability. Without leave of court or written stipulation,

any party may serve upon any other party written interrogatories,

not exceeding 25 in number including all discrete subparts, to be

answered by the party served or, if the party served is a public or

private corporation or a partnership or association or governmental

agency, by any officer or agent, who shall furnish such information

as is available to the party. Leave to serve additional

interrogatories shall be granted to the extent consistent with the

principles of RCFC 26(b)(2). Without leave of court or written

stipulation, interrogatories may not be served before the time

specified in RCFC 26(d).

(b) Answers and Objections.

(1) Each interrogatory shall be answered separately and fully

in writing under oath, unless it is objected to, in which event

the objecting party shall state the reasons for objection and

shall answer to the extent the interrogatory is not

objectionable.

(2) The answers are to be signed by the person making them, and

the objections signed by the attorney making them.

(3) The party upon whom the interrogatories have been served

shall serve a copy of the answers, and objections if any, within

30 days after the service of the interrogatories. A shorter or

longer time may be directed by the court or, in the absence of

such an order, agreed to in writing by the parties subject to

RCFC 29.

(4) All grounds for an objection to an interrogatory shall be

stated with specificity. Any ground not stated in a timely

objection is waived unless the party's failure to object is

excused by the court for good cause shown.

(5) The party submitting the interrogatories may move for an

order under RCFC 37(a) with respect to any objection to or other

failure to answer an interrogatory.

(c) Scope; Use at Trial. Interrogatories may relate to any

matters which can be inquired into under RCFC 26(b)(1), and the

answers may be used to the extent permitted by the rules of

evidence.

An interrogatory otherwise proper is not necessarily

objectionable merely because an answer to the interrogatory

involves an opinion or contention that relates to fact or the

application of law to fact, but the court may order that such an

interrogatory need not be answered until after designated discovery

has been completed or until a pretrial conference or other later

time.

(d) Option to Produce Business Records.

Where the answer to an interrogatory may be derived or

ascertained from the business records of the party upon whom the

interrogatory has been served or from an examination, audit or

inspection of such business records, including a compilation,

abstract or summary thereof, and the burden of deriving or

ascertaining the answer is substantially the same for the party

serving the interrogatory as for the party served, it is a

sufficient answer to such interrogatory to specify the records from

which the answer may be derived or ascertained and to afford to the

party serving the interrogatory reasonable opportunity to examine,

audit or inspect such records and to make copies, compilations,

abstracts or summaries. A specification shall be in sufficient

detail to permit the interrogating party to locate and to identify,

as readily as can the party served, the records from which the

answer may be ascertained.

-MISC1-

RULES COMMITTEE NOTE

RCFC 33 is identical to FRCP 33.

-End-

-CITE-

28 USC APPENDIX Rule 34 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

V. DEPOSITIONS AND DISCOVERY

-HEAD-

Rule 34. Production of Documents and Things and Entry Upon Land for

Inspection and Other Purposes

-STATUTE-

(a) Scope. Any party may serve on any other party a request (1)

to produce and permit the party making the request, or someone

acting on the requestor's behalf, to inspect and copy, any

designated documents (including writings, drawings, graphs, charts,

photographs, phonorecords, and other data compilations from which

information can be obtained, translated, if necessary, by the

respondent through detection devices into reasonably usable form),

or to inspect and copy, test, or sample any tangible things which

constitute or contain matters within the scope of RCFC 26(b) and

which are in the possession, custody or control of the party upon

whom the request is served; or (2) to permit entry upon designated

land or other property in the possession or control of the party

upon whom the request is served for the purpose of inspection and

measuring, surveying, photographing, testing, or sampling the

property or any designated object or operation thereon, within the

scope of RCFC 26(b).

(b) Procedure. The request shall set forth, either by individual

item or by category, the items to be inspected, and describe each

with reasonable particularity. The request shall specify a

reasonable time, place, and manner of making the inspection and

performing the related acts. Without leave of court or written

stipulation, a request may not be served before the time specified

in RCFC 26(d).

The party upon whom the request is served shall serve a written

response within 30 days after the service of the request. A shorter

or longer time may be directed by the court or, in the absence of

such an order, agreed to by the parties, subject to RCFC 29. The

response shall state, with respect to each item or category, that

inspection and related activities will be permitted as requested,

unless the request is objected to, in which event the reasons for

objection shall be stated. If objection is made to part of an item

or category, the part shall be specified and inspection permitted

of the remaining parts. The party submitting the request may move

for an order under RCFC 37(a) with respect to any objection to or

other failure to respond to the request or any part thereof, or any

failure to permit inspection as requested.

A party who produces documents for inspection shall produce them

as they are kept in the usual course of business or shall organize

and label them to correspond with the categories in the request.

(c) Persons Not Parties. A person not a party to the action may

be compelled to produce documents and things or to submit to an

inspection as provided in RCFC 45.

-MISC1-

RULES COMMITTEE NOTE

RCFC 34 is identical to FRCP 34.

-End-

-CITE-

28 USC APPENDIX Rule 35 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

V. DEPOSITIONS AND DISCOVERY

-HEAD-

Rule 35. Physical and Mental Examinations of Persons

-STATUTE-

(a) Order for Examination. When the mental or physical condition

(including the blood group) of a party or of a person in the

custody or under the legal control of a party, is in controversy,

the court may order the party to submit to a physical or mental

examination by a suitably licensed or certified examiner or to

produce for examination the person in the party's custody or legal

control. The order may be made only on motion for good cause shown

and upon notice to the person to be examined and to all parties and

shall specify the time, place, manner, conditions, and scope of the

examination and the person or persons by whom it is to be made.

(b) Report of Examiner.

(1) If requested by the party against whom an order is made

under RCFC 35(a) or the person examined, the party causing the

examination to be made shall deliver to the requesting party a

copy of the detailed written report of the examiner setting out

the examiner's findings, including results of all tests made,

diagnoses and conclusions, together with like reports of all

earlier examinations of the same condition. After delivery the

party causing the examination shall be entitled upon request to

receive from the party against whom the order is made a like

report of any examination, previously or thereafter made, of the

same condition, unless, in the case of a report of examination of

a person not a party, the party shows that the party is unable to

obtain it. The court on motion may make an order against a party

requiring delivery of a report on such terms as are just, and if

an examiner fails or refuses to make a report the court may

exclude the examiner's testimony if offered at trial.

(2) By requesting and obtaining a report of the examination so

ordered or by taking the deposition of the examiner, the party

examined waives any privilege the party may have in that action

or any other involving the same controversy, regarding the

testimony of every other person who has examined or may

thereafter examine the party in respect of the same mental or

physical condition.

(3) This subdivision applies to examinations made by agreement

of the parties, unless the agreement expressly provides

otherwise. This subdivision does not preclude discovery of a

report of an examiner or the taking of a deposition of the

examiner in accordance with the provisions of any other rule.

-MISC1-

RULES COMMITTEE NOTE

RCFC 35 is identical to FRCP 35, except for the omission of the

words, "in which the action is pending," in subdivision a.

-End-

-CITE-

28 USC APPENDIX Rule 36 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

V. DEPOSITIONS AND DISCOVERY

-HEAD-

Rule 36. Requests for Admission

-STATUTE-

(a) Request for Admission. A party may serve upon any other party

a written request for the admission, for purposes of the pending

action only, of the truth of any matters within the scope of RCFC

26(b)(1) set forth in the request that relate to statements or

opinions of fact or of the application of law to fact, including

the genuineness of any documents described in the request. Copies

of documents shall be served with the request unless they have been

or are otherwise furnished or made available for inspection and

copying. Without leave of court or written stipulation, requests

for admission may not be served before the time specified in RCFC

26(d).

Each matter of which an admission is requested shall be

separately set forth. The matter is admitted unless, within 30 days

after service of the request, or within such shorter or longer time

as the court may allow or as the parties may agree to in writing,

subject to RCFC 29, the party to whom the request is directed

serves upon the party requesting the admission a written answer or

objection addressed to the matter, signed by the party or by the

party's attorney. If objection is made, the reasons therefor shall

be stated. The answer shall specifically deny the matter or set

forth in detail the reasons why the answering party cannot

truthfully admit or deny the matter. A denial shall fairly meet the

substance of the requested admission, and when good faith requires

that a party qualify an answer or deny only a part of the matter of

which an admission is requested, the party shall specify so much of

it as is true and qualify or deny the remainder. An answering party

may not give lack of information or knowledge as a reason for

failure to admit or deny unless the party states that the party has

made reasonable inquiry and that the information known or readily

obtainable by the party is insufficient to enable the party to

admit or deny. A party who considers that a matter of which an

admission has been requested presents a genuine issue for trial may

not, on that ground alone, object to the request; the party may,

subject to the provisions of RCFC 37(c), deny the matter or set

forth reasons why the party cannot admit or deny it.

The party who has requested the admissions may move to determine

the sufficiency of the answers or objections. Unless the court

determines that an objection is justified, it shall order that an

answer be served. If the court determines that an answer does not

comply with the requirements of this rule, it may order either that

the matter is admitted or that an amended answer be served. The

court may, in lieu of these orders, determine that final

disposition of the request be made at a pre-trial conference or at

a designated time prior to trial. The provisions of RCFC 37(a)(4)

apply to the award of expenses incurred in relation to the motion.

(b) Effect of Admission. Any matter admitted under this rule is

conclusively established unless the court on motion permits

withdrawal or amendment of the admission. Subject to the provision

of RCFC 16 governing amendment of a pre-trial order, the court may

permit withdrawal or amendment when the presentation of the merits

of the action will be subserved thereby and the party who obtained

the admission fails to satisfy the court that withdrawal or

amendment will prejudice that party in maintaining the action or

defense on the merits. Any admission made by a party under this

rule is for the purpose of the pending action only and is not an

admission by the party for any other purpose nor may it be used

against the party in any other proceeding.

-MISC1-

RULES COMMITTEE NOTE

RCFC 36 is identical to FRCP 36.

-End-

-CITE-

28 USC APPENDIX Rule 37 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

V. DEPOSITIONS AND DISCOVERY

-HEAD-

Rule 37. Failure to Make Disclosure or Cooperate in Discovery;

Sanctions

-STATUTE-

(a) Motion for Order Compelling Disclosure or Discovery. A party,

upon reasonable notice to other parties and all persons affected

thereby, may apply for an order compelling disclosure or discovery

as follows:

(1) Appropriate Court. [Not used.]

(2) Motion.

(A) If a party fails to make a disclosure required by RCFC

26(a), any other party may move to compel disclosure and for

appropriate sanctions. The motion must include a certification

that the movant has in good faith conferred or attempted to

confer with the party not making the disclosure in an effort to

secure the disclosure without court action.

(B) If a deponent fails to answer a question propounded or

submitted under RCFC 30 or 31, or a corporation or other entity

fails to make a designation under RCFC 30(b)(6) or 31(a), or a

party fails to answer an interrogatory submitted under RCFC 33,

or if a party, in response to a request for inspection

submitted under RCFC 34, fails to respond that inspection will

be permitted as requested or fails to permit inspection as

requested, the discovering party may move for an order

compelling an answer, or a designation, or an order compelling

inspection in accordance with the request. The motion must

include a certification that the movant has in good faith

conferred or attempted to confer with the person or party

failing to make the discovery in an effort to secure the

information or material without court action. When taking a

deposition on oral examination, the proponent of the question

may complete or adjourn the examination before applying for an

order.

(3) Evasive or Incomplete Disclosure, Answer, or Response. For

purposes of this subdivision an evasive or incomplete disclosure,

answer, or response is to be treated as a failure to disclose,

answer, or respond.

(4) Expenses and Sanctions.

(A) If the motion is granted or if the disclosure or

requested discovery is provided after the motion was filed, the

court shall, after affording an opportunity to be heard,

require the party or deponent whose conduct necessitated the

motion or the party or attorney advising such conduct or both

of them to pay to the moving party the reasonable expenses

incurred in making the motion, including attorney's fees,

unless the court finds that the motion was filed without the

movant's first making a good faith effort to obtain the

disclosure or discovery without court action, or that the

opposing party's nondisclosure, response, or objection was

substantially justified, or that other circumstances make an

award of expenses unjust.

(B) If the motion is denied, the court may enter any

protective order authorized under RCFC 26(c) and shall, after

affording an opportunity to be heard, require the moving party

or the attorney filing the motion or both of them to pay to the

party or deponent who opposed the motion the reasonable

expenses incurred in opposing the motion, including attorney's

fees, unless the court finds that the making of the motion was

substantially justified or that other circumstances make an

award of expenses unjust.

(C) If the motion is granted in part and denied in part, the

court may enter any protective order authorized under RCFC

26(c) and may, after affording an opportunity to be heard,

apportion the reasonable expenses incurred in relation to the

motion among the parties and persons in a just manner.

(b) Failure to Comply With Order.

(1) Sanctions Concerning Deponents. If a deponent fails to be

sworn or to answer a question after being directed to do so by

the court, the failure may be considered a contempt of court.

(2) Sanctions Concerning Parties. If a party or an officer,

director, or managing agent of a party or a person designated

under RCFC 30(b)(6) or 31(a) to testify on behalf of a party

fails to obey an order to provide or permit discovery, including

an order made under subdivision (a) of this rule or RCFC 35, or

if a party fails to obey an order entered under RCFC 16(b), the

court may make such orders in regard to the failure as are just,

and among others the following:

(A) An order that the matters regarding which the order was

made or any other designated facts shall be taken to be

established for the purposes of the action in accordance with

the claim of the party obtaining the order;

(B) An order refusing to allow the disobedient party to

support or oppose designated claims or defenses, or prohibiting

that party from introducing designated matters in evidence;

(C) An order striking out pleadings or parts thereof, or

staying further proceedings until the order is obeyed, or

dismissing the action or proceeding or any part thereof, or

rendering a judgment by default against the disobedient party;

(D) In lieu of any of the foregoing orders or in addition

thereto, an order treating as a contempt of court the failure

to obey any orders except an order to submit to a physical or

mental examination;

(E) Where a party has failed to comply with an order under

RCFC 35(a) requiring the party to produce another for

examination, such orders as are listed in paragraphs (A), (B)

and (C) of this subdivision, unless the party failing to comply

shows that that party is unable to produce such person for

examination.

In lieu of any of the foregoing orders or in addition thereto,

the court shall require the party failing to obey the order or

the attorney advising that party or both to pay the reasonable

expenses, including attorney's fees, caused by the failure,

unless the court finds that the failure was substantially

justified or that other circumstances make an award of expenses

unjust.

(c) Failure to Disclose; False or Misleading Disclosure; Refusal

to Admit.

(1) A party that without substantial justification fails to

disclose information required by RCFC 26(a) or 26(e)(1), or to

amend a prior response to discovery as required by RCFC 26(e)(2),

is not, unless such failure is harmless, permitted to use as

evidence at a trial, at a hearing, or on a motion any witness or

information not so disclosed. In addition to or in lieu of this

sanction, the court, on motion and after affording an opportunity

to be heard, may impose other appropriate sanctions. In addition

to requiring payment of reasonable expenses, including attorney's

fees, caused by the failure, these sanctions may include any of

the actions authorized under RCFC 37(b)(2)(A), (B), and (C).

(2) If a party fails to admit the genuineness of any document

or the truth of any matter as requested under RCFC 36, and if the

party requesting the admissions thereafter proves the genuineness

of the document or the truth of the matter, the requesting party

may apply to the court for an order requiring the other party to

pay the reasonable expenses incurred in making that proof,

including reasonable attorney's fees. The court shall make the

order unless it finds that (A) the request was held objectionable

pursuant to RCFC 36(a), or (B) the admission sought was of no

substantial importance, or (C) the party failing to admit had

reasonable ground to believe that the party might prevail on the

matter, or (D) there was other good reason for the failure to

admit.

(d) Failure of Party To Attend at Own Deposition or Serve Answers

to Interrogatories or Respond to Request for Inspection. If a party

or an officer, director, or managing agent of a party or a person

designated under RCFC 30(b)(6) or 31(a) to testify on behalf of a

party fails (1) to appear before the officer who is to take the

deposition, after being served with a proper notice, or (2) to

serve answers or objections to interrogatories submitted under RCFC

33, after proper service of the interrogatories, or (3) to serve a

written response to a request for inspection submitted under RCFC

34, after proper service of the request, the court in which the

action is pending on motion may make such orders in regard to the

failure as are just, and among others it may take any action

authorized under subparagraphs (A), (B) and (C) of subdivision

(b)(2) of this rule. Any motion specifying a failure under clause

(2) or (3) of this subdivision shall include a certification that

the movant has in good faith conferred or attempted to confer with

the party failing to answer or respond in an effort to obtain such

answer or response without court action. In lieu of any order or in

addition thereto, the court shall require the party failing to act

or the attorney advising that party or both to pay the reasonable

expenses, including attorney's fees, caused by the failure unless

the court finds that the failure was substantially justified or

that other circumstances make an award of expenses unjust.

The failure to act described in this subdivision may not be

excused on the ground that the discovery sought is objectionable

unless the party failing to act has a pending motion for a

protective order as provided by RCFC 26(c).

(e) [Abrogated in federal rule.]

(f) [Repealed.]

(g) Failure to Participate in the Framing of a Discovery Plan. If

a party or a party's attorney fails to participate in good faith in

the development and submission of a proposed discovery plan as

required by Appendix A ¶ 3, the court may, after opportunity

for hearing, require such party or attorney to pay to any other

party the reasonable expenses, including attorney's fees, caused by

the failure.

-MISC1-

RULES COMMITTEE NOTE

RCFC 37 parallels the structure and content of FRCP 37. The

limited number of differences reflect those necessary for

compatibility with the jurisdiction and other rules of the court.

-End-

-CITE-

28 USC APPENDIX VI. TRIALS 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VI. TRIALS

-HEAD-

VI. TRIALS

-End-

-CITE-

28 USC APPENDIX Rule 38 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VI. TRIALS

-HEAD-

Rule 38. Jury Trial of Right [Not used.]

-STATUTE-

-End-

-CITE-

28 USC APPENDIX Rule 39 01/06/03

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TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VI. TRIALS

-HEAD-

Rule 39. Trial by Jury or by the Court [Not used.]

-STATUTE-

-End-

-CITE-

28 USC APPENDIX Rule 40 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VI. TRIALS

-HEAD-

Rule 40. Setting Cases for Trial

-STATUTE-

Setting a case for trial is the responsibility of the judge to

whom the case is assigned, and may be made (1) without request of

the parties or (2) upon request of a party and notice to the other

parties or (3) in such other manner as the court deems expedient.

All trials shall be scheduled by the judge by order filed with the

clerk. Precedence shall be given to actions entitled thereto by any

statute of the United States.

-MISC1-

RULES COMMITTEE NOTE

The text of RCFC 40 parallels, but is not identical to, FRCP 40.

Like its federal rules counterpart, however, the purpose of the

rule is to identify the responsibility of the judge in scheduling a

matter for trial. The changes made to the text of the rule are

minor and intended to clarify the rule's essential purpose, i.e.,

that it is the judge's responsibility to determine the date and

place of trial in accordance with 28 U.S.C. Secs. 173, 798(a), and

2503(c).

-End-

-CITE-

28 USC APPENDIX Rule 40.1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VI. TRIALS

-HEAD-

Rule 40.1. Assignment and Transfer of Cases

-STATUTE-

(a) After the complaint has been served on the United States, or

after recusal or disqualification of a judge to whom a case has

been assigned, the case shall be assigned (or reassigned) forthwith

to a judge at random.

(b) To promote docket efficiency, to conform to the requirements

of any case management plan, or for the efficient administration of

justice, a case may be transferred by order of the assigned judge

to another judge upon the agreement of both judges. A motion to

transfer may be initiated by a party. See RCFC 40.2.

(c) The chief judge may reassign any case if the chief judge

deems such action necessary for the efficient administration of

justice.

-MISC1-

RULES COMMITTEE NOTE

RCFC 40.1 has no FRCP counterpart. The substance of the rule

formerly appeared in these rules as part of paragraph (1) of RCFC

77(f). The renumbering of RCFC 77(f) reflects its more logical

placement in the structure of the court's rules.

The new language introduced by the rule - subdivision (b) -

represents a codification of internal procedures.

-End-

-CITE-

28 USC APPENDIX Rule 40.2 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VI. TRIALS

-HEAD-

Rule 40.2. Related Cases

-STATUTE-

(a) Directly-Related Cases.

(1) At the time a complaint is filed, the filing attorney (or

pro se plaintiff) shall file and serve on all parties who have

appeared a Notice of Directly-Related Case(s). Cases are deemed

directly related when an earlier-filed case and the action being

filed:

(A) involve the same parties and are based on the same or

similar claims; or

(B) involve the same contract, property or patent.

(2) Where a Notice of Directly-Related Cases is filed along

with the new complaint, the clerk shall assign the case to the

judge to whom the earliest-filed directly-related case is

assigned. If the judge to whom the related case is assigned

determines that the case in question is not in fact directly

related, the judge will return the case to the clerk for random

assignment.

(3) Where the existence of directly-related cases becomes

apparent only after initial assignment, the Notice of

Directly-Related Cases shall be filed in all related cases,

captioned in the name of the earliest-filed case. Solely for the

purpose of filing this notice, counsel in the later-filed case

may appear in the earlier-filed case. The Notice may be

accompanied by a motion to transfer and a suggestion for

consolidation under RCFC 42.1. The judge in the earliest-filed

case, after consultation with the judge in the later-filed case,

will grant or deny the motion to transfer.

(4) Content of the Notice of Directly-Related Case(s). The

notice of related case shall contain: the title and case number

of the related case; a brief statement of the relationship of the

actions according to the criteria set forth in subdivision (a);

and a statement addressing whether assignment to a single judge

or other action, including consolidation, is or is not likely to

conserve judicial resources and promote an efficient

determination of the actions.

(b) Indirectly-Related Cases.

(1) Whenever it appears to a party that there are two or more

cases before the court that present common issues of fact and

that transfer, consolidation, or the adoption of a coordinated

discovery schedule would significantly promote the efficient

administration of justice, the party may file a Notice of

Indirectly-Related Cases. The notice shall be captioned in the

name of the earliest-filed case which is related. Solely for

purposes of filing the notice, counsel may appear in an

earlier-filed case.

(2) The notice shall list the name and docket number of all

indirectly-related cases and shall detail the reasons supporting

the proposed action. Counsel shall serve all parties in the

related cases. The clerk shall file the notice in those cases and

furnish a courtesy copy of the notice to the chief judge. Solely

for the purpose of responding to the notice, counsel in the

related cases may appear in the earliest-filed case to file a

response to the notice. The response shall be filed within 21

days of service and captioned in the name of the earliest-filed

case. Responses shall be served on counsel in all cases. The

clerk shall file copies of the responses in each of the cases and

shall furnish courtesy copies to the chief judge.

(3) The presiding judge of the earliest-filed case shall call a

meeting of all of the presiding judges to determine what, if any,

action is appropriate. The parties to each action shall be

notified of any resulting decision.

-MISC1-

RULES COMMITTEE NOTE

RCFC 40.2 has no FRCP counterpart. The subject of the rule -

Related Cases - previously appeared in these rules as RCFC 77(f)

(as revised by General Order No. 36). The renumbering of the rule

reflects its more logical placement in the structure of the court's

rules.

Unlike the predecessor rule, RCFC 40.2 recognizes two types of

related cases: directly-related cases and indirectly-related cases.

Directly-related cases retain the definition that applied under

former RCFC 77(f). Thus, cases that "involve the same parties and

are based on the same or similar claims" or "involve the same

contract, property, or patent" are deemed to be directly related.

Cases that are directly related share an identity of parties and/or

subject matter that, for the sake of consistency in outcome,

warrant their assignment to a single judge. Indirectly-related

cases, by contrast, share only "common issues of fact." In the

interests of efficiency and the conservation of resources, such

cases may warrant consolidated management during their pretrial

stage.

In addition to recognizing two forms of related cases, RCFC 40.2

also prescribes the notice procedures that are to be followed for

the identification of such cases to the court and interested

counsel.

-End-

-CITE-

28 USC APPENDIX Rule 40.3 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VI. TRIALS

-HEAD-

Rule 40.3. Complaints Against Judges

-STATUTE-

(a) The Judicial Conduct and Disability Act of 1980, 28 U.S.C.

Sec. 372(c)(18), directs the United States Court of Federal Claims

to prescribe rules for the filing of complaints against judges of

the court who have engaged in conduct prejudicial to the effective

and expeditious administration of the business of the court or who

are unable to discharge all the duties of the office by reason of

mental or physical disability.

(b) A copy of these rules, titled "Rules of the United States

Court of Federal Claims Governing Complaints of Judicial Misconduct

and Disability," is available upon request from the Office of the

Clerk of the United States Court of Federal Claims, 717 Madison

Place, NW, Washington, DC 20005. Pursuant to these rules, written

complaints may be filed with the clerk.

-MISC1-

RULES COMMITTEE NOTE

RCFC 40.3 has no FRCP counterpart. However, the notice provided

by the rule is in accordance with the recommendations of the

Judicial Conference of the United States, urging that such notice

be made part of the court's rules.

The rule replaces former Appendix B ("Procedures for Processing

Complaints of Judicial Misconduct") and its supplementing order,

General Order No. 34 dated June 3, 1993. Inclusion of the rule as a

subpart of RCFC 40 is intended to further a more coherent

organizational structure for the court's rules.

-REFTEXT-

REFERENCES IN TEXT

The Judicial Conduct and Disability Act of 1980, referred to in

subd. (a), probably means the Judicial Councils Reform and Judicial

Conduct and Disability Act of 1980, Pub. L. 96-458, Oct. 15, 1980,

94 Stat. 2035. For complete classification of this Act to the Code,

see Short Title of 1980 Amendments note set out under section 1 of

this title and Tables.

-End-

-CITE-

28 USC APPENDIX Rule 41 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VI. TRIALS

-HEAD-

Rule 41. Dismissal of Actions

-STATUTE-

(a) Voluntary Dismissal: Effect Thereof.

(1) By Plaintiff; by Stipulation. Subject to the provisions of

RCFC 23, and of any statute of the United States, an action may

be dismissed by the plaintiff without order of court (i) by

filing a notice of dismissal at any time before service of an

answer or of a motion for summary judgment, whichever first

occurs, or (ii) by filing a stipulation of dismissal signed by

all parties who have appeared in the action. Unless otherwise

stated in the notice of dismissal or stipulation, the dismissal

is without prejudice, except that a notice of dismissal operates

as an adjudication upon the merits when filed by a plaintiff who

has once dismissed in any court of the United States an action

based on or including the same claim.

(2) By Order of Court. Except as provided in paragraph (1) of

this subdivision of this rule, an action shall not be dismissed

at the plaintiff's instance save upon order of the court and upon

such terms and conditions as the court deems proper. If a

counterclaim has been pleaded by the United States prior to the

service upon it of the plaintiff's motion to dismiss, the action

shall not be dismissed against the defendant's objection unless

the counterclaim can remain pending for independent adjudication

by the court. Unless otherwise specified in the order, a

dismissal under this paragraph is without prejudice.

(b) Involuntary Dismissal: Effect Thereof. For failure of the

plaintiff to prosecute or to comply with these rules or any order

of court, the court may dismiss on its own motion or defendant may

move for dismissal of an action or any claim. Unless the court in

its order for dismissal otherwise specifies, a dismissal under this

subdivision of this rule and any dismissal not provided for in this

rule, other than a dismissal for lack of jurisdiction, or for

failure to join a party under RCFC 19, operates as an adjudication

upon the merits.

(c) Dismissal of Counterclaim or Third-Party Claim. The

provisions of this rule apply to the dismissal of any counterclaim

or third-party claim. A voluntary dismissal by the claimant alone

pursuant to paragraph (1) of subdivision (a) of this rule shall be

made before a responsive pleading is served or, if there is none,

before the introduction of evidence at the trial or hearing.

(d) Costs of Previously-Dismissed Action. If a plaintiff who has

once dismissed an action in any court commences an action based

upon or including the same claim against the defendant, the court

may make such order for the payment of costs of the action

previously dismissed as it may deem proper and may stay the

proceedings in the action until the plaintiff has complied with the

order.

-MISC1-

RULES COMMITTEE NOTE

Minor changes were made to more closely conform the rule to FRCP

41. Substantively, however, the rule remains unchanged.

-End-

-CITE-

28 USC APPENDIX Rule 42 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VI. TRIALS

-HEAD-

Rule 42. Consolidation; Separate Trials

-STATUTE-

(a) Consolidation. When actions involving a common question of

law or fact are pending before the court, it may order a joint

hearing or trial of any or all the matters in issue in the actions;

it may order all the actions consolidated; and it may make such

orders concerning proceedings therein as may tend to avoid

unnecessary costs or delay.

(b) Separate Trials. The court, in furtherance of convenience or

to avoid prejudice, or when separate trials will be conducive to

expedition and economy, may order a separate trial of any claim,

counterclaim, or third-party claim, or of any separate issue or of

any number of claims, counterclaims, third-party claims, or issues.

(c) Separate Determination of Liability. Upon stipulation of the

parties, approved by the court, or upon order of the court, a trial

may be limited to the issues of law and fact relating to the right

of a party to recover, reserving the determination of the amount of

recovery, if any, for further proceedings. In any case, whether or

not a stipulation or order has been made under subdivision (c) of

this rule, the court, upon determining that a party is entitled to

recover, may reserve determination of the amount of the recovery

for further proceedings. Any motion for reconsideration shall be

filed not later than 10 days after a separate determination of

liability.

-MISC1-

RULES COMMITTEE NOTE

RCFC 42 remains unchanged. Thus, as before, the rule parallels in

part FRCP 42 and, in addition, includes subdivision (c) ("Separate

Determination of Liability") permitting the liability phase of a

lawsuit to be separated from, and decided independently of, the

quantum phase.

-End-

-CITE-

28 USC APPENDIX Rule 42.1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VI. TRIALS

-HEAD-

Rule 42.1. Motions to Consolidate

-STATUTE-

Motions to consolidate shall be directed to the judge to whom the

relevant cases are assigned. In the event the relevant cases are

assigned to different judges, a motion to transfer may be made

pursuant to RCFC 40.1, with a suggestion of the appropriateness of

consolidation.

-MISC1-

RULES COMMITTEE NOTE

RCFC 42.1 has no FRCP counterpart. It identifies the procedure

applicable to motions for the consolidation of actions pending

before different judges.

-End-

-CITE-

28 USC APPENDIX Rule 43 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VI. TRIALS

-HEAD-

Rule 43. Taking of Testimony

-STATUTE-

(a) Form. In every trial the testimony of witnesses shall be

taken in open court, unless a federal law, these rules, the Federal

Rules of Evidence, or other rules adopted by the Supreme Court

provide otherwise. The court may, for good cause shown in

compelling circumstances and upon appropriate safeguards, permit

presentation of testimony in open court by contemporaneous

transmission from a different location.

(b), (c) [Abrogated in federal rule.]

(d) Affirmation in Lieu of Oath. Whenever under these rules an

oath is required to be taken, a solemn affirmation may be accepted

in lieu thereof.

(e) Evidence on Motions. When a motion is based on facts not

appearing of record the court may hear the matter on affidavits

presented by the respective parties, but the court may direct that

the matter be heard wholly or partly on oral testimony or

deposition.

(f) Interpreters. The court may appoint an interpreter of its own

selection and may fix the interpreter's reasonable compensation.

The compensation shall be paid out of funds provided by law or by

one or more of the parties as the court may direct and may be taxed

ultimately as costs, in the discretion of the court.

-MISC1-

RULES COMMITTEE NOTE

The rule is identical to FRCP 43.

-REFTEXT-

REFERENCES IN TEXT

The Federal Rules of Evidence, referred to in subd. (a), are set

out in this Appendix.

-End-

-CITE-

28 USC APPENDIX Rule 44 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VI. TRIALS

-HEAD-

Rule 44. Proof of Official Record

-STATUTE-

(a) Authentication.

(1) Domestic. An official record kept within the United States,

or any state, district, or commonwealth, or within a territory

subject to the administrative or judicial jurisdiction of the

United States, or an entry therein, when admissible for any

purpose, may be evidenced by an official publication thereof or

by a copy attested by the officer having the legal custody of the

record, or by the officer's deputy, and accompanied by a

certificate that such officer has the custody. The certificate

may be made by a judge of a court of record of the district or

political subdivision in which the record is kept, authenticated

by the seal of the court, or may be made by any public officer

having a seal of office and having official duties in the

district or political subdivision in which the record is kept,

authenticated by the seal of the officer's office.

(2) Foreign. A foreign official record, or an entry therein,

when admissible for any purpose, may be evidenced by an official

publication thereof; or a copy thereof, attested by a person

authorized to make the attestation, and accompanied by a final

certification as to the genuineness of the signature and official

position (i) of the attesting person, or (ii) of any foreign

official whose certificate of genuineness of signature and

official position relates to the attestation or is in a chain of

certificates of genuineness of signature and official position

relating to the attestation. A final certification may be made by

a secretary of embassy or legation, consul general, vice consul,

or consular agent of the United States, or a diplomatic or

consular official of the foreign country assigned or accredited

to the United States. If reasonable opportunity has been given to

all parties to investigate the authenticity and accuracy of the

documents, the court may, for good cause shown, (i) admit an

attested copy without final certification or (ii) permit the

foreign official record to be evidenced by an attested summary

with or without a final certification. The final certification is

unnecessary if the record and the attestation are certified as

provided in a treaty or convention to which the United States and

the foreign country in which the official record is located are

parties.

(b) Lack of Record. A written statement that after diligent

search no record or entry of a specified tenor is found to exist in

the records designated by the statement, authenticated as provided

in subdivision (a)(1) of this rule in the case of a domestic

record, or complying with the requirements of subdivision (a)(2) of

this rule for a summary in the case of a foreign record, is

admissible as evidence that the records contain no such record or

entry.

(c) Other Proof. This rule does not prevent the proof of official

records or of entry or lack of entry therein by any other method

authorized by law.

-MISC1-

RULES COMMITTEE NOTE

RCFC 44 is identical to FRCP 44.

-End-

-CITE-

28 USC APPENDIX Rule 44.1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VI. TRIALS

-HEAD-

Rule 44.1. Determination of Foreign Law

-STATUTE-

A party who intends to raise an issue concerning the law of a

foreign country shall give notice by pleadings or other reasonable

written notice. The court, in determining foreign law, may consider

any relevant material or source, including testimony, whether or

not submitted by a party or admissible under the Federal Rules of

Evidence. The court's determination shall be treated as a ruling on

a question of law.

-MISC1-

RULES COMMITTEE NOTE

The rule is identical to FRCP 44.1.

-REFTEXT-

REFERENCES IN TEXT

The Federal Rules of Evidence, referred to in text, are set out

in this Appendix.

-End-

-CITE-

28 USC APPENDIX Rule 45 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VI. TRIALS

-HEAD-

Rule 45. Subpoena

-STATUTE-

(a) Form (See Appendix of Forms, Forms 6 and 7A); Issuance.

(1) Every subpoena shall

(A) state the name of the court; and

(B) state the title of the action and its docket number; and

(C) command each person to whom it is directed to attend and

give testimony or to produce and permit inspection and copying

of designated books, documents or tangible things in the

possession, custody or control of that person, or to permit

inspection of premises, at a time and place therein specified;

and

(D) set forth the text of subdivisions (c) and (d) of this

rule.

A command to produce evidence or to permit inspection may be joined

with a command to appear at trial or hearing or at deposition, or

may be issued separately.

(2) [Not used.]

(3) The clerk shall issue a subpoena, signed but otherwise in

blank, to a party requesting it, who shall complete it before

service. An attorney as officer of the court, authorized to sign

filings under RCFC 83.1, may also issue and sign a subpoena on

behalf of the Court of Federal Claims.

(b) Service.

(1) A subpoena may be served by any person who is not a party

and is not less than 18 years of age. Service of a subpoena upon

a person named therein shall be made by delivering a copy thereof

to such person and, if the person's attendance is commanded, by

tendering to that person the fees for one day's attendance and

the mileage allowed by law. See 28 U.S.C. Sec. 1821. When the

subpoena is issued on behalf of the United States or an officer

or agency thereof, fees and mileage need not be tendered. Prior

notice of any commanded production of documents and things or

inspection of premises before trial shall be served on each party

in the manner prescribed by RCFC 5(b).

(2) Subject to the provisions of clause (ii) of subparagraph

(c)(3)(A) of this rule, a subpoena may be served at any place

that is within 100 miles of the place of the deposition, hearing,

trial, production, or inspection specified in the subpoena; but

the court upon proper application and good cause shown may

authorize the service of a subpoena at any other place. A

subpoena directed to a witness in a foreign country who is a

national or resident of the United States shall issue under the

circumstances and in the manner and be served as provided in

Title 28 U.S.C. Sec. 1783.

(3) Proof of service when necessary shall be made by filing

with the clerk of the court a statement of the date and manner of

service and of the names of the persons served, certified by the

person who made the service.

(c) Protection of Persons Subject to Subpoenas.

(1) A party or an attorney responsible for the issuance and

service of a subpoena shall take reasonable steps to avoid

imposing undue burden or expense on a person subject to that

subpoena. The court shall enforce this duty and impose upon the

party or attorney in breach of this duty an appropriate sanction,

which may include, but is not limited to, lost earnings and a

reasonable attorney's fee.

(2)(A) A person commanded to produce and permit inspection and

copying of designated books, papers, documents or tangible things

or inspection of premises need not appear in person at the place

of production or inspection unless commanded to appear for

deposition, hearing or trial.

(B) Subject to paragraph (d)(2) of this rule, a person

commanded to produce and permit inspection and copying may,

within 14 days after service of the subpoena or before the time

specified for compliance if such time is less than 14 days after

service, serve upon the party or attorney designated in the

subpoena written objection to inspection or copying of any or all

of the designated materials or of the premises. If objection is

made, the party serving the subpoena shall not be entitled to

inspect and copy the materials or inspect the premises except

pursuant to an order of the court. If objection has been made,

the party serving the subpoena may, upon notice to the person

commanded to produce, move at any time for an order to compel the

production. Such an order to compel production shall protect any

person who is not a party or an officer of a party from

significant expense resulting from the inspection and copying

commanded.

(3)(A) On timely motion, the court shall quash or modify the

subpoena if it

(i) fails to allow reasonable time for compliance;

(ii) requires a person who is not a party or an officer of a

party to travel to a place more than 100 miles from the place

where that person resides, is employed or regularly transacts

business in person, except that, subject to the provisions of

clause (c)(3)(B)(iii) of this rule, such a person may in order

to attend trial be commanded to travel from any such place, or

(iii) requires disclosure of privileged or other protected

matter and no exception or waiver applies, or

(iv) subjects a person to undue burden.

(B) If a subpoena

(i) requires disclosure of a trade secret or other

confidential research, development, or commercial information,

or

(ii) requires disclosure of an unretained expert's opinion or

information not describing specific events or occurrences in

dispute and resulting from the expert's study made not at the

request of any party, or

(iii) requires a person who is not a party or an officer of a

party to incur substantial expense to travel more than 100

miles to attend trial, the court may, to protect a person

subject to or affected by the subpoena, quash or modify the

subpoena or, if the party in whose behalf the subpoena is

issued shows a substantial need for the testimony or material

that cannot be otherwise met without undue hardship and assures

that the person to whom the subpoena is addressed will be

reasonably compensated, the court may order appearance or

production only upon specified conditions.

(d) Duties in Responding to Subpoena.

(1) A person responding to a subpoena to produce documents

shall produce them as they are kept in the usual course of

business or shall organize and label them to correspond with the

categories in the demand.

(2) When information subject to a subpoena is withheld on a

claim that it is privileged or subject to protection as trial

preparation materials, the claim shall be made expressly and

shall be supported by a description of the nature of the

documents, communications, or things not produced that is

sufficient to enable the demanding party to contest the claim.

(e) Contempt. Failure by any person without adequate excuse to

obey a subpoena served upon that person may be deemed a contempt of

the court from which the subpoena issued. An adequate cause for

failure to obey exists when a subpoena purports to require a

nonparty to attend or produce at a place not within the limits

provided by clause (ii) of subparagraph (c)(3)(A).

-MISC1-

RULES COMMITTEE NOTE

RCFC 45 conforms to FRCP 45 to the extent feasible given the

court's nationwide jurisdiction.

-End-

-CITE-

28 USC APPENDIX Rule 46 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VI. TRIALS

-HEAD-

Rule 46. Exceptions Unnecessary

-STATUTE-

Formal exceptions to rulings or orders of the court are

unnecessary; but for all purposes for which an exception has

heretofore been necessary it is sufficient that a party, at the

time the ruling or order of the court is made or sought, makes

known to the court the action which the party desires the court to

take or the party's objection to the action of the court and the

grounds therefor; and, if a party has no opportunity to object to a

ruling or order at the time it is made, the absence of an objection

does not thereafter prejudice the party.

-MISC1-

RULES COMMITTEE NOTE

The rule is identical to the corresponding FRCP.

-End-

-CITE-

28 USC APPENDIX Rule 47 01/06/03

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TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VI. TRIALS

-HEAD-

Rule 47. Selection of Jurors [Not used.]

-STATUTE-

-End-

-CITE-

28 USC APPENDIX Rule 48 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VI. TRIALS

-HEAD-

Rule 48. Number of Jurors - Participation in Verdict [Not used.]

-STATUTE-

-End-

-CITE-

28 USC APPENDIX Rule 49 01/06/03

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TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VI. TRIALS

-HEAD-

Rule 49. Special Verdicts and Interrogatories [Not used.]

-STATUTE-

-End-

-CITE-

28 USC APPENDIX Rule 50 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VI. TRIALS

-HEAD-

Rule 50. Judgment as a Matter of Law in Jury Trials; Alternative

Motion for New Trial; Conditional Rulings [Not used.]

-STATUTE-

-End-

-CITE-

28 USC APPENDIX Rule 51 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VI. TRIALS

-HEAD-

Rule 51. Instructions to Jury: Objection [Not used.]

-STATUTE-

-End-

-CITE-

28 USC APPENDIX Rule 52 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VI. TRIALS

-HEAD-

Rule 52. Findings by the Court; Judgment on Partial Findings

-STATUTE-

(a) Effect. In all actions tried upon the facts, the court shall

find the facts specially and state separately its conclusions of

law thereon, and judgment shall be entered pursuant to RCFC 58; and

in granting or refusing interlocutory injunctions the court shall

similarly set forth the findings of fact and conclusions of law

which constitute the grounds of its action. Requests for findings

are not necessary for purposes of review. Findings of fact, whether

based on oral or documentary evidence, shall not be set aside

unless clearly erroneous, and due regard shall be given to the

opportunity of the trial court to judge of the (!1) credibility of

the witnesses. It will be sufficient if the findings of fact and

conclusions of law are stated orally and recorded in open court

following the close of the evidence or appear in an opinion or

memorandum of decision filed by the court. Findings of fact and

conclusions of law are unnecessary on decisions of motions under

RCFC 12 or 56 or any other motion except as provided in subdivision

(c) of this rule.

(b) Amendment. On a party's motion filed no later than 10 days

after entry of judgment, the court may amend its findings - or make

additional findings - and may amend the judgment accordingly. The

motion may accompany a motion for a new trial under RCFC 59. The

sufficiency of the evidence to support the findings may be

questioned whether or not the party raising the question objected

to the findings, moved to amend them, or moved for partial

findings.

(c) Judgment on Partial Findings. If during a trial a party has

been fully heard on an issue and the court finds against the party

on that issue, the court may enter judgment as a matter of law

against that party with respect to a claim or defense that cannot

under the controlling law be maintained or defeated without a

favorable finding on that issue, or the court may decline to render

any judgment until the close of all the evidence. Such a judgment

shall be supported by findings of fact and conclusions of law as

required by subdivision (a) of this rule.

-MISC1-

RULES COMMITTEE NOTE

The principal change in RCFC 52 relates to the enlargement of

subdivision (c) to include, among issues subject to judgment on

partial findings, the adjudication of issues critical to the legal

sufficiency of a "defense." The amendment makes clear that

judgments as a matter of law may be entered against both plaintiffs

and defendants and with respect to issues or defenses that may not

be wholly dispositive of a claim or defense.

-FOOTNOTE-

(!1) So in original.

-End-

-CITE-

28 USC APPENDIX Rule 53 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VI. TRIALS

-HEAD-

Rule 53. Masters

-STATUTE-

(a) Appointment and Compensation. The chief judge, at the request

of the presiding judge, may appoint a special master. As used in

these rules, the word "master" includes a referee, an auditor, an

examiner, and an assessor. The compensation to be allowed to a

master shall be fixed by the court, and shall be charged upon such

of the parties or paid out of any fund or subject matter of the

action, which is in the custody and control of the court as the

court may direct. The master shall not retain the master's report

as security for the master's compensation; but when the party

ordered to pay the compensation allowed by the court does not pay

it after notice and within the time prescribed by the court, the

master is entitled to a writ of execution against the delinquent

party.

(b) Reference. A reference to a master shall be the exception and

not the rule. Save in matters of account and of difficult

computation of damages, a reference shall be made only upon a

showing that some exceptional condition requires it.

(c) Powers. The order of reference to the master may specify or

limit the master's powers and may direct the master to report only

upon particular issues or to do or perform particular acts or to

receive and report evidence only and may fix the time and place for

beginning and closing the hearings and for the filing of the

master's report. Subject to the specifications and limitations

stated in the order, the master has and shall exercise the power to

regulate all proceedings in every hearing before the master and to

do all acts and take all measures necessary or proper for the

efficient performance of the master's duties under the order. The

master may require the production before the master of evidence

upon all matters embraced in the reference, including the

production of all books, papers, vouchers, documents, and writings

applicable thereto. The master may rule upon the admissibility of

evidence unless otherwise directed by the order of reference and

has the authority to put witnesses on oath and may examine them and

may call the parties to the action and examine them upon oath. When

a party so requests, the master shall make a record of the evidence

offered and excluded in the same manner and subject to the same

limitations as provided in the Federal Rules of Evidence for a

court sitting without a jury.

(d) Proceedings.

(1) Meetings. When a reference is made, the clerk shall

forthwith furnish the master with a copy of the order of

reference. Upon receipt thereof unless the order of reference

otherwise provides, the master shall forthwith set a time and

place for the first meeting of the parties or their attorneys to

be held within 20 days after the date of the order of reference

and shall notify the parties or their attorneys. It is the duty

of the master to proceed with all reasonable diligence. Either

party, on notice to the parties and master, may apply to the

court for an order requiring the master to speed the proceedings

and to make the report. If a party fails to appear at the time

and place appointed, the master may proceed ex parte or, in the

master's discretion, adjourn the proceedings to a future day,

giving notice to the absent party of the adjournment.

(2) Witnesses. The parties may procure the attendance of

witnesses before the master by the issuance and service of

subpoenas as provided in RCFC 45. If without adequate excuse a

witness fails to appear or give evidence, the witness may be

punished as for a contempt and be subjected to the consequences,

penalties, and remedies provided in RCFC 37 and 45.

(3) Statement of Accounts. When matters of accounting are in

issue before the master, the master may prescribe the form in

which the accounts shall be submitted and in any proper case may

require or receive in evidence a statement by a certified public

accountant who is called as a witness. Upon objection of a party

to any of the items thus submitted or upon a showing that the

form of statement is insufficient, the master may require a

different form of statement to be furnished, or the accounts or

specific items thereof to be proved by oral examination of the

accounting parties or upon written interrogatories or in such

other manner as the master directs.

(e) Report.

(1) Contents and Filing. The master shall prepare a report upon

the matters submitted to the master by the order of reference

and, if required to make findings of fact and conclusions of law,

the master shall set them forth in the report. The master shall

file the report with the clerk of the court and serve on all

parties notice of the filing. Unless otherwise directed by the

order of reference, the master shall file with the report a

transcript of the proceedings and of the evidence and the

original exhibits. Unless otherwise directed by the order of

reference, the master shall serve a copy of the report on each

party.

(2) Acceptance of Report. The court shall accept the master's

findings of fact unless clearly erroneous. Within 10 days after

being served with notice of the filing of the report any party

may serve written objections thereto upon the other parties.

Application to the court for action upon the report and upon

objections thereto shall be by motion. The court after hearing

may adopt the report or may modify it or may reject it in whole

or in part or may receive further evidence or may recommit it

with instructions.

(3) In Jury Actions. [Not used.]

(4) Stipulation as to Findings. The effect of a master's report

is the same whether or not the parties have consented to the

reference; but, when the parties stipulate that a master's

findings of fact shall be final, only questions of law arising

upon the report shall thereafter be considered.

(5) Draft Report. Before filing the master's report, a master

may submit a draft thereof to counsel for all parties for the

purpose of receiving their suggestions.

(f) Application to Magistrate Judge. [Not used.]

-MISC1-

RULES COMMITTEE NOTE

Subdivision (a) recognizes that the chief judge has the power to

appoint special masters pursuant to 28 U.S.C. Sec. 798. Paragraph

(2) of subdivision (d) recognizes the court's power to utilize

contempt procedures in appropriate circumstances.

-REFTEXT-

REFERENCES IN TEXT

The Federal Rules of Evidence, referred to in subd. (c), are set

out in this Appendix.

-End-

-CITE-

28 USC APPENDIX VII. JUDGMENT 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VII. JUDGMENT

-HEAD-

VII. JUDGMENT

-End-

-CITE-

28 USC APPENDIX Rule 54 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VII. JUDGMENT

-HEAD-

Rule 54. Judgments; Costs

-STATUTE-

(a) Definition; Form. "Judgment" as used in these rules includes

a decree and any order from which an appeal lies. A judgment shall

not contain a recital of pleadings, the report of a master, or the

record of prior proceedings.

(b) Judgment Upon Multiple Claims or Involving Multiple Parties.

When more than one claim for relief is presented in an action,

whether as a claim, counterclaim, or third-party claim, or when

multiple parties are involved, the court may direct the entry of a

final judgment as to one or more but fewer than all of the claims

or parties only upon an express determination that there is no just

reason for delay and upon an express direction for the entry of

judgment. In the absence of such determination and direction, any

order or other form of decision, however designated, which

adjudicates fewer than all the claims or the rights and liabilities

of fewer than all the parties shall not terminate the action as to

any of the claims or parties, and the order or other form of

decision is subject to revision at any time before the entry of

judgment adjudicating all the claims and the rights and liabilities

of all the parties.

(c) Demand for Judgment. A judgment by default shall not be

different in kind from or exceed in amount that prayed for in the

demand for judgment. Except as to a party against whom a judgment

is entered by default, every final judgment shall grant the relief

to which the party in whose favor it is rendered is entitled, even

if the party has not demanded such relief in the party's pleadings.

(d) Costs; Attorneys' Fees.

(1) Costs Other than Attorneys' Fees. Costs other than

attorneys' fees may be awarded to the prevailing party to the

extent permitted by law. See 28 U.S.C. Sec. 2412(a).

(A) Filing Bill of Costs. A prevailing party may request the

clerk to tax allowable costs by filing a Bill of Costs as set

forth in the Appendix of Forms (Form 4) within 30 days after

the date of final judgment, as defined in 28 U.S.C. Sec.

2412(d)(2)(G). In any case where any costs other than the fee

for filing the action are being requested, the bill of costs

shall be supported by affidavit and accompanied by a memorandum

setting forth the grounds and authorities supporting the

request. Any vouchers, receipts or invoices supporting the cost

being requested shall be attached as exhibits.

(B) Objections to Bill of Costs. (i) An adverse party may

object to the Bill of Costs or to any item claimed therein by

filing objections within 28 days after the service of the Bill

of Costs. Within 7 days after service of the objections, the

prevailing party may file a reply. Unless a conference is

scheduled by the clerk, the taxation of costs or any

disallowance will be made by the clerk on the record. (ii) A

party may request the court to review the clerk's action by

filing a motion within 14 days after action by the clerk. The

court's review of the clerk's action will be made on the

existing record unless otherwise ordered.

(C) Costs in Settlements. The clerk will not tax costs on any

action terminated by settlement wherein the judgment is entered

pursuant to RCFC 68 or is dismissed pursuant to RCFC 41(a).

Settlement agreements must resolve any issue relating to costs.

In the absence of special agreement, parties will bear their

own costs.

(D) No Extensions. No extensions of time under this rule will

be permitted and the failure of a prevailing party to timely

file a Bill of Costs shall constitute a waiver of any claim for

costs.

(2) Attorneys' Fees.

(A) Claims for attorneys' fees and related nontaxable

expenses shall be made by motion unless the substantive law

governing the action provides for the recovery of such fees as

an element of damages to be proved at trial. See Appendix of

Forms, Form 5.

(B) Unless otherwise provided by statute or order of the

court, the motion must be filed no later than 30 days after the

date of final judgment, as defined in 28 U.S.C. Sec.

2412(d)(2)(G); must specify the judgment and the statute, rule,

or other grounds entitling the moving party to the award; and

must state the amount sought. If directed by the court, the

motion shall also disclose the terms of any agreement with

respect to fees to be paid for the services for which claim is

made.

(C) The court may determine issues of liability for fees

before receiving submissions bearing on issues of evaluation of

services for which liability is imposed by the court. The court

shall find the facts and state its conclusions of law as

provided in RCFC 52(a).

(D) The responding party shall have 28 days from the service

of the motion pursuant to subdivision (d)(2)(A) to file a

response, to which plaintiff may reply within 14 days after

service of the response. After the filing of a motion, and

response and reply, if any, the judge will enter an order

prescribing the procedure to be followed, either specially or

pursuant to the rules of the court, or take such other action

as may be deemed appropriate. In addition, the court may refer

issues relating to the value of services to a special master

under RCFC 53 without regard to the provisions of subdivision

(b) thereof.

(E) The provisions of subdivisions (d)(2)(A) through (D) do

not apply to claims for fees and expenses as sanctions for

violations of these rules or under 28 U.S.C. Sec. 1927.

-MISC1-

RULES COMMITTEE NOTE

RCFC 54(d) was revised in several respects. The subdivision was

modified to conform its structure to FRCP 54(d). In addition, the

subdivision, as re-written, departs from its FRCP counterpart in

several respects:

First, because the allowance of attorneys' fees and costs in this

court is almost always determined under the provisions of 28 U.S.C.

Sec. 2412 (a) & (d) (the Equal Access to Justice Act), it was

deemed advisable to reflect this fact in paragraph (d)(2) rather

than to retain the broader, but potentially misleading, language

that appears in FRCP 54(d)(1). See Neal & Co. v. United States, 121

F.3d 683 (Fed. Cir. 1997).

Second, Subdivision (d)(1) was enlarged beyond the scope of its

FRCP counterpart by the incorporation of RCFC 77.4 ("Taxation of

Costs").

Third, Subdivision (d)(2) brings together relevant sections of

its FRCP counterpart and former RCFC 81(e) ("Application for

Attorneys' Fees").

Finally, the time periods for objecting to a Bill of Costs and

for requesting review of the clerk's action are enlarged.

-End-

-CITE-

28 USC APPENDIX Rule 55 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VII. JUDGMENT

-HEAD-

Rule 55. Default

-STATUTE-

(a) Entry. When a party against whom a judgment for affirmative

relief is sought has failed to plead or otherwise defend as

provided by these rules and that fact is made to appear by

affidavit or otherwise, the clerk shall enter the party's default.

(b) Judgment. No judgment by default shall be entered unless the

claimant establishes a claim or right to relief by evidence

satisfactory to the court. The party entitled to a judgment by

default shall apply to the court therefor; but no judgment by

default shall be entered against an infant or incompetent person

unless represented in the action by a general guardian, committee,

conservator, or other such representative who has appeared therein.

If the party against whom judgment by default is sought has

appeared in the action, the party (or, if appearing by

representative, the party's representative) shall be served with

written notice of the application for judgment at least 3 days

prior to the hearing on such application. If, in order to enable

the court to enter judgment or to carry it into effect, it is

necessary to take an account or to determine the amount of damages

or to establish the truth of any averment by evidence or to make an

investigation of any other matter, the court may conduct such

hearings or order such references as it deems necessary and proper.

(c) Setting Aside Default. For good cause shown the court may set

aside an entry of default and, if a judgment by default has been

entered, may likewise set it aside in accordance with RCFC 60(b).

(d) Plaintiffs; Counterclaimants. The provisions of this rule

apply whether the party entitled to the judgment by default is a

plaintiff, a third-party plaintiff, or a party who has pleaded a

counterclaim. In all cases a judgment by default is subject to the

limitations of RCFC 54(c).

-MISC1-

RULES COMMITTEE NOTE

RCFC 55 recognizes the distinction between entry of default and

entry of judgment for default. Substantial changes were made. The

language in former subdivision (b)(1), permitting entry of default

judgment by the clerk, is omitted. Additionally, the protection

previously afforded only to the United States - prohibiting entry

of default judgments absent a showing by the claimant of a right to

relief by evidence satisfactory to the court - is expanded to

include all parties. Judgment requires proof and involvement of the

court.

-End-

-CITE-

28 USC APPENDIX Rule 56 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VII. JUDGMENT

-HEAD-

Rule 56. Summary Judgment

-STATUTE-

(a) For Claimant. A party seeking to recover upon a claim or

counterclaim or to obtain a declaratory judgment may, at any time

after the expiration of 60 days from the commencement of the action

in this court or after service of a motion for summary judgment by

the adverse party, move with or without supporting affidavits for a

summary judgment in such party's favor upon all or any part

thereof.

(b) For Defending Party. A party against whom a claim or

counterclaim is asserted or a declaratory judgment is sought may,

at any time, move with or without supporting affidavits for a

summary judgment in the party's favor as to all or any part

thereof.

(c) Motion and Proceedings Thereon. The judgment sought shall be

rendered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law. A summary judgment, interlocutory in character,

may be rendered on the issue of liability alone although there is a

genuine issue as to the amount of damages.

(d) Case Not Fully Adjudicated on Motion. If on motion under this

rule judgment is not rendered upon the whole case or for all the

relief asked and a trial is necessary, the court at the hearing of

the motion, by examining the pleadings and the evidence before it

and by interrogating counsel, shall if practicable ascertain what

material facts exist without substantial controversy and what

material facts are actually and in good faith controverted. It

shall thereupon make an order specifying the facts that appear

without substantial controversy, including the extent to which the

amount of damages or other relief is not in controversy, and

directing such further proceedings in the action as are just. Upon

the trial of the action the facts so specified shall be deemed

established, and the trial shall be conducted accordingly.

(e) Form of Affidavits; Further Testimony; Defense Required.

Supporting and opposing affidavits shall be made on personal

knowledge, shall set forth such facts as would be admissible in

evidence, and shall show affirmatively that the affiant is

competent to testify to the matters stated therein. Sworn or

certified copies of all papers or parts thereof referred to in an

affidavit shall be attached thereto or served therewith. The court

may permit affidavits to be supplemented or opposed by depositions,

answers to interrogatories, or further affidavits. When a motion

for summary judgment is made and supported as provided in this

rule, an adverse party may not rest upon the mere allegations or

denials of the adverse party's pleading, but the adverse party's

response, by affidavits or as otherwise provided in this rule, must

set forth specific facts showing that there is a genuine issue for

trial. If the adverse party does not so respond, summary judgment,

if appropriate, shall be entered against the adverse party.

(f) When Affidavits are Unavailable. Should it appear from the

affidavits of a party opposing the motion that the party cannot for

reasons stated present by affidavit facts essential to justify the

party's opposition, the court may refuse the application for

judgment or may order a continuance to permit affidavits to be

obtained or depositions to be taken or discovery to be had or may

make such other order as is just.

(g) Affidavits Made in Bad Faith. Should it appear to the

satisfaction of the court at any time that any of the affidavits

presented pursuant to this rule are presented in bad faith or

solely for the purpose of delay, the court shall forthwith order

the party employing them to pay to the other party the amount of

the reasonable expenses which the filing of the affidavits caused

the other party to incur, including reasonable attorney's fees, and

any offending party or attorney may be adjudged guilty of contempt.

(h) Procedures. The following procedures shall be followed with

respect to motions for summary judgment other than in actions

seeking review of a decision on the basis of an administrative

record:

(1) The moving or cross-moving party shall file, together with

its motion, a separate document titled Proposed Findings of

Uncontroverted Fact. This document shall contain concise,

separately numbered paragraphs setting forth all of the material

facts upon which the party bases its motion and as to which the

party believes there is no genuine dispute. Each paragraph shall

contain citations to the opposing party's pleadings or to

documentary evidence, such as affidavits or exhibits, filed with

the motion or otherwise part of the record in the case.

(2) The opposing party shall file, together with its

opposition, a response to the requested findings by indicating,

immediately below each finding, whether it agrees or disagrees

with the finding as stated. If the opposing party does not agree

with the proposed finding, it shall note the basis for its

objection and may draft a proposed revision of the finding

directly below the challenged finding. The opposing party may

also file proposed findings of uncontroverted fact as to any

relevant matters not covered by the moving party's statement.

Such additional statements of proposed findings shall be set

forth with the proposed findings applicable to any cross-motion,

but in the absence of a cross-motion shall be set forth in a

separate document. Responses to such additional proposed findings

shall be filed in a format which conforms to the instructions

noted above.

(3) The parties may dispense with the documents called for in

subdivision (h)(1)-(2) if they file, no later than the time of

the initial motion, a comprehensive stipulation of all of the

material facts upon which they intend to rely. In determining any

motion for summary judgment, the court will, absent persuasive

reason to the contrary, deem the material facts claimed and

adequately supported by the moving party to be established,

except to the extent that such material facts are controverted by

affidavit or other written or oral evidence.

-MISC1-

RULES COMMITTEE NOTE

The subdivision structure of RCFC 56 was reordered to more

closely conform to FRCP 56. In addition, the subdivision outlining

the procedures for filing a RCFC 56 motion was changed to eliminate

the Statement of Genuine Issues and to require parties to express

their views on any particular fact by noting them on a single page,

which may include a redraft of the challenged finding.

-End-

-CITE-

28 USC APPENDIX Rule 56.1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VII. JUDGMENT

-HEAD-

Rule 56.1. Review of Decision on the Basis of Administrative Record

-STATUTE-

(a) Standards. RCFC 56(a)-(b) applies, with the exception that

any supplementation of the administrative record shall be by

stipulation or by court order.

(b) Procedures.

(1) The moving or cross-moving party shall file, together with

its motion, a separate document titled Statement of Facts setting

forth the facts necessary to resolve the issues presented on

review. This document shall contain concise, separately numbered

paragraphs setting forth all of the facts upon which the party

bases its motion and which are supported by the record. Each

paragraph shall contain citations to the opposing party's

pleadings or to documentary evidence in the record.

(2) The opposing party shall file, together with its opposition

or cross-motion, a separate document titled Counter-Statement of

Facts. This document shall indicate immediately below each

statement of fact whether it agrees or disagrees with the fact as

stated. The party shall state the precise nature of its

disagreement and give its version of the events supported by

record citations. The opposing party may also file Proposed

Additional Facts as to any relevant matters not covered by the

moving party's statement to which the movant shall respond in

like format.

-MISC1-

RULES COMMITTEE NOTE

RCFC 56.1 has no FRCP counterpart. In the interests of procedural

clarity, the text of subdivision (a) was modified to reflect

current practice with respect to supplementation of the

administrative record and subdivision (b)(2) was modified to make

explicit an opposing party's right to file an opposition as well as

a cross-motion. In addition, the rule was conformed to RCFC 56

practice, in that the statement of facts and counterstatement of

facts are presented in a single document. In other respects, RCFC

56.1 remains unchanged.

-End-

-CITE-

28 USC APPENDIX Rule 56.2 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VII. JUDGMENT

-HEAD-

Rule 56.2. Remand; Extension or Termination of Stay of Proceedings

on Remand; Disposition of Case

-STATUTE-

(a) Remand.

(1) Issuance of Remand Order. At the request of a party or on

its own motion, the court may in any case within its jurisdiction

by order remand appropriate matters to any administrative or

executive body or official with such direction as may be deemed

proper and just.

(2) Content of Remand Order. An order of remand shall (A)

delineate the area of further consideration or action deemed

warranted on the remand, (B) fix the duration of the remand

period, not to exceed 6 months, and (C) specify the extent to

which court proceedings shall be stayed during the remand period.

(3) Service of Order. A certified copy of any order issued

pursuant to this rule shall be served by the clerk on the

administrative or executive body or official to whom the order is

directed. A copy of the order shall be served on each party in

conformity with RCFC 5.

(4) Transmittal of Administrative Record. Following service of

the order as provided for in this rule, the clerk shall transmit

the administrative record, if any, to the Department of Justice

for return to the administrative or executive body or official to

whom the order of remand is directed.

(5) Advice of Administrative Action. In every case in which an

order of remand is entered pursuant to this rule, the attorney of

record for the party so designated in the order of remand shall

report to the court the status of proceedings on remand at

intervals of 90 days or less, beginning with the date of the

order.

(b) Extension or Termination of Stay of Proceedings on Remand;

Disposition of Case.

(1) Extension. If the administrative or executive body or

official has not, during the period of stay provided for in an

order of remand pursuant to subdivision (a), rendered a decision

on the matter remanded, the party to whom opportunity was

afforded to obtain further administrative consideration shall, by

motion pursuant to RCFC 6, request an extension of the stay of

proceedings, or, by motion pursuant to RCFC 7, request the

initiation of proceedings toward otherwise disposing of the case.

(2) Disposition at Administrative Level. If, during the period

of the stay of proceedings as provided for in a remand order, the

parties dispose of the case at the administrative level, the

plaintiff shall file a motion to dismiss the case with prejudice.

(3) Decision on Remand. Upon completion of proceedings pursuant

to an order of remand under subdivision (a), the administrative

or executive body or official to whom the order was directed

shall forward to the clerk for filing 4 copies of the decision or

final action on remand. A copy of such decision or action shall

be served on each party by the clerk.

(4) Action by the Parties. Within 30 days after the filing of a

decision or final action pursuant to subdivision (3), each party

shall file with the clerk a notice indicating whether or not the

decision or final action on remand affords a satisfactory basis

for disposition of the claim at the administrative level, or

whether further proceedings before the court are deemed required,

and, if such proceedings are desired, what those proceedings

should be. A copy of such notice shall be served on each adverse

party in conformity with RCFC 5. Thereafter, the court will enter

an order prescribing the procedure to be followed, either

specially or pursuant to the rules of the court, or take such

other action as may be deemed appropriate.

-MISC1-

RULES COMMITTEE NOTE

RCFC 56.2 has no FRCP counterpart. The rule formerly appeared in

these rules as RCFC 60.1. The renumbering of RCFC 60.1 is intended

to reflect its more logical placement in the organizational

structure of the court's rules.

-End-

-CITE-

28 USC APPENDIX Rule 57 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VII. JUDGMENT

-HEAD-

Rule 57. Declaratory Judgments

-STATUTE-

The procedure for obtaining a declaratory judgment pursuant to 28

U.S.C. Secs. 1491(b)(2) and 1507 shall be in accordance with these

rules. The existence of another adequate remedy does not preclude a

judgment for declaratory relief in cases where it is appropriate.

The court may order a speedy hearing of an action for a declaratory

judgment and may advance it on the calendar.

-MISC1-

RULES COMMITTEE NOTE

The reference to 28 U.S.C. Sec. 1491(a) was amended to reflect

the corresponding change in that statute. The court's authority to

render declaratory judgments in the context of procurement protests

is found in 28 U.S.C. Sec. 1491(b)(2).

-End-

-CITE-

28 USC APPENDIX Rule 58 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VII. JUDGMENT

-HEAD-

Rule 58. Entry of Judgment

-STATUTE-

(a) Separate Document.

(1) Every judgment and amended judgment must be set forth on a

separate document, but a separate document is not required for an

order disposing of a motion:

(A) to amend or make additional findings of fact under RCFC

52(b);

(B) for attorney fees under RCFC 54;

(C) for new trial, or to alter or amend the judgment, under

RCFC 59; or

(D) for relief under RCFC 60.

(2) Subject to RCFC 54(b):

(A) the clerk must, without awaiting the court's direction,

promptly prepare, sign and enter the judgment when the court

awards only costs or a sum certain, or denies all relief;

(B) the court must promptly approve the form of the judgment,

which the clerk must promptly enter, when the court grants

relief not described in paragraph (a)(2) of this rule.

(b) Time of Entry. Judgment is entered for purposes of RCFC 52,

54(d)(2)(B), 59, 60, and 62:

(1) when it is entered in the civil docket under RCFC 79(a),

and

(2) if a separate document is required by paragraph (a)(1) of

this rule, upon the earlier of these events:

(A) when it is set forth on a separate document, or

(B) when 60 days have run from entry on the civil docket

under RCFC 79(a).

(c) Cost or Fee Awards.

(1) Entry of judgment may not be delayed, nor the time for

appeal extended, in order to tax costs or award fees except as

provided in RCFC 58(c)(2).

(2) When a timely motion for attorney fees is made under RCFC

54(d)(2) the court may act before a notice of appeal has been

filed and has become effective to order that the motion have the

same effect under Rule 4(a)(4) of the Federal Rules of Appellate

Procedure as a timely motion under RCFC 59.

(d) Request for Entry. A party may request that judgment be set

forth on a separate document as required by RCFC 58(a)(1).

-MISC1-

RULES COMMITTEE NOTE

RCFC 58 is essentially identical to the text that was proposed in

August 2000 by the Committee on Rules of Practice and Procedure of

the Judicial Conference of the United States, with the exception of

any references to trial by jury.

-REFTEXT-

REFERENCES IN TEXT

The Federal Rules of Appellate Procedure, referred to in subd.

(c)(2), are set out in this Appendix.

-End-

-CITE-

28 USC APPENDIX Rule 58.1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VII. JUDGMENT

-HEAD-

Rule 58.1. Notice of Appeal

-STATUTE-

Review of a decision of this court shall be obtained by filing

with the clerk an original and the requisite number of copies of a

notice of appeal (but not fewer than four) within the time and

manner prescribed for appeals to United States courts of appeal as

provided for in Rule 3 of the Federal Rules of Appellate Procedure,

together with the fee provided in RCFC 77.1(c)(2) of the Rules of

the United States Court of Federal Claims.

-MISC1-

RULES COMMITTEE NOTE

Although the rule has no FRCP counterpart, it is a necessary

component of the court's rules because it prescribes the time and

manner for the filing of an appeal from a decision of this court.

-REFTEXT-

REFERENCES IN TEXT

The Federal Rules of Appellate Procedure, referred to in text,

are set out in this Appendix.

-End-

-CITE-

28 USC APPENDIX Rule 59 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VII. JUDGMENT

-HEAD-

Rule 59. New Trials; Rehearings; Amendment of Judgments;

Reconsideration

-STATUTE-

(a) Grounds.

(1) A new trial or rehearing or reconsideration may be granted

to all or any of the parties and on all or part of the issues,

for any of the reasons established by the rules of common law or

equity applicable as between private parties in the courts of the

United States. On a motion under this rule, the court may open

the judgment if one has been entered, take additional testimony,

amend findings of fact and conclusions of law or make new

findings and conclusions, and direct the entry of a new judgment.

(2) The court, at any time while a suit is pending before it,

or after proceedings for review have been instituted, or within 2

years after the final disposition of the suit, may grant the

United States a new trial and stay the payment of any judgment

upon satisfactory evidence, cumulative or otherwise, that any

fraud, wrong, or injustice has been done to the United States.

(b) Time for Motion and Response. Except as provided in

subdivision (a)(2), a motion for a new trial, or for amendment or

reconsideration of a judgment, shall be filed no later than 10 days

after the entry of the judgment. When such a motion is based on

affidavits, they shall be filed with the motion. No response to any

motion under this rule may be filed, unless requested by the court.

The court will not rule in favor of any motion under this rule

without first requesting by order a response to the motion.

(c) [Not used.]

(d) On Court's Initiative; Notice; Specifying Grounds. No later

than 10 days after entry of judgment the court, on its own, may

order a new trial for any reason that would justify granting one on

a party's motion. After giving the parties notice and an

opportunity to be heard, the court may grant a timely motion for a

new trial for a reason not stated in the motion. When granting a

new trial on its own initiative or for a reason not stated in a

motion, the court shall specify the grounds in its order.

(e) Motion to Alter or Amend a Judgment. Any motion to alter or

amend a judgment shall be filed no later than 10 days after entry

of the judgment.

-MISC1-

RULES COMMITTEE NOTE

Minor changes in wording were made to more closely conform to

FRCP 59. Subdivision (c) was deleted to reflect the difference in

Court of Federal Claims practice, set out in subdivision (b), which

directs that a response to a RCFC 59 motion is only required when

directed by the court, even if the motion is accompanied by an

affidavit. Other differences were retained, including the

distinction between final and non-final orders, which can be the

subject of motions for reconsideration at any time before final

judgment.

-End-

-CITE-

28 USC APPENDIX Rule 60 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VII. JUDGMENT

-HEAD-

Rule 60. Relief from Judgment or Order

-STATUTE-

(a) Clerical Mistakes. Clerical mistakes in judgments, orders or

other parts of the record and errors therein arising from oversight

or omission may be corrected by the court at any time of its own

initiative or on the motion of any party and after such notice, if

any, as the court orders. During the pendency of an appeal, such

mistakes may be so corrected before the appeal is docketed in the

appellate court, and thereafter while the appeal is pending may be

so corrected with leave of the appellate court.

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered

Evidence; Fraud, Etc. On motion and upon such terms as are just,

the court may relieve a party or the party's legal representative

from a final judgment, order, or proceeding for the following

reasons: (1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence which by due diligence could not have

been discovered in time to move for a new trial under RCFC 59(b);

(3) fraud (whether heretofore denominated intrinsic or extrinsic),

misrepresentation, or other misconduct of an adverse party; (4) the

judgment is void; (5) the judgment has been satisfied, released, or

discharged, or a prior judgment upon which it is based has been

reversed or otherwise vacated, or it is no longer equitable that

the judgment should have prospective application; or (6) any other

reason justifying relief from the operation of the judgment. The

motion shall be made within a reasonable time, and for reasons (1),

(2), and (3) not more than one year after the judgment, order, or

proceeding was entered or taken. A motion under this subdivision

(b) does not affect the finality of a judgment or suspend its

operation. This rule does not limit the power of a court to

entertain an independent action to relieve a party from a judgment,

order, or proceeding, or to set aside a judgment for fraud upon the

court. Writs of coram nobis, coram vobis, audita querela, and bills

of review and bills in the nature of a bill of review, are

abolished, and the procedure for obtaining any relief from a

judgment shall be by motion as prescribed in these rules or by an

independent action.

-MISC1-

RULES COMMITTEE NOTE

Minor changes in wording were made to more closely conform to

FRCP 60. Necessary differences were retained.

-End-

-CITE-

28 USC APPENDIX Rule 61 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VII. JUDGMENT

-HEAD-

Rule 61. Harmless Error

-STATUTE-

No error in either the admission or the exclusion of evidence and

no error or defect in any ruling or order or in anything done or

omitted by the court or by any of the parties is ground for

granting a new trial or for vacating, modifying, or otherwise

disturbing a judgment or order, unless refusal to take such action

appears to the court inconsistent with substantial justice. The

court at every stage of the proceeding must disregard any error or

defect in the proceeding which does not affect the substantial

rights of the parties.

-MISC1-

RULES COMMITTEE NOTE

The rule as written is identical to FRCP 61.

-End-

-CITE-

28 USC APPENDIX Rule 62 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VII. JUDGMENT

-HEAD-

Rule 62. Stay of Proceedings to Enforce a Judgment

-STATUTE-

(a) Automatic Stay; Exceptions - Injunctions and Patent

Accountings. Except as stated herein, no execution shall issue upon

a judgment nor shall proceedings be taken for its enforcement until

the expiration of 10 days after its entry. Unless otherwise ordered

by the court, an interlocutory or final judgment in an action for

an injunction, or a judgment or order directing an accounting in an

action for infringement of letters patent, shall not be stayed

during the period after its entry and until an appeal is taken or

during the pendency of an appeal. The provisions of subdivision (c)

of this rule govern the suspending, modifying, restoring, or

granting of an injunction during the pendency of an appeal.

(b) Stay on Motion for New Trial or for Judgment. In its

discretion and on such conditions for the security of the adverse

party as are proper, the court may stay the execution of or any

proceedings to enforce a judgment pending the disposition of a

motion for a new trial or to alter or amend a judgment made

pursuant to RCFC 59, or of a motion for relief from a judgment or

order made pursuant to RCFC 60, or of a motion for amendment to the

findings or for additional findings made pursuant to RCFC 52(b).

(c) Injunction Pending Appeal. When an appeal is taken from an

interlocutory or final judgment granting, dissolving, or denying an

injunction, the court in its discretion may suspend, modify,

restore, or grant an injunction during the pendency of the appeal

upon such terms as to bond or otherwise as it considers proper for

the security of the rights of the adverse party.

(d) Stay Upon Appeal. When an appeal is taken the appellant by

giving a supersedeas bond may obtain a stay subject to the

exceptions contained in subdivision (a) of this rule. The bond may

be given at or after the time of filing the notice of appeal or of

procuring the order allowing the appeal, as the case may be. The

stay is effective when the supersedeas bond is approved by the

court.

(e) Stay in Favor of the United States or Agency Thereof. When an

appeal is taken by the United States or an officer or agency

thereof or by direction of any department of the Government of the

United States and the operation or enforcement of the judgment is

stayed, no bond, obligation, or other security shall be required

from the appellant.

(f) Stay According to State Law. [Not used.]

(g) Power of Appellate Court Not Limited. The provisions in this

rule do not limit any power of an appellate court or of a judge or

justice thereof to stay proceedings during the pendency of an

appeal or to suspend, modify, restore, or grant an injunction

during the pendency of an appeal or to make any order appropriate

to preserve the status quo or the effectiveness of the judgment

subsequently to be entered.

(h) Stay of Judgment as to Multiple Claims or Multiple Parties.

When a court has ordered a final judgment under the conditions

stated in RCFC 54(b), the court may stay enforcement of that

judgment until the entering of a subsequent judgment or judgments

and may prescribe such conditions as are necessary to secure the

benefit thereof to the party in whose favor the judgment is

entered.

-MISC1-

RULES COMMITTEE NOTE

Minor changes in text were made to subdivision (a) in order to

more closely conform the rule to FRCP 62. However, certain

necessary differences were retained.

-End-

-CITE-

28 USC APPENDIX Rule 63 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VII. JUDGMENT

-HEAD-

Rule 63. Inability of a Judge to Proceed

-STATUTE-

If a trial or hearing has been commenced and the judge is unable

to proceed, any other judge may proceed with it upon certifying

familiarity with the record and determining that the proceedings in

the case may be completed without prejudice to the parties. The

successor judge shall at the request of a party recall any witness

whose testimony is material and disputed and who is available to

testify again without undue burden. The successor judge may also

recall any other witness.

-MISC1-

RULES COMMITTEE NOTE

Subdivisions (b) and (c) were deleted as unnecessary. The

substance of each is covered in 28 U.S.C. Sec. 455 and in the Codes

of Conduct for Judges and Judicial Employees. The rule as rewritten

is essentially identical to FRCP 63.

-End-

-CITE-

28 USC APPENDIX VIII. PROVISIONAL AND FINAL

REMEDIES 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-

VIII. PROVISIONAL AND FINAL REMEDIES

-End-

-CITE-

28 USC APPENDIX Rule 64 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-

Rule 64. Seizure of Person or Property [Not used.]

-STATUTE-

-End-

-CITE-

28 USC APPENDIX Rule 65 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-

Rule 65. Injunctions

-STATUTE-

(a) Preliminary Injunction.

(1) Notice. No preliminary injunction shall be issued without

notice to the adverse party.

(2) Consolidation of Hearing With Trial on Merits. Before or

after the commencement of the hearing of an application for a

preliminary injunction, the court may order the trial of the

action on the merits to be advanced and consolidated with the

hearing of the application. Even when this consolidation is not

ordered, any evidence received upon an application for a

preliminary injunction which would be admissible upon the trial

on the merits becomes part of the record on the trial and need

not be repeated upon the trial.

(b) Temporary Restraining Order; Notice; Hearing; Duration. A

temporary restraining order may be granted without written or oral

notice to the adverse party or that party's attorney only if (1) it

clearly appears from specific facts shown by affidavit or by the

verified complaint that immediate and irreparable injury, loss, or

damage will result to the applicant before the adverse party or

that party's attorney can be heard in opposition, and (2) the

applicant's attorney certifies to the court in writing the efforts,

if any, which have been made to give the notice and the reasons

supporting the attorney's claim that notice should not be required.

Every temporary restraining order granted without notice shall be

indorsed with the date and hour of issuance; shall be filed

forthwith in the clerk's office and entered of record; shall define

the injury and state why it is irreparable and why the order was

granted without notice; and shall expire by its terms within such

time after entry, not to exceed 10 days, as the court fixes, unless

within the time so fixed the order, for good cause shown, is

extended for a like period or unless the party against whom the

order is directed consents that it may be extended for a longer

period. The reasons for the extension shall be entered of record.

In case a temporary restraining order is granted without notice,

the motion for a preliminary injunction shall be set down for

hearing at the earliest possible time and takes precedence of all

matters except older matters of the same character; and when the

motion comes on for hearing the party who obtained the temporary

restraining order shall proceed with the application for a

preliminary injunction and, if the party does not do so, the court

shall dissolve the temporary restraining order. On 2 days' notice

to the party who obtained the temporary restraining order without

notice or on such shorter notice to that party as the court may

prescribe, the adverse party may appear and move its dissolution or

modification and in that event the court shall proceed to hear and

determine such motion as expeditiously as the ends of justice

require.

(c) Security. No restraining order or preliminary injunction

shall issue except upon the giving of security by the applicant, in

such sum as the court deems proper, for the payment of such costs

and damages as may be incurred or suffered by any party who is

found to have been wrongfully enjoined or restrained. No such

security shall be required of the United States or of an officer or

agency thereof.

The provisions of RCFC 65.1 apply to a surety upon a bond or

undertaking under this rule.

(d) Form and Scope of Injunction or Restraining Order. Every

order granting an injunction and every restraining order shall set

forth the reasons for its issuance; shall be specific in terms;

shall describe in reasonable detail, and not by reference to the

complaint or other document, the act or acts sought to be

restrained; and is binding only upon the parties to the action,

their officers, agents, servants, employees, and attorneys, and

upon those persons in active concert or participation with them who

receive actual notice of the order by personal service or

otherwise.

(e) Employer and Employee. These rules do not modify any statute

of the United States relating to temporary restraining orders and

preliminary injunctions in actions affecting employer and employee.

-MISC1-

RULES COMMITTEE NOTE

Minor textual changes were made to subdivision (b) in order to

more closely conform to its FRCP counterpart. Additionally,

subdivision (f) (titled "Procedures") has been relocated to

Appendix C. (Appendix C supersedes former General Order No. 38,

dated May 7, 1998, which described the court's standard practices

in procurement protest cases filed pursuant to 28 U.S.C. Sec.

1491(b).)

-End-

-CITE-

28 USC APPENDIX Rule 65.1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-

Rule 65.1. Security: Proceedings Against Sureties

-STATUTE-

(a) Proceedings. Whenever these rules require or permit the

giving of security by a party, and security is given in the form of

a bond or stipulation or other undertaking with one or more

sureties, each surety submits to the jurisdiction of the court and

irrevocably appoints the clerk of the court as the surety's agent

upon whom any papers affecting the surety's liability on the bond

or undertaking may be served. The surety's liability may be

enforced on motion without the necessity of an independent action.

The motion and such notice of the motion as the court prescribes

may be served on the clerk of the court, who shall forthwith mail

copies to the sureties if their addresses are known.

(b) Sureties. Acceptable sureties on bonds shall be those bonding

companies holding certificates of authority from the Secretary of

the Treasury. See the latest U.S. Treasury Dept. Circ. 570. When a

court decision provides for the giving of security, the clerk will

furnish counsel with the appropriate bond form.

-MISC1-

RULES COMMITTEE NOTE

Subdivision (a) is identical to FRCP 65.1. Subdivision (b)

(titled "Sureties"), although unique to this court, provides

information useful to the court's practitioners and is therefore

being retained.

-End-

-CITE-

28 USC APPENDIX Rule 66 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-

Rule 66. Receivers Appointed by Federal Courts [Not used.]

-STATUTE-

-End-

-CITE-

28 USC APPENDIX Rule 67 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-

Rule 67. Deposit in Court [Not used.]

-STATUTE-

-End-

-CITE-

28 USC APPENDIX Rule 68 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-

Rule 68. Offer of Judgment

-STATUTE-

At any time more than 10 days before the trial begins, a party

defending against a claim may serve upon the adverse party an offer

to allow judgment to be taken against the defending party for the

money or property or to the effect specified in the offer, with

costs then accrued. If within 10 days after the service of the

offer the adverse party serves written notice that the offer is

accepted, either party may then file the offer and notice of

acceptance together with proof of service thereof, and thereupon

the clerk shall enter judgment. An offer not accepted shall be

deemed withdrawn and evidence thereof is not admissible except in a

proceeding to determine costs. If the judgment finally obtained by

the offeree is not more favorable than the offer, the offeree must

pay the costs incurred after the making of the offer. The fact that

an offer is made but not accepted does not preclude a subsequent

offer. When the liability of one party to another has been

determined by order or judgment, but the amount or extent of the

liability remains to be determined by further proceedings, the

party adjudged liable may make an offer of judgment, which shall

have the same effect as an offer made before trial if it is served

within a reasonable time not less than 10 days prior to the

commencement of hearings to determine the amount or extent of

liability.

-MISC1-

RULES COMMITTEE NOTE

A minor change in wording was made in order to more closely

conform to FRCP 68.

-End-

-CITE-

28 USC APPENDIX Rule 69 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-

Rule 69. Execution [Not used.]

-STATUTE-

-End-

-CITE-

28 USC APPENDIX Rule 70 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-

Rule 70. Judgment for Specific Acts; Vesting Title [Not used.]

-STATUTE-

-End-

-CITE-

28 USC APPENDIX Rule 71 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-

Rule 71. Process in Behalf of and Against Persons Not Parties [Not

used.]

-STATUTE-

-End-

-CITE-

28 USC APPENDIX IX. SPECIAL PROCEEDINGS 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

IX. SPECIAL PROCEEDINGS

-HEAD-

IX. SPECIAL PROCEEDINGS

-End-

-CITE-

28 USC APPENDIX Rule 71A 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

IX. SPECIAL PROCEEDINGS

-HEAD-

Rule 71A. Condemnation of Property [Not used.]

-STATUTE-

-End-

-CITE-

28 USC APPENDIX Rule 72 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

IX. SPECIAL PROCEEDINGS

-HEAD-

Rule 72. Notice of Appeal [Not used.]

-STATUTE-

-MISC1-

RULES COMMITTEE NOTE

Chapter IX of the Federal Rules of Civil Procedure, titled

"Special Proceedings," (comprising FRCP 71A - FRCP 73) has not been

included in the main body of the court's rules. Instead, rules

relating to the court's special proceedings appear in the

appendices to the rules.

-End-

-CITE-

28 USC APPENDIX Rule 73 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

IX. SPECIAL PROCEEDINGS

-HEAD-

Rule 73. Magistrate Judges; Trial by Consent and Appeal Options

[Not used.]

-STATUTE-

-End-

-CITE-

28 USC APPENDIX Rule 74-76 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

IX. SPECIAL PROCEEDINGS

-HEAD-

Rule 74-76. [Abrogated.]

-STATUTE-

-End-

-CITE-

28 USC APPENDIX X. COURT AND CLERK 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

X. COURT AND CLERK

-HEAD-

X. COURT AND CLERK

-End-

-CITE-

28 USC APPENDIX Rule 77 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

X. COURT AND CLERK

-HEAD-

Rule 77. Court and Clerk

-STATUTE-

(a) Court Always Open. The court shall be deemed always open for

the purpose of filing any pleading or other proper paper, of

issuing and returning process, and of making and directing all

interlocutory motions, orders, and rules.

(b) Trials and Hearings; Proceedings in Chambers.

(1) Proceedings Generally. All trials upon the merits shall be

conducted in open court and so far as convenient in a regular

courtroom. All other acts or proceedings may be done or conducted

by a judge in chambers, without the attendance of the clerk or

other court officials or at any other place designated by order.

(2) Trials or Hearings in Foreign Countries. Upon motion of a

party or upon the judge's own initiative, and upon a

determination by the judge to whom the case is assigned that the

interests of economy, efficiency, and justice will be served, the

chief judge of the Court of Federal Claims may issue an order

authorizing a judge of the court to conduct proceedings,

including evidentiary hearings and trials, in a foreign country

whose laws do not prohibit such proceedings.

(c) Clerk's Office and Orders by Clerk. The clerk's office with

the clerk or a deputy in attendance shall be open during business

hours on all days except Saturdays, Sundays, and the following

holidays: New Year's Day, Inauguration Day, Birthday of Martin

Luther King, Jr., Washington's Birthday, Memorial Day, Independence

Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day,

Christmas Day, and any other day designated as a holiday by the

President or the Congress of the United States. All motions and

applications in the clerk's office for issuing process, process to

enforce and execute judgments, for entering defaults or judgments

by default, and for other proceedings which do not require

allowance or order of the court are grantable of course by the

clerk; but the clerk's action may be suspended or altered or

rescinded by the court upon cause shown.

(d) Notice of Orders or Judgments. Immediately upon the entry of

an order or judgment the clerk shall serve a notice of the entry in

the manner provided for in RCFC 5 upon each party who is not in

default for failure to appear and shall make a note in the docket

of the service. Any party may in addition serve a notice of such

entry in the manner provided in RCFC 5 for the service of papers.

Lack of notice of the entry by the clerk does not affect the time

to appeal or relieve or authorize the court to relieve a party for

failure to appeal within the time allowed, except as permitted in

Rule 4(a) of the Federal Rules of Appellate Procedure.

-MISC1-

RULES COMMITTEE NOTE

In order to more closely parallel the structure and content of

FRCP 77, RCFC 77 has been modified as follows:

Former subdivisions (a) (referring to the court's "Name"), (b)

(referring to the court's "Seal"), (d) (captioned "Citations") and

(e) (identifying the court's judicial power as being exercisable by

a single judge, except in congressional reference cases), have been

deleted as unnecessary.

Subdivision (b) (formerly subdivision (h) of this rule) is

changed in two respects. First, in order better to reflect its

content, the subdivision is retitled to read "Trials and Hearings;

Proceedings in Chambers" (in lieu of "Trials and Hearings; Orders

in Chambers"). Second, the subdivision has been divided into

paragraphs (1) and (2). Paragraph (1), captioned "Proceedings

Generally," retains the rule's earlier language; paragraph (2),

captioned "Trials or Hearings in Foreign Countries," is new.

Paragraph (2) was added to recognize the court's authority under 28

U.S.C. Sec. 798(b) to conduct trials or hearings in foreign

countries.

Former subdivision (f) (titled "Assignment of Cases") was

renumbered as RCFC 40.1.

Former subdivision (g) (titled "Signing of Orders for Absent

Judges") was renumbered as RCFC 77.2(b).

Former subdivisions (l) & (k) (titled, respectively, "Scheduling

Courtrooms" and "Fee Schedule"), were renumbered as RCFC 77.1.

Finally, former subdivision (m) was deleted in order to recognize

the right of certain court employees to participate in pro bono

legal work under the guidelines prescribed for that purpose by the

Codes of Conduct for Judicial Employees.

-REFTEXT-

REFERENCES IN TEXT

The Federal Rules of Appellate Procedure, referred to in subd.

(d), are set out in this Appendix.

-End-

-CITE-

28 USC APPENDIX Rule 77.1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

X. COURT AND CLERK

-HEAD-

Rule 77.1. Business Hours, Scheduling and Fees

-STATUTE-

(a) Business Hours. The Office of the Clerk is open during the

hours 8:45 a.m. to 5:15 p.m. on business days. A night box is

provided for filing with the Office of the Clerk between the hours

of 5:15 p.m. and 12:00 midnight on any business day for papers due

that day. The box is located inside the gate at the garage entrance

on H Street. It is suggested that counsel telephone the clerk's

office by 9:30 a.m. of the next day as to receipt, (202) 219-9562.

(b) Scheduling. The clerk shall schedule the use of courtrooms in

Washington, D.C., and shall be responsible for all arrangements for

courtrooms and other facilities required by the court at locations

other than in Washington, D.C. All conferences, oral arguments,

trials, and other recorded appearances shall be scheduled by the

judge by order filed with the clerk.

(c) Fee Schedule.

(1) Fees for services rendered by the clerk are payable in

advance; all checks are to be made payable to "Clerk, United

States Court of Federal Claims."

(2) Fees are:

Admission to practice and certificate $50.00

thereof

(Calligraphied certificate $25.00)

Duplicate certificate of admission or $15.00

certificate of good standing

Filing complaint $150.00

Filing intervening complaint $150.00

Certifying any document or paper $7.00

Reproducing any record, entry or other $.50 per page

paper for a maximum of 50 pages

Filing Notice of Appeal $105.00 (includes $5.00

notice of appeal and

$100.00 Court of Appeals

fees)

Receipt of monthly listing of court $15.00

orders and opinions (per year)

Returned check fee $35.00

Record search (per name or item $20.00

searched)

--------------------------------------------------------------------

Such other fees as authorized by the Judicial Conference of the

United States.

-MISC1-

RULES COMMITTEE NOTE

Former RCFC 77.1 was deleted in its entirety. Current RCFC 77.1

reflects portions of the text of former subdivisions (c) as well as

subdivisions (h) and (i) of RCFC 77.

-End-

-CITE-

28 USC APPENDIX Rule 77.2 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

X. COURT AND CLERK

-HEAD-

Rule 77.2. Authorization to Act on Certain Motions

-STATUTE-

(a) Clerk Authorization. Any motion for enlargement of time to

answer or respond to the complaint or, for substitution of counsel,

may be acted upon by the clerk of the court if (1) the motion

states that opposing counsel has no objection, (2) no opposition to

the motion has been timely filed, or (3) opposing counsel files a

consent.

In acting on motions for enlargement of time under this

subdivision of the rule, the total enlargement of time allowed by

the clerk with respect to any matter shall not exceed 60 days.

(b) Signing of Orders for Absent Judges. If the judge to whom the

action is assigned is not available and there is an emergency

necessitating an order, the matter shall be presented to the chief

judge, or to another judge designated by the assigned judge.

-MISC1-

RULES COMMITTEE NOTE

This rule has no FRCP counterpart. The rule was changed in

several respects. First, former subdivisions (a) and (b) were

combined into a new subdivision (a). Second, language in former

subdivision (a) relating to the "permanent withdrawal of papers"

was deleted to reflect corresponding changes in RCFC 77.3 that

abolish the practice of permitting the withdrawal of papers from

the clerk's office. Third, former subdivisions (c) and (d) were

deleted as unnecessary. Finally, new subdivision (b) reflects text

transferred from former subdivision (g) of RCFC 77.

-End-

-CITE-

28 USC APPENDIX Rule 77.3 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

X. COURT AND CLERK

-HEAD-

Rule 77.3. Withdrawal of Papers, Exhibits

-STATUTE-

(a) Withdrawal for Trial. The reporter engaged to transcribe the

evidence may temporarily withdraw all papers and exhibits for use

during any trial session. All exhibits admitted into evidence or

designated to accompany the transcript shall remain in the

reporter's custody until the transcript of the court session is

filed with the clerk.

(b) Withdrawal of Papers and Exhibits. No papers or exhibits

filed with the court shall be temporarily or permanently withdrawn

from the office or custody of the clerk except by order of the

court. No such order will be entered except in extraordinary

circumstances. In the event of such withdrawal, a record of the

filing and the order of withdrawal shall be preserved.

(c) Disposition of Physical Exhibits. All physical exhibits,

including models, diagrams, depositions, transcripts, briefs,

tables, and charts shall be removed from the clerk's custody by the

party by whom they were produced or offered within sixty (60) days

after the entry of final judgment by this court, or, in the event

of an appeal, within ninety (90) days after the receipt and filing

of a mandate or other process or certificate showing the

disposition of the case by the appellate court; otherwise, such

exhibits shall be deemed abandoned and shall be destroyed or

otherwise disposed of by the clerk.

(d) Sealed Materials. Unless otherwise specified by order, no

earlier than five years after the entry of final judgment by this

court, or, in the event of appeal, within five years after the

receipt and filing of a mandate or other process or certificate

showing disposition of the case by the appellate court, the clerk

may notify the parties that materials maintained under seal shall

be unsealed, absent timely notice of objection by either party.

-MISC1-

RULES COMMITTEE NOTE

This rule has no FRCP counterpart. The rule has been amended in

several respects:

First, former subdivision (a) was deleted, thereby eliminating

the practice of permitting temporary withdrawal of exhibits and

papers by the parties. The need to accommodate the copying of

extensive parts of a record should be addressed directly through

arrangements made by the clerk.

Subdivision (a), formerly subdivision (b), was amended to clarify

that the reporter is to retain custody of the transcript and

exhibits until they are filed with the clerk.

New subdivision (b), formerly subdivision (c), clarifies that no

withdrawal of papers or exhibits from the clerk's office may occur

in the absence of a court order, and then only in extraordinary

circumstances. The fact of withdrawal shall be preserved in the

court's docketing entries.

New subdivision (c), formerly subdivision (d), was rewritten to

clarify the practice with respect to the disposition of physical

exhibits and to make clear the parties' obligation to retrieve such

exhibits, to avoid their loss through routine disposal. The

reference to in camera materials was omitted, because such

materials are not filed with the Office of the Clerk.

New subdivision (d) establishes a procedure for handling

materials filed under seal, requiring the parties affirmatively to

indicate a desire to maintain filings in closed cases under seal.

-End-

-CITE-

28 USC APPENDIX Rule 78 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

X. COURT AND CLERK

-HEAD-

Rule 78. Motions Day [Not used.]

-STATUTE-

-End-

-CITE-

28 USC APPENDIX Rule 79 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

X. COURT AND CLERK

-HEAD-

Rule 79. Books and Records Kept by the Clerk and Entries Therein

-STATUTE-

(a) Civil Docket. The clerk shall keep a book known as "civil

docket" of such form and style as may be prescribed by the Director

of the Administrative Office of the United States Courts with the

approval of the Judicial Conference of the United States, and shall

enter therein each civil action to which these rules are made

applicable. Actions shall be assigned consecutive file numbers. The

file number of each action shall be noted on the folio of the

docket whereon the first entry of the action is made. All papers

filed with the clerk, all process issued and returns made thereon,

except for subpoenas, all appearances, orders, and judgments shall

be entered chronologically in the docket on the folio assigned to

the action and shall be marked with its file number. These entries

shall be brief but shall show the nature of each paper filed or

writ issued and the substance of each order or judgment of the

court and of the returns showing execution of process. The entry of

an order or judgment shall show the date the entry is made.

(b) Civil Judgments and Orders. The clerk shall keep, in such

form and manner as the Director of the Administrative Office of the

United States Courts with the approval of the Judicial Conference

of the United States may prescribe, a correct copy of every final

judgment or appealable order, or order affecting title to or lien

upon real or personal property, and any other order which the court

may direct to be kept.

(c) Indices; Calendars. Suitable indices of the civil docket and

of every civil judgment and order referred to in subdivision (b) of

this rule shall be kept by the clerk under the direction of the

court.

(d) Other Books and Records of the Clerk. The clerk shall also

keep such other books and records as may be required from time to

time by the Director of the Administrative Office of the United

States Courts with the approval of the Judicial Conference of the

United States.

-MISC1-

RULES COMMITTEE NOTE

The word "civil" was added to subdivision (a) to more closely

conform the rule to FRCP 79. RCFC 79 as it now reads is essentially

identical to FRCP 79.

-End-

-CITE-

28 USC APPENDIX Rule 80 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

X. COURT AND CLERK

-HEAD-

Rule 80. Record or Transcript as Evidence

-STATUTE-

Whenever the testimony of a witness at a trial or hearing which

was reported is admissible in evidence at a later trial, it may be

proved by the transcript thereof duly certified by the person who

reported the testimony.

-MISC1-

RULES COMMITTEE NOTE

Former subdivisions (a), (b) and (c) were deleted and minor

changes were made to former subdivision (d) in order to more

closely conform the rule to FRCP 80.

-End-

-CITE-

28 USC APPENDIX Rule 80.1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

X. COURT AND CLERK

-HEAD-

Rule 80.1. Instructions to Reporters

-STATUTE-

(a) Record of Proceedings. The court will furnish a reporter to

take down the trial proceedings and transcribe the same in any

trial.

(b) Reporter; Control. The reporter shall be under the

jurisdiction and control of the judge.

(c) Caption Page. There shall be stated on the caption page: (a)

the style of the cause in which the testimony is taken; (b) the

place and date of its taking; (c) the identity of the party by whom

each witness is called; (d) the name of the judge; and (e) the

appearances of counsel. See Appendix of Forms, Form 3.

(d) Testimony. It shall appear in the transcript of the

proceedings and testimony by whom each witness was examined and

cross-examined. At the top of each page shall appear the name of

the witness and the nature of his examination, such as Roe-direct,

Roe-cross, Roe-redirect.

(e) Preparation of Transcript. The reporter shall transcribe all

testimony on nontransparent white paper, either 8 1/2 inches wide

by 11 inches long, or 8 inches wide by 10 1/2 inches long, bound

on the left margin. The pages shall be numbered consecutively, with

a minimum of 25 lines per page. It is not necessary for the

witnesses to sign the transcripts of their testimony.

(f) Exhibits. All exhibits offered by either of the parties shall

bear the caption and number of the case, the exhibit numbers, in

figures, whether for plaintiff or defendant unless the court

provides for the offering parties to otherwise designate their

exhibits, and the number of sheets in each exhibit. All exhibits

admitted in evidence or designated to accompany the transcript

shall accompany and be filed with the transcript of the testimony,

but shall not be affixed thereto.

(g) Certificate of Reporter. The reporter shall append to the

transcript of the testimony a certificate similar to Appendix of

Forms (Forms 3A and 3B). The certificate shall be signed by the

reporter.

(h) index.(!1) At the beginning of each volume of the transcript

of testimony, there shall be an index containing: (a) the names of

the witnesses examined, citing the pages of the transcript where

direct, cross, redirect, or recross-examination of the respective

witnesses began; and (b) the exhibits in the case, first for the

plaintiff and then for the defendant, with a brief statement of the

nature of each of the exhibits and with references to the pages of

the transcript where said respective exhibits were (1) offered and

(2) received in evidence. In addition, upon the preparation of the

final transcript, where the number of pages exceeds 500, a master

index containing the same information shall be prepared and bound

separately.

(i) Return of Transcript and Exhibits. Unless otherwise ordered

by the judge, the reporter shall file the transcript of trial

proceedings, including the exhibits admitted in evidence or

designated to accompany the transcript, with the clerk within 30

days after the conclusion of the trial session at which such

proceedings were had. The filing may be accomplished by personal

delivery of the transcript and exhibits to the clerk's office or by

enclosing them in a packet and transmitting them to the Clerk,

United States Court of Federal Claims, 717 Madison Place, N.W.,

Washington, D.C. 20005, in sufficient time for the transcript and

exhibits to be filed within the prescribed period. The obligation

for the filing of the transcript and exhibits within the prescribed

period rests upon the reporter.

-MISC1-

RULES COMMITTEE NOTE

RCFC 80.1 has no FRCP counterpart. The rule's principal text

formerly appeared in these rules as Appendix A. The incorporation

of former Appendix A into the main body of the rules reflects a

more logical placement of its subject matter in the organizational

structure of the court's rules. Additionally, as part of this

rule's relocation, Forms A and B of former Appendix A (pertaining

to reporter certifications) were assigned to the new Appendix of

Forms. They appear there as Forms 3A and 3B.

Other changes introduced in this rule include the following:

Subdivision (a) of the rule formerly appeared in these rules as

paragraph (b)(1) of RCFC 39. The changes introduced in new

subdivision (a) were deemed necessary in order to eliminate

uncertainty as to the court's authority to furnish a reporter for

trials scheduled outside of the United States.

Subdivision (b) of the rule formerly appeared as paragraph (b)(2)

of RCFC 39.

Subdivision (i) of the rule formerly appeared as paragraph (b)(3)

of RCFC 39. Additionally, subdivision (i) reflects the change in

the court's name.

-FOOTNOTE-

(!1) So in original. Probably should be capitalized.

-End-

-CITE-

28 USC APPENDIX XI. GENERAL PROVISIONS 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

XI. GENERAL PROVISIONS

-HEAD-

XI. GENERAL PROVISIONS

-End-

-CITE-

28 USC APPENDIX Rule 81 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

XI. GENERAL PROVISIONS

-HEAD-

Rule 81. Applicability in General [Not used.]

-STATUTE-

-End-

-CITE-

28 USC APPENDIX Rule 82 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

XI. GENERAL PROVISIONS

-HEAD-

Rule 82. Jurisdiction and Venue Unaffected [Not used.]

-STATUTE-

-End-

-CITE-

28 USC APPENDIX Rule 83 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

XI. GENERAL PROVISIONS

-HEAD-

Rule 83. Rules by Court of Federal Claims; Judge's Directives

-STATUTE-

(a) Rules. The United States Court of Federal Claims, acting by a

majority of its judges, may, after giving appropriate public notice

and an opportunity for comment, make and amend rules governing its

practice. Such rules, to the extent permitted by this court's

jurisdiction, shall be consistent with the Federal Rules of Civil

Procedure and to any uniform numbering system prescribed by the

Judicial Conference of the United States. A rule takes effect on

the date specified by the court and remains in effect unless

amended by the court. Copies of rules and amendments shall be made

available to the public.

(b) Procedures When There is no Controlling Law. A judge may

regulate practice in any manner consistent with federal law or

rules adopted under 28 U.S.C. Secs. 2072, or 2503(b). No sanction

or other disadvantage may be imposed for non-compliance with any

requirement not in federal law, federal rules, or these rules,

unless the alleged violator has been furnished in the particular

case with actual notice of the requirement.

-MISC1-

RULES COMMITTEE NOTE

RCFC 83 is modeled after FRCP 83. The rule recognizes the court's

rule-making authority as set forth at 28 U.S.C. Sec. 2503, as well

as the individual judge's authority to regulate practice in an

individual case, so long as that practice is consistent with

federal law and rules.

-REFTEXT-

REFERENCES IN TEXT

The Federal Rules of Civil Procedure, referred to in subd. (a),

are set out in this Appendix.

-End-

-CITE-

28 USC APPENDIX Rule 83.1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

XI. GENERAL PROVISIONS

-HEAD-

Rule 83.1. Attorneys

-STATUTE-

(a) Attorneys Eligible to Practice. Only attorneys who are

members of the bar of this court and who comply with these rules

may enter an appearance, file pleadings, and practice in this

court, provided that any attorney admitted to practice before the

highest court of any state, territory, possession or the District

of Columbia may participate pro hac vice in any proceeding at the

request of and in the presence of the attorney of record for a

party to the proceeding, or otherwise with the approval of the

court. All attorneys who were members in good standing of the bar

of the United States Court of Claims are eligible to practice

herein. See RCFC 83.1(c)(2) concerning authorization to sign

filings.

(b) Admission to Practice.

(1) Qualifications; Oath. Any person of good moral character

who has been admitted to practice before the Supreme Court of the

United States, the United States Court of Appeals for the Federal

Circuit, or the highest court of any state, territory,

possession, or the District of Columbia, and is in good standing

therein, may be admitted to practice before this court upon oral

motion or by verified application, as provided in this rule, and

upon taking or subscribing to the following oath: I, ________, do

solemnly swear (or affirm) that I will support the Constitution

of the United States and that I will conduct myself in an upright

manner as an attorney of this court.

(2) Upon Oral Motion.

(A) In Washington, D.C. An oral motion for admission may be

made by a member of the bar of this court before any judge, and

the judge or the clerk shall administer the oath. Motions for

admission will be heard the first Thursday of each month which

is not a legal holiday as defined by RCFC 6(a). Where the first

Thursday of the month falls on a legal holiday, admissions will

be held on the second Thursday of the month. Applicants for

admission must appear in the clerk's office no later than 9:30

a.m. to pay the admission fee and fill out the necessary

papers. Motions will be heard promptly at 10:00 a.m., in

Courtroom No. 4, Room 501, National Courts Building, 717

Madison Place, N.W., Washington, D.C. 20005. Applicants who for

special reasons are unable to appear for admission on the first

Thursday of the month should contact the Office of the Clerk to

make appropriate arrangements.

(B) Outside Washington, D.C. An oral motion for admission may

be made by a member of the bar of this court before a judge

outside Washington, D.C., who shall administer the oath. As a

preliminary to the motion, the attorney who moves the admission

shall submit to the judge the appropriate form obtained from

the judge and completed by the applicant. In the absence of an

oral motion for admission in conformity with this subdivision,

the applicant may advise the judge of the applicant's

qualifications as set forth in subdivision (b)(1). Upon

consideration thereof, and upon representation by the attorney

that such attorney will promptly apply to the clerk for

admission by verified application as provided in subdivision

(b)(3), the judge may permit the applicant to participate in

the particular proceeding.

(3) By Verified Application. Without need for appearing in

person, admission may be made upon presentation to the clerk of a

verified application showing that the applicant is possessed of

the qualifications described in subdivision (b)(1). See Appendix

of Forms, Form 1. The application shall be accompanied by: (A) a

certificate of a judge or of the clerk of any of the courts

specified in subdivision (b)(1) indicating that the applicant is

a member of the bar of such court and is in good standing

therein; (B) two letters or signed statements of members of the

bar of this court or of the Supreme Court of the United States,

not related to the applicant, affirming that the applicant is

personally known to them, that the applicant possesses all the

qualifications required for admission to the bar of this court,

that they have examined the application, and that the applicant's

personal and professional character and standing are good; and

(C) an oath in the form prescribed in subdivision (b)(1) signed

by the applicant and administered by an officer authorized to

administer oaths in the state, territory, possession, or the

District of Columbia, where the oath is administered, or as

permitted by 28 U.S.C. Sec. 1746.

(4) Fee for Admission. Unless the applicant is an attorney

representing the United States before this court, an admission

fee as provided for in RCFC 77.1 (c)(2) shall be paid in advance

in cash or by check payable to "Clerk, United States Court of

Federal Claims."

(5) Admission of Foreign Attorneys. An attorney, barrister, or

advocate who is qualified to practice in the highest court of any

foreign state may be specially admitted for purposes limited to a

particular case. Such attorney, barrister or advocate shall not,

however, be authorized to act as attorney of record. In the case

of such applicants, the oath shall not be required and there

shall be no fee. Such admission shall be only on written motion

of a member of the bar of this court, filed with the clerk at

least 3 days prior to the consideration of the motion by the

court.

(c) Attorneys of Record.

(1) One for Each Party. There shall be but one attorney of

record for a party in any case at any one time, and such attorney

of record shall be an individual (and not a firm) who has been

admitted to practice before this court. Any other attorneys

assisting the attorney of record shall be designated as "of

counsel."

(2) Authorization to Sign Filings. Any attorney who is a member

of the bar of this court may sign any filing in the attorney of

record's name. An attorney who signs the name of the attorney of

record shall so indicate by adding the following after the name

of the attorney of record: "by [the signing attorney's full

name]." Authorization to sign filings shall not relieve the

attorney of record from the provisions of RCFC 11.

(3) Appearance. For parties other than the United States, the

attorney of record shall include on the initial pleading or paper

said attorney's name, address, telephone, and facsimile number.

For the United States the attorney who is to appear as the

attorney of record shall, promptly after service of the

complaint, file with the clerk and serve on all other parties a

notice of appearance setting forth the identical information. The

attorneys of record for all parties shall promptly file with the

clerk and serve on all other parties a notice of any change in

address.

(4) Change by Parties Other than the United States. A party

other than the United States may by leave of court on motion

change the party's attorney at any time. The motion may be signed

by said party in person or by the newly designated attorney

accompanied by an affidavit of appointment executed by such

attorney. If the consent of the previous attorney of record is

annexed to or endorsed on the motion, substitution shall be

accomplished by an appropriate entry on the docket by the clerk.

When the motion is not thus shown to have the consent of the

previous attorney, such attorney shall be served with the motion,

and shall have 14 days to show cause why the motion should not be

allowed.

(5) Change by the United States. A new notice of appearance

shall be filed and served on all parties by the United States

whenever a case is reassigned to another attorney.

(6) Withdrawal of Attorney. No attorney of record for a

plaintiff or a third party may withdraw such attorney's

appearance except by leave of the court on motion and after

notice is served on such attorney's client.

(7) Death of Attorney. If the attorney of record dies, a

suggestion of such attorney's death shall be made, and a motion

to substitute another attorney admitted to practice before this

court may be made by the plaintiff.

(8) Unrepresented Party. An individual may represent oneself or

a member of one's immediate family as a party before the court.

Any other party, however, must be represented by an attorney who

is admitted to practice in this court. A corporation may only be

represented by counsel. The terms counsel or attorney in these

rules shall include unrepresented parties.

(d) Honorary Membership. Honorary membership in the bar of the

court may be granted from time to time to distinguished

professionals of the United States or of other nations who are

knowledgeable in the affairs of law and government in their

respective countries. After nomination by the chief judge and

approval by the court, the candidate for honorary membership will

be presented at the bar in person. A certificate of honorary

membership in the bar will be presented to the person so honored.

-MISC1-

RULES COMMITTEE NOTE

This rule has no FRCP counterpart. Former RCFC 83.1 ("Content of

Briefs or Memoranda; Length of Briefs or Memoranda") has been

renumbered as RCFC 5.2. The renumbering of RCFC 83.1 was intended

to reflect its more logical placement in the organizational

structure of this court's rules.

The substance of the rule reflects the text of former RCFC 81, as

modified. Paragraph (2) of subdivision (c) (formerly paragraph

(d)(2) of RCFC 81) was amended to formalize the court's practice of

allowing joint filings to be signed by one counsel, on behalf of

both counsel, when authorized to do so by opposing counsel. Also,

subdivision (e) of former RCFC 81 (relating to attorneys' fees and

expenses) was not retained as part of this rule but was, instead,

incorporated into RCFC 54(d)(2).

In addition, former General Order No. 15, "Honorary Bar

Membership," was slightly modified and moved to new subdivision

83.1(d).

-End-

-CITE-

28 USC APPENDIX Rule 83.2 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

XI. GENERAL PROVISIONS

-HEAD-

Rule 83.2. Rules of Disciplinary Enforcement.

-STATUTE-

The United States Court of Federal Claims, in furtherance of its

inherent power and responsibility to supervise the conduct of

attorneys who are admitted to practice before it, or admitted for

the purpose of a particular proceeding pursuant to RCFC 83.1(a) and

(b)(5), promulgates the following Rules of Disciplinary Enforcement

superseding all of its other rules pertaining to disciplinary

enforcement heretofore promulgated.

(a) Attorneys Convicted of Crimes.

(1) Upon the filing with the court of a certified copy of a

judgment of conviction demonstrating that any attorney admitted

to practice before the court has been convicted in any court of

the United States, or the District of Columbia, or of any state,

territory, commonwealth or possession of the United States of a

serious crime as hereinafter defined, the court shall enter an

order immediately suspending that attorney, whether the

conviction resulted from a plea of guilty or nolo contendere or

from a verdict after trial or otherwise, and regardless of the

pendency of any appeal, until final disposition of a disciplinary

proceeding to be commenced upon such conviction. A copy of such

order shall immediately be served upon the attorney. Upon good

cause shown, the court may set aside such order when it appears

in the interest of justice so to do.

(2) The term serious crime shall include any felony and any

lesser crime a necessary element of which, as determined by the

statutory or common law definition of such crime in the

jurisdiction where the judgment was entered, involves false

swearing, misrepresentation, fraud, willful failure to file

income tax returns, deceit, bribery, extortion, misappropriation,

theft, or an attempt or a conspiracy or solicitation of another

to commit a serious crime.

(3) A certified copy of a judgment of conviction of an attorney

for any crime shall be conclusive evidence of the commission of

that crime in any disciplinary proceeding instituted against that

attorney based upon the conviction.

(4) Upon the filing of a certified copy of a judgment of

conviction of an attorney for a serious crime, the court shall,

in addition to suspending that attorney in accordance with the

provisions of this rule, refer the matter to counsel for the

institution of a disciplinary proceeding before the court in

which the sole issue to be determined shall be the extent of the

final discipline to be imposed as a result of the conduct

resulting in the conviction, provided that a disciplinary

proceeding so instituted will not be brought to final hearing

until all appeals from the conviction are concluded.

(5) Upon the filing of a certified copy of a judgment of

conviction of an attorney for a crime not constituting a serious

crime, the court may refer the matter to counsel for whatever

action counsel may deem warranted, including the institution of a

disciplinary proceeding before the court; provided, however, that

the court may in its discretion make no reference with respect to

convictions for minor offenses.

(6) An attorney suspended under the provisions of this rule

will be reinstated immediately upon the filing of a certificate

demonstrating that the underlying conviction of a serious crime

has been reversed, but the reinstatement will not terminate any

disciplinary proceeding then pending against the attorney, the

disposition of which shall be determined by the court on the

basis of all available evidence pertaining to both guilt and the

extent of discipline to be imposed.

(b) Discipline Imposed by Other Courts; Disbarment on Consent or

Representation in Other Courts.

(1) Any attorney admitted to practice before the court shall,

upon being subjected to public discipline by any other court of

the United States or District of Columbia, or by a court of any

state, territory, commonwealth or possession of the United

States, promptly inform the clerk of such action.

(2) Any attorney admitted to practice before the court shall,

upon being disbarred on consent or resigning from the bar of any

other court of the United States or the District of Columbia, or

from the bar of any state, territory, commonwealth, or possession

of the United States while an investigation into allegations of

misconduct is pending, promptly inform the clerk of such

disbarment on consent or resignation.

(3) Upon the filing of a certified copy of a judgment or order

demonstrating that an attorney admitted to practice before the

court has been disciplined by another court or upon accepting

disbarment on consent or resignation, the court shall forthwith

issue a notice directed to the attorney containing: a copy of the

judgment or order from the other court or a copy of the

communication indicating disbarment on consent or resignation;

and an order to show cause directing that the attorney inform the

court within 30 days after service of that order upon the

attorney, personally or by mail of any claim by the attorney

predicated upon the grounds set forth in paragraph (5), and that

the imposition of the identical discipline by the court would be

unwarranted and the reasons therefor.

(4) In the event the discipline imposed in the other

jurisdiction has been stayed there, any reciprocal discipline

imposed in the court shall be deferred until such stay expires.

(5) Upon the expiration of 30 days from service of the notice

issued pursuant to the provisions of paragraph (3), the court

shall impose the identical discipline unless the

respondent-attorney demonstrates, or the court finds, that upon

the face of the record upon which the discipline in another

jurisdiction is predicated it clearly appears:

(A) that the procedure was so lacking in notice or

opportunity to be heard as to constitute a deprivation of due

process;

(B) or that there was such an infirmity of proof establishing

the misconduct as to give rise to the clear conviction that the

court could not, consistent with its duty, accept as final the

conclusion on that subject;

(C) or that the imposition of the same discipline by the

court would result in grave injustice;

(D) or that the misconduct established is deemed by the court

to warrant substantially different discipline.

Where the court determines that any of said elements exist, it

shall enter such other order as it deems appropriate.

(6) In all other respects, a final adjudication in another

court that an attorney has been guilty of misconduct shall

establish conclusively the misconduct for purposes of a

disciplinary proceeding in the court.

(7) The court may at any stage appoint counsel to prosecute the

disciplinary proceedings.

(c) Standards for Professional Conduct.

(1) For misconduct defined in this rule and after notice and

opportunity to be heard, any attorney admitted to practice before

the court may be disbarred, suspended from practice before the

court, publicly reprimanded, or subjected to such other

disciplinary action as the circumstances may warrant.

(2) Acts or omissions by an attorney admitted to practice

before the court, individually or in concert with any other

person or persons, which violate the Code of Professional

Responsibility adopted by the court shall constitute misconduct

and shall be grounds for discipline, whether or not the act or

omission occurred in the course of an attorney-client

relationship. The Code of Professional Responsibility adopted by

the court is the American Bar Association Model Rules of

Professional Conduct, as amended from time to time by the

Association, except as otherwise provided by specific rule of the

court.

(d) Disciplinary Proceedings

(1) When misconduct or allegations of misconduct which, if

substantiated, would warrant discipline on the part of an

attorney admitted to practice before the court shall come to the

attention of a judge or special master of the court, whether by

complaint or otherwise, and the applicable procedure is not

otherwise mandated by this rule, the judge or special master

shall refer the matter to the chief judge for determination

whether the matter should be referred to a disciplinary judge for

a formal disciplinary proceeding or the formulation of such other

recommendation as may be appropriate.

(2) Should the disciplinary judge conclude after review that a

formal disciplinary proceeding should not be initiated against

the respondent-attorney because sufficient evidence is not

present, or because there is pending another proceeding against

the respondent-attorney the disposition of which in the judgment

of the disciplinary judge should be awaited before further action

by the court is considered or for any other valid reason, the

disciplinary judge shall file with the court a recommendation for

disposition of the matter, whether by dismissal, admonition,

deferral, or otherwise setting forth the reasons therefor.

(3) To initiate formal disciplinary proceedings, the

disciplinary judge shall file an order of the court upon a

showing of probable cause requiring the respondent-attorney to

show cause within 30 days after service of that order upon that

attorney, personally, or by mail, why the attorney should not be

disciplined.

(4) Upon the respondent-attorney's answer to the order to show

cause, if any issue of fact is raised or the respondent-attorney

wishes to be heard in mitigation, the disciplinary judge shall

set the matter for prompt hearing.

(e) Disbarment on Consent While Under Disciplinary Investigation

or Prosecution

(1) Any attorney admitted to practice before the court who is

the subject of an investigation into or a pending proceeding

involving allegations of misconduct may consent to disbarment,

but only by delivering to the court an affidavit stating that the

attorney desires to consent to disbarment and that:

(A) the attorney's consent is freely and voluntarily

rendered; the attorney is not being subjected to coercion or

duress; the attorney is fully aware of the implications of so

consenting;

(B) the attorney is aware that there is a presently pending

investigation or proceeding involving allegations that there

exist grounds for the attorney's discipline the nature of which

the attorney shall specifically set forth;

(C) the attorney acknowledges that the material facts so

alleged are true; and

(D) the attorney so consents because the attorney knows that

if charges were predicated upon the matters under

investigation, or if the proceeding were prosecuted, the

attorney could not successfully defend himself.

(2) Upon receipt of the required affidavit, the court shall

enter an order disbarring the attorney.

(3) The order disbarring the attorney on consent shall be a

matter of public record. However, the affidavit required under

the provisions of this rule shall not be publicly disclosed or

made available for use in any other proceeding except upon order

of the court.

(f) Reinstatement.

(1) After Disbarment or Suspension. An attorney suspended for

three months or less shall be automatically reinstated at the end

of the period of suspension upon the filing with the court of an

affidavit of compliance with the provisions of the order. An

attorney suspended for more than three months or disbarred may

not resume practice until reinstated by order of the court,

except as provided in subdivision (a) of this rule.

(2) Time of Application Following Disbarment. A person who has

been disbarred after hearing or by consent may not apply for

reinstatement until the expiration of at least one year from the

effective day of the disbarment.

(3) Hearing on Application. Petitions for reinstatement by a

disbarred or suspended attorney under this rule shall be filed

with the Clerk, and directed to the chief judge of the court.

Such petitions shall demonstrate by clear and convincing evidence

that the petitioner has the moral qualifications, competency and

learning in the law before the court and that the petitioner's

resumption to the practice of law will not be detrimental to the

integrity and standing of the bar or to the administration of

justice, or subversive of the public interest. Upon receipt of

the petition, the chief judge shall promptly assign the petition

to one or more judges of the court for prompt action. The judge

or judges assigned to the matter shall within 30 days after

referral issue an order of reinstatement based upon the petition

or, schedule a hearing at which the petitioner shall have the

burden of demonstrating the elements listed above.

(4) Deposit for Costs of Proceeding. The court may direct that

petitions for reinstatement under this rule shall be accompanied

by an advance cost deposit in an amount to be set from time to

time by the court to cover anticipated costs of the reinstatement

proceeding.

(5) Conditions of Reinstatement. If the petitioner is found

unfit to resume the practice of law, the petition shall be

dismissed. If the petitioner is found fit to resume the practice

of law, the judgment shall reinstate the petitioner, provided

that the judgment may make reinstatement conditional upon the

payment of all or part of the costs of the proceedings, and upon

the making of partial or complete restitution to parties harmed

by the petitioner whose conduct led to the suspension or

disbarment. Provided further, that if the petitioner has been

suspended or disbarred for 5 years or more, reinstatement may be

conditioned, in the discretion of the judge or judges before whom

the matter is heard, upon the furnishing of proof of competency

and learning in law, which proof may include certification by the

bar examiners of a state or other jurisdiction of the attorney's

successful completion of an examination for admission to practice

subsequent to the date of suspension or disbarment.

(6) Successive Petitions. No petition for reinstatement under

this Appendix shall be filed within one year following an adverse

judgment upon a petition for reinstatement filed by or on behalf

of the same person.

(g) Attorneys Specially Admitted.

Whenever an attorney applies to be admitted or is admitted to the

court for purposes of a particular proceeding pursuant to RCFC

83.1(a) or(b)(5), the attorney shall be deemed thereby to have

conferred disciplinary jurisdiction upon the court for any alleged

misconduct of that attorney arising in the course of or in the

preparation for such proceeding.

(h) Service of Papers and Other Notices.

(1) Service of an order to show cause instituting a formal

disciplinary proceeding shall be made by personal service or by

registered or certified mail addressed to the respondent-attorney

at such attorney's last known address. If service by registered

or certified mail is ineffective, the court shall enter an order

as appropriate to effect service.

(2) Service of any other papers or notices required by this

rule shall be deemed to have been made if such paper or notice is

addressed to the respondent-attorney at such attorney's last

known address or the respondent-attorney at the address indicated

in the most recent pleading or other document filed in the course

of any proceeding.

(i) Appointment of Counsel.

The court may appoint as counsel one or more members of the bar

of the court to investigate allegations of misconduct or to

prosecute disciplinary proceedings under this rule, provided,

however, that the respondent-attorney may move to disqualify an

attorney so appointed who is or has been engaged as an adversary of

the respondent-attorney in any matter. Counsel, once appointed, may

not resign unless permission to do so is given by the court.

(j) Payment of Fees and Costs.

At the conclusion of any disciplinary investigation or

prosecution, if any, under this rule, counsel may make application

to the court for an order awarding reasonable fees and reimbursing

costs expended in the course of such disciplinary investigation or

prosecution. Any such order shall be submitted to the clerk who

shall pay the amount required thereunder from the funds collected

pursuant to subdivision (j).

(k) Duties of the Clerk.

(1) Upon being informed that an attorney admitted to practice

before the court has been convicted of any crime, the clerk shall

determine whether the clerk of the convicting court has forwarded

a certificate of such conviction to the court. If a certificate

has not been so forwarded, the clerk shall promptly obtain a

certificate and file it with the court.

(2) Upon being informed that an attorney admitted to practice

before the court has been subjected to discipline by another

court, the clerk shall determine whether a certified copy of the

disciplinary judgment or order has been filed with the court,

and, if not, the clerk shall promptly obtain a certified copy of

the disciplinary judgment or order and file it with the court.

(3) Whenever it appears that any person disbarred or suspended

or censured or disbarred on consent by the court is admitted to

practice law in any other jurisdiction or before any other court,

the clerk shall, within 10 days of that disbarment, suspension,

censure, or disbarment on consent, transmit to the disciplinary

authority in such other jurisdiction, or for such other court, a

certified copy of the order of disbarment, suspension, censure,

or disbarment on consent, as well as the last known office and

residence address of the defendant or respondent-attorney.

(4) The clerk shall notify the National Discipline Data Bank

operated by the American Bar Association of any order imposing

public discipline upon any attorney admitted to practice before

the court.

(5) The clerk shall utilize a portion of the fee for admission

required by RCFC 77.1(c) to defray the payment of fees and costs

under subdivision (i) of this rule and any other costs incurred

by the administration of this rule.

(g742l ) Jurisdiction.

Nothing contained in this rule shall be construed to deny to the

court such powers as are necessary for the court to maintain

control over proceedings conducted before it, such as proceedings

for contempt, issuance of public reprimands, or imposition of fines

of not more than $1,000.00.

-MISC1-

RULES COMMITTEE NOTE

Former RCFC 83.2 has been renumbered RCFC 7.1. New RCFC 83.2

formerly appeared in these rules as Appendix F. The incorporation

of former Appendix F into the main body of the court's rules

reflects a more logical placement of its subject matter in the

organizational structure of the court's rules.

-End-

-CITE-

28 USC APPENDIX Rule 83.3 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

XI. GENERAL PROVISIONS

-HEAD-

Rule 83.3. Legal Assistance by Law Students

-STATUTE-

(a) Appearance. Subject to the provisions of this rule, an

eligible law student may enter an appearance in this court on

behalf of any party provided the party on whose behalf the student

appears has consented thereto in writing and a "supervising

attorney," as defined in this rule, has also indicated approval of

that appearance in writing. In each case, the written consent and

approval shall be filed with the clerk.

(b) Activities.

(1) Appearance on Briefs and Other Written Pleadings,

Participation in Oral Argument and Other Activities. A law

student who has entered an appearance in a case pursuant to

paragraph (a) may:

(A) Appear on the brief(s) and other written pleadings,

provided the supervising attorney has read, approved, and

co-signed the brief(s);

(B) Participate in all proceedings ordered by a judge or

special master provided the supervising attorney is present at

such proceedings;

(C) Engage in all other activities on behalf of the client in

all ways that a licensed attorney may, subject to the general

direction of the supervising attorney. However, a student may

make no binding commitments on behalf of a client absent prior

approval of both the client and the supervising attorney. In

any matter in which testimony is taken, including depositions,

the student must be accompanied by the supervising attorney.

Documents or papers filed with the court must be read,

approved, and co-signed by the supervising attorney.

(2) Limitations on Activities. The court retains the authority

to establish exceptions to the activities in paragraph (1), and

also to limit a student's participation in any individual case.

(c) Eligibility. In order to be eligible to make an appearance

pursuant to this rule, the law student must:

(1) Be a law student in good standing, enrolled in a law school

approved by the American Bar Association;

(2) Have completed legal studies amounting to at least two

semesters, or the equivalent if the school is on some basis other

than a semester basis;

(3) Have knowledge of the Rules of the United States Court of

Federal Claims, the Federal Rules of Evidence, and the American

Bar Association Model Rules of Professional Conduct;

(4) Be enrolled for credit in a clinical program at an

accredited law school that maintains malpractice insurance for

its activities and conducts its activities under the direction of

a faculty member of such law school;

(5) Be certified by the dean of the law school as being of good

character and sufficient legal ability, and as being adequately

trained, in accordance with paragraphs (1)-(4) above, to fulfill

the responsibilities of a legal intern to both the client and the

court. Such certification must be filed with the clerk and may be

withdrawn at any time by the dean upon written notice to the

clerk;

(6) Be certified by the chief judge to practice pursuant to

this rule. This certification may be withdrawn at any time by the

chief judge or, in a given case, by the judge or special master

before whom the law student has entered an appearance, without

notice of hearing and without any showing of cause; and

(7) Neither ask for nor receive any fee or compensation of any

kind from the client on whose behalf service is rendered.

However, this rule shall not prevent a lawyer, legal aid bureau,

law school, or the Government from paying compensation to the

eligible law student, nor shall it prevent any of them from

making such charges for its services as may otherwise be proper,

nor shall it prevent any clinical program from receiving

otherwise proper fees and expenses under RCFC 54(d)(2).

(d) Supervising Attorneys. A supervising attorney referred to in

this rule shall be deemed the attorney of record pursuant to RCFC

83.1(c) and must:

(1) Be a member in good standing of the bar of this court;

(2) Be an attorney whose service as a supervising attorney for

the clinical program is approved by the dean of the law school in

which the law student is enrolled;

(3) Be certified by this court as a student supervisor;

(4) Assist and counsel the student in activities allowed under

this rule and review such activities with the student, all to the

extent appropriate under the circumstances, for the proper

practical training of the student and the protection of the

client;

(5) Assist the student in his or her preparation of the case to

the extent the supervising attorney considers necessary and be

available for consultation with represented clients;

(6) Be present with the student in any proceedings before a

judge or special master;

(7) Co-sign all pleadings and other documents filed with the

court;

(8) Be responsible to supplement oral or written work of the

student as necessary to ensure proper representation of the

client;

(9) Assume full professional responsibility for the student's

guidance in any work undertaken and for the quality of the

student's work; and

(10) Agree to notify the dean of the appropriate law school of

any alleged failure on the part of the student to abide by the

letter and spirit of this rule.

-MISC1-

RULES COMMITTEE NOTE

RCFC 83.3 replaces former General Order No. 35, adopted on

September 3, 1993. The only changes are stylistic or to correct

cross-references.

-REFTEXT-

REFERENCES IN TEXT

The Federal Rules of Evidence, referred to in subd. (c)(3), are

set out in this Appendix.

-End-

-CITE-

28 USC APPENDIX Rule 83.4 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

XI. GENERAL PROVISIONS

-HEAD-

Rule 83.4. Advisory Council

-STATUTE-

(a) Membership. The United States Court of Federal Claims

Advisory Council is established to advise the court on matters

pertaining to the administration of the court and its relationship

to the bar and the public. The Council shall consist of no fewer

than 20 members of the bar of the court and shall include

representatives of all of the court's practice areas. Members shall

serve three year terms. The chief judge shall fill any vacancies.

The chief judge shall designate one or more of the judges as a

liaison member between the court and the Council.

(b) Organization. The Council shall meet at such times and places

as agreed upon by the members. All members of the Council,

including the chief judge and the court's liaison member[s], may

attend meetings and participate in discussions. The chief judge

shall designate a chairperson. The council members may designate

other officers, and committees and take all other steps appropriate

to the conduct of the council's business. Each member, except the

liaison member[s], shall be entitled to vote on matters before the

Council. The chief judge shall provide facilities at the court to

accommodate meetings of the Council.

(c) Function. The Council may consider any matters its members

deem relevant to the operation of the court. The Council may

transmit its recommendations to the court informally or formally by

letter to the chief judge. The Council shall promptly consider and

make a recommendation on any matter referred to it by the court.

The court may consider any recommendation of the Council and take

such action as it deems appropriate.

-MISC1-

RULES COMMITTEE NOTE

New RCFC 83.4 replaces General Order No. 7, which established the

Advisory Council on April 5, 1983. In addition to minor stylistic

and formatting changes, the new rule changes the number of members

allowed on the Council and makes the chief judge responsible for

designating the chairperson.

-End-

-CITE-

28 USC APPENDIX Rule 84 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

XI. GENERAL PROVISIONS

-HEAD-

Rule 84. Forms

-STATUTE-

Forms referenced in these rules are set forth in the Appendix of

Forms.

-End-

-CITE-

28 USC APPENDIX Rule 85 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

XI. GENERAL PROVISIONS

-HEAD-

Rule 85. Title

-STATUTE-

These rules may be known and cited as the Rules of the United

States Court of Federal Claims.

-MISC1-

RULES COMMITTEE NOTE

The rule has been changed to reflect the change in the court's

name. These rules may be cited as "RCFC."

-End-

-CITE-

28 USC APPENDIX Rule 86 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

XI. GENERAL PROVISIONS

-HEAD-

Rule 86. Effective Date

-STATUTE-

These rules as revised are effective on May 1, 2002. They govern

all proceedings in actions brought after they take effect and also

all further proceedings in actions then pending, except to the

extent that in the opinion of the court their application in a

particular action pending when the rules take effect would not be

feasible or would work injustice, in which event the former

procedure applies.

-MISC1-

RULES COMMITTEE NOTE

The rule reflects the effective date of the most recent revisions

to the court's rules. In addition, the rule adopts the practice of

the federal civil rules to presume application of rule changes to

pending cases.

Future revisions to these rules will be posted on the court's

website at www.uscfc.uscourts.gov.

-End-

-CITE-

28 USC APPENDIX App. A 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

APPENDIX A

-HEAD-

App. A

-MISC1-

APPENDIX A

CASE MANAGEMENT PROCEDURE

I. PURPOSE

1. These case management procedures are intended to promote

cooperation among counsel, assist in the early identification of

issues, minimize the cost and delay of litigation and enhance the

potential for settlement. (As used in this appendix, "counsel"

shall be construed to include unrepresented parties.)

2. Uniformity of practice within the court also is an important

goal of these procedures. For the purpose of promoting the

efficient administration of justice, a judge may modify these

procedures as appropriate, or the parties may suggest the

modification of these procedures to meet the needs of a particular

case.

II. EARLY MEETING OF COUNSEL

3. Subsequent to the filing of defendant's answer or, if

applicable, a reply to a counterclaim, and, in any event, within

sufficient time to permit the parties to file a Joint Preliminary

Status Report in accordance with paragraph 4, plaintiff's counsel

shall communicate with defense counsel, and counsel shall confer:

(a) To initiate preparation of the Joint Preliminary Status

Report pursuant to paragraphs 4-6.

(b) To identify each party's factual and legal contentions.

(c) To discuss each party's discovery needs and discovery

schedule, including the initial disclosures required by RCFC

26(a)(1) and additional documents that are to be the subject of

discovery, e.g., determine what is needed; the objections, if

any, to supplying it; and where it is available, with follow-up

letters to provide a record. Informal discovery is encouraged.

The parties are encouraged to cooperate in the conduct of

discovery and to make additional voluntary disclosures through

informal discovery.

(d) To discuss the expected means of resolving the dispute,

i.e., whether by trial or dispositive motion.

(e) To discuss settlement of the action, including use of

alternative dispute resolution. See Appendix H.

Participating counsel shall be counsel of record and such other

attorneys as necessary so that participating counsel for each party

are knowledgeable about the case and the identity of witnesses and

location of documents.

III. JOINT PRELIMINARY STATUS REPORT

4. No later than 49 days after defendant's answer or plaintiff's

reply to a counterclaim is served, the parties shall file with the

clerk a Joint Preliminary Status Report signed by both parties,

setting forth answers to the following questions. Separate views

may be set forth on any point on which parties cannot agree.

(a) Does the court have jurisdiction over the action?

(b) Should the case be consolidated with any other case and the

reasons therefor?

(c) Should trial of liability and damages be bifurcated and the

reasons therefor?

(d) Should further proceedings in this case be deferred pending

consideration of another case before this court or any other

tribunal and the reasons therefor?

(e) In cases other than tax refund actions, will a remand or

suspension be sought and the reasons therefor and the proposed

duration?

(f) Will additional parties be joined and, if so, a statement

describing such parties, their relationship to the case, and the

efforts to effect joinder and the schedule proposed to effect

joinder?

(g) Does either party intend to file a motion pursuant to RCFC

12(b), 12(c) or 56 and, if so, a schedule for the intended

filing?

(h) What are the relevant factual and legal issues?

(i) What is the likelihood of settlement? Is alternative

dispute resolution contemplated?

(j) Do the parties anticipate proceeding to trial? Does any

party, or do the parties jointly, request expedited trial

scheduling and, if so, the reasons why the case is appropriate

therefor? A request for expedited trial scheduling is generally

appropriate when the parties anticipate that discovery, if any,

can be completed within a 90-day period, the case may be tried

within 3 days, no dispositive motion is anticipated, and a bench

ruling is sought. The requested place of trial shall be stated.

Before such a request is made, the parties shall confer

specifically on this subject.

(k) Are there special issues regarding electronic case

management needs?

(g742l ) Is there other information of which the court should

be aware at this time?

5. If discovery is required, the Joint Preliminary Status Report

should set forth a proposed discovery plan, including proposed

deadlines. The parties should propose a deadline for fact

discovery, for the disclosure of any experts' reports, and for

depositions or other discovery of experts. See RCFC 26(a)(2)

concerning disclosure of experts and discovery planning.

6. Unless otherwise ordered, the Joint Preliminary Status Report

shall be deferred indefinitely if on or before the date the Joint

Preliminary Status Report is due a dispositive motion addressing

all issues is filed.

IV. PRELIMINARY SCHEDULING CONFERENCE AND SCHEDULING ORDER

7. Preliminary Scheduling Conference. After the filing of the

Joint Preliminary Status Report the judge will ordinarily conduct

the preliminary scheduling conference contemplated by RCFC 16(b) to

acquaint the court with the issues in the case, to discuss any

special problems that may exist, and to establish a schedule for

further proceedings. In the interest of justice and judicial

economy, a Preliminary Scheduling Conference will not be scheduled

if, in the court's discretion, further discussion of the matters

presented in the Joint Preliminary Status Report would not be

useful.

8. Scheduling Order. After the preliminary scheduling conference

or, if none is held, after the filing of the Joint Preliminary

Status Report, the judge shall promptly enter the scheduling order

called for by RCFC 16(b).

V. DISCOVERY

9. Interrogatories, Requests for Admission, Responses. A party

shall number interrogatories and requests for admission

sequentially without repeating the numbers it has used in any prior

set of interrogatories or requests for admission. By counsel's

signature to the answers and pursuant to RCFC 11, counsel for the

responding party shall certify that counsel has made diligent

effort to provide answers to all portions of interrogatories or

requests for admission not specifically objected to.

10. Discovery Motions. A motion to compel or protect from

discovery shall contain a statement that the movant has in good

faith conferred or attempted to confer to resolve the matters in

dispute.

VI. POST-DISCOVERY PROCEEDINGS

11. Post-Discovery Conference. Upon completion of all discovery

(including discovery of any experts), the court will hold a

post-discovery conference to determine how the case will proceed.

The attorneys appearing at the post-discovery conference shall be

the attorneys who are expected to try the case and are thoroughly

familiar with it. At the conference, counsel will be called upon to

(i) address the factual and legal issues in dispute, (ii) discuss

the evidence and decisional law that each side offers in support of

its position, and (iii) identify the best means of resolving the

dispute, i.e., whether by summary judgment, trial, or by an

alternative method of dispute resolution.

12. Scheduling Order. See generally RCFC 16 and 56. Promptly

after the post-discovery conference, the judge shall enter a

scheduling order to address further proceedings. For cases that

will proceed by summary judgment in accordance with RCFC 56, the

order shall establish a schedule for the filing of summary judgment

motions and briefs. For cases to be resolved by trial, the order

may set (1) the time and place of trial, (2) the time and place of

the final pretrial conference and (3) the date by which the

memoranda and disclosures called for by paragraphs 14-18 are due.

13. Meeting of Counsel. For cases to be resolved by trial,

counsel for the parties shall meet no later than 63 days before the

pretrial conference and accomplish the following.

(a) Exhibits. Exchange a list of all exhibits (including

summaries, see Fed. R. Evid. 1006) to be used at trial for

case-in-chief or rebuttal purposes, except those to be used

exclusively for impeachment. Each exhibit on the list shall be

identified by an exhibit number and description. Unless

previously exchanged, counsel for the parties shall exchange a

copy of each exhibit listed. In the case of exhibits to be

offered as summaries under Fed. R. Evid. 1006, the offering party

shall provide opposing counsel with a statement with respect to

each summary exhibit describing the source(s) for the items or

figures listed (e.g., ledgers, journals, payrolls, invoices,

checks, time cards, etc.), the location(s) of the source(s), the

time when the source(s) may be examined or audited by the

opposing party, the name and address of the person(s) who

prepared each summary and who will be made available to the

opposing party during any examination or audit of the source

material to provide information and explanations necessary for

verification of the information in the summary. Failure to list

an exhibit shall result, absent agreement of the parties or a

showing of a compelling reason for the failure, in an exclusion

of the exhibit at trial. See also RCFC 26(a)(1), (2) and (3).

(b) Witnesses. Exchange a final list of names, addresses, and

telephone numbers of witnesses, including expert witnesses, who

may be called at trial for case-in-chief or rebuttal purposes,

except those to be used exclusively for impeachment. Failure of a

party to list a witness shall result, absent agreement of the

parties or a showing of a compelling reason for the failure, in

the exclusion of that witness' testimony at trial. Any witness

whose identity has not been previously disclosed shall be subject

to discovery. As to each witness, the party shall indicate the

specific topics to be addressed in the expected testimony.

(c) Confer:

(1) To disclose to opposing counsel the intention to file a

motion for leave to file transcript of deposition for

introduction at trial;

(2) To resolve, if possible, any objections to the admission

of testimony (including deposition testimony) or exhibits;

(3) To disclose to opposing counsel all contentions as to

applicable facts and law, unless previously disclosed;

(4) To engage in good-faith, diligent efforts to stipulate

and agree to facts about which the parties know, or have reason

to know, there can be no dispute for the purpose of simplifying

the issues at trial;

(5) To consider agreement to submitting the case to the court

for resolution (including any factual disputes) on the basis of

a submitted documentary record by the parties. See also RCFC

43(e); and

(6) To exhaust all possibilities of settlement.

14. Memorandum of Contentions of Fact and Law.

(a) Plaintiff's Memorandum. No later than 49 days before the

pretrial conference, plaintiff shall file a Memorandum of

Contentions of Fact and Law. The memorandum shall contain the

following:

(1) A full but concise statement of the facts plaintiff

expects to prove and a discussion of plaintiff's position with

respect to the facts on which defendant is expected to rely.

(2) A statement of the issues of fact and law to be resolved

by the court. The issues should be set forth in sufficient

detail to enable the court to resolve the case in its entirety

by addressing each of the issues listed.

(3) A discussion of the legal principles plaintiff contends

are applicable, as well as plaintiff's response to defendant's

anticipated legal position. Any objection to a witness or

exhibit listed under paragraph 13 shall be made in the

Memorandum of Contentions of Fact and Law, or in a separate

motion filed on the same date.

(4) If plaintiff believes that bifurcation of issues for

trial is appropriate, the memorandum shall contain a request

therefor, together with a statement of reasons.

(b) Defendant's Memorandum. No later than 21 days before the

pretrial conference, defendant shall file its responsive

memorandum with the same form and contents as plaintiff's.

(c) Responses. The parties will cooperate in the exchanges

specified in paragraph 13. Consequently, any responses to matters

expected to be raised by the opposing party should be included in

each party's Memorandum of Contentions of Fact and Law. However,

if anything new or unexpected is discovered, it may be addressed

in a brief response which must be filed under cover of motion for

leave immediately upon learning of it.

(d) Proposed Findings of Fact and Conclusions of Law. The judge

may, in lieu of the memoranda of contentions of fact and law,

order the filing of proposed findings of fact and conclusions of

law, including, at the judge's direction, annotations to the

exhibits or witnesses on which the party will rely to prove the

findings.

15. Witness List.

(a) Each party shall file, together with the Memorandum of

Contentions of Fact and Law, a separate statement setting forth a

list of witnesses to be called at trial for case-in-chief or

rebuttal purposes, except those to be used exclusively for

impeachment. The witness list shall separately identify those

whom the party expects to present and those whom the party may

call if the need arises. As to each witness, the party shall

indicate the specific topics to be addressed in the expected

testimony and the time needed for direct examination.

(b) Any party intending to present substantive evidence by way

of deposition testimony, other than as provided by Federal Rule

of Evidence 801(d), shall serve and file a separate motion for

leave to file the transcript of this testimony. The motion shall

show cause why the deposition testimony should be admitted and

identify specifically the portions of the transcript(s) the party

intends to use at trial. See RCFC 32(a)(2) & (3). If the motion

is granted, only those portions of the transcript may be filed.

16. Exhibit List. Each party shall file, together with the

Memorandum of Contentions of Fact and Law, a separate statement

setting forth a list of exhibits it expects to offer at trial for

case-in-chief or rebuttal purposes (including summaries to be

offered pursuant to Fed. R. Evid. 1006), other than those to be

used exclusively for impeachment. The exhibit list shall separately

identify those exhibits which the party expects to offer and those

which the party may offer if the need arises.

17. Stipulations. The parties are encouraged before or after the

pretrial conference to file a stipulation setting forth all matters

as to which they agree.

VII. OTHER MATTERS

18. Joint Exhibits. Prior to the final pretrial conference, the

parties should review the exhibit lists filed with the court and

consolidate as many exhibits as possible into a set of joint

exhibits for use at trial. All joint exhibits shall be identified

in a joint exhibit list that identifies each exhibit by a joint

exhibit number and description.

19. Post-Trial Briefing. The judge may order the filing of

post-trial briefs, which may include, at the judge's direction,

either a statement of facts or proposed findings of fact, together

with citations to the record. Post-trial briefing is not a matter

of right.

-MISC1-

RULES COMMITTEE NOTE

Appendix A represents the court's standard pretrial order. The

case management procedures contained in Appendix A reflect those

procedures which, in the collective experience of the court and the

members of its bar, are considered most beneficial in securing the

prompt and expeditious resolution of claims and disputes. Some

important changes have been introduced. Chief among these are

procedures calling for a preliminary scheduling conference to be

set following the filing of the Joint Preliminary Status Report,

and a post-discovery conference following the completion of

discovery. The expectation reflected in these conference procedures

is that early and ongoing involvement of the court during the

pretrial development of a case can contribute both to a prompt

identification of the issues and to a narrowing of the scope of the

dispute.

The promulgation of Appendix A as a synthesis of the views of the

bench and the bar is intended to encourage standardization in

pretrial practice procedures. Appendix A recognizes, however, that

the pretrial procedures to be followed in any particular case

ultimately depend upon the needs of that case. Hence, Appendix A

permits modifications of its procedures, either at a judge's

initiative (or at the parties' suggestion), when such modification

will promote "the efficient administration of justice."

-End-

-CITE-

28 USC APPENDIX App. B 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

APPENDIX B

-HEAD-

App. B

-MISC1-

APPENDIX B

VACCINE RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

I. SCOPE OF RULES; COMMENCEMENT OF PROCEEDINGS

Rule 1. Scope of Rules.

These rules govern all proceedings before the United States Court

of Federal Claims pursuant to the National Vaccine Injury

Compensation Program established by 42 U.S.C. Secs. 300aa-10 et

seq. (1994) (Vaccine Act). These rules govern both proceedings

before the Office of Special Masters, as well as any subsequent

proceedings before a judge of the Court of Federal Claims. These

rules are to be cited as the Vaccine Rules. In all matters not

specifically provided for by the Vaccine Rules, the special master

or the court may regulate the applicable practice, consistent with

these rules and with the purpose of the Vaccine Act, to decide

cases promptly and efficiently. In proceedings before the Office of

Special Masters, the Rules of the United States Court of Federal

Claims (RCFC) apply only to the extent referenced in the Vaccine

Rules. In proceedings before a judge, the RCFC will apply except to

the extent that such rules are inconsistent with the Vaccine Rules.

Rule 2. Commencement of Proceedings.

(a) Petition. A proceeding for compensation under the Vaccine Act

shall be commenced by the filing of a petition, accompanied by the

documents required under 42 U.S.C. Sec. 300aa-11(c) and the Vaccine

Rules, in the United States Court of Federal Claims. Petitioner

shall forward an original and two copies of the petition, by mail

or other delivery, to

Clerk

United States Court of Federal Claims

717 Madison Place, N.W.

Washington, D.C. 20005

(b) Fee. The petition shall be accompanied by a $150 filing fee.

(c) Service upon Respondent.

(1) Petitioner shall serve one copy of the petition and

accompanying documents upon the Secretary of Health and Human

Services, by first class or certified mail, c/o Director, Bureau

of Health Professionals 5600 Fishers Lane Suite 8-05 Rockville,

Maryland 20857. An executed certificate of such service shall

accompany the petition filed with the clerk.

(2) The clerk shall serve one copy of the petition on the

Attorney General.

(d) Content of the Petition.

(1) The petition shall set forth a short and plain statement of

the grounds for an award of compensation. The petition shall set

forth to whom, when, and where the vaccine in question was

administered, and further shall describe specifically the alleged

injury. If an injury within the Vaccine Act's Vaccine Injury

Table, 42 U.S.C. Sec. 300aa-14(a), is claimed, the particular

injury shall be set forth. The petition shall also contain a

specific demand for relief to which petitioner asserts

entitlement or a statement that such demand will be deferred

pursuant to 42 U.S.C. Sec. 300aa-11(e).

(2) Only one petition may be filed with respect to each

administration of a vaccine.

(e) Documents Required with the Petition.

(1) As required by 42 U.S.C. Sec. 300aa-11(c), every petition

shall be accompanied by the following:

(A) Medical records and detailed affidavit(s) supporting all

elements of the allegations made in the petition. If

petitioner's claim does not rely on medical records alone, but

is based in any part on the observations or testimony of any

persons, the substance of each person's proposed testimony in

the form of an affidavit executed by the affiant must accompany

the petition.

(B) All available physician and hospital records relating to

(A) the vaccination itself; (B) the injury or death, including,

if applicable, any autopsy reports or death certificate; (C)

any post-vaccination treatment of the injured person including

all in-patient and out-patient records, provider notes, test

results, and medication records; and, if the vaccinee was

younger than five years old when vaccinated, (D) the mother's

pregnancy and delivery and the infant's lifetime, including

physicians' and nurses' notes and test results and all well

baby visit records, as well as growth charts, until the date of

vaccination.

(C) If any records required by the rules are not submitted,

an affidavit detailing the efforts made to obtain such records

and the reasons for their unavailability.

(2) If filed on behalf of a deceased person, or if filed by

someone other than the injured person or a parent of an injured

minor, the petition shall also be accompanied by documents

establishing the authority to file the petition in a

representative capacity or a statement explaining when such

documentation will be available.

(3) All documents accompanying the petition shall be assembled

into one or more bound volumes or three-ring notebooks. Each

bound volume or notebook must contain the caption of the case and

a table of contents, and all pages of all documents shall be

numbered consecutively.

II. PROCEEDINGS BEFORE THE SPECIAL MASTER

Rule 3. Role of Special Master - Generally.

(a) Assignment. Once a petition has been filed by the clerk, the

case shall be assigned by the chief special master to a special

master to conduct proceedings in accordance with the Vaccine Rules.

All proceedings prior to the issuance of the special master's

decision are to be conducted exclusively by the special master.

(b) Duties. The special master shall be responsible for

conducting all proceedings, including requiring such evidence as

may be appropriate, in order to prepare a decision, including

findings of fact and conclusions of law, determining whether an

award of compensation should be made under the Vaccine Act and the

amount of any such award. The special master shall determine the

nature of the proceedings, with the goal of making the proceedings

expeditious, flexible, and less adversarial, while at the same time

affording each party a full and fair opportunity to present its

case and creating a record sufficient to allow review of the

special master's decision.

(c) Absence; Reassignment. In the absence of the special master

to whom a case is assigned, the chief special master may act on

behalf of the assigned special master, or designate another special

master to act. When necessary for the efficient administration of

justice, the chief special master may reassign a case to another

special master.

Rule 4. Respondent's Review and Report.

(a) Respondent's Review of Completeness of the Records. Within 30

days of the filing of a petition, respondent shall review the

medical and other records to determine whether, in respondent's

view, all records necessary to enable respondent to evaluate the

merits of the claim have been supplied with the petition. If

respondent considers that relevant records are missing,

respondent's counsel shall immediately notify petitioner's counsel

regarding the perceived omissions. If the parties disagree about

the completeness of the records filed or the relevance of requested

records, either party may request that the special master resolve

the matter. If the special master concludes that records called for

by Vaccine Rule 2(e) have not been submitted, the petition may be

subject to dismissal, without prejudice, under Vaccine Rule 21(c).

(b) Respondent's Report. Within 90 days after the filing of the

petition, respondent shall file a report that shall set forth a

full and complete statement of respondent's position as to why an

award should or should not be granted. The report shall contain

respondent's medical analysis of petitioner's claims. It shall also

present any legal arguments that respondent may have in opposition

to the petition. General denials are not sufficient.

Rule 5. Informal Review and Tentative Findings and Conclusions.

The special master shall schedule an off-the-record conference to

be held within 30 days of the filing of respondent's report

pursuant to Vaccine Rule 4(b). At this conference, after affording

the parties an opportunity to address each other's positions, the

special master will review the materials submitted, evaluate the

respective positions, and orally present tentative findings and

conclusions. At the conclusion of this conference, the special

master may issue a scheduling order outlining the necessary

proceedings for resolving the issues presented in the case.

Rule 6. Status Conferences.

The special master shall conduct conferences from time to time in

order to expedite the processing of the case. The conferences will

be informal in nature and ordinarily will be conducted by telephone

conference call. Either party may request a status conference at

any time. At such conferences, counsel for both parties will have

the opportunity to propose procedures by which to process the case

in the least adversarial, most efficient way possible.

Rule 7. Discovery.

There shall be no discovery as a matter of right.

(a) Informal Discovery Preferred. The informal and cooperative

exchange of information is the ordinary and preferred practice.

(b) Formal Discovery. If a party considers that informal

discovery is not sufficient, that party may seek to utilize the

discovery procedures provided by RCFC 26-37 by filing a motion

indicating the discovery sought and stating with particularity the

reasons therefor, including an explanation why informal techniques

have not been sufficient. Such a motion may also be made orally at

a status conference.

(c) Subpoena. When necessary, the special master upon request by

a party may approve the issuance of a subpoena. In so doing, the

procedures of RCFC 45 shall apply. See RCFC Appendix of Forms (Form

7A).

Rule 8. Taking of Evidence and Argument; Decision.

(a) General. The special master in each case, based on the

specific circumstances thereof, shall determine the format for

taking evidence and hearing argument. The particular format for

each case will be ordered after consultation with the parties.

(b) Hearing. When necessary, the special master may conduct an

evidentiary hearing. The special master will determine the format

for such a hearing. The special master may permit direct

examination of a witness or may permit or require that the direct

testimony be submitted in written form. The special master may

question a witness and may, on request, permit questioning by

opposing counsel. Upon order by the special master, the clerk or

counsel may issue a subpoena requiring the attendance of a witness

at such hearing. A transcript of the hearing shall be prepared in

conformity with RCFC 80.1 and RCFC Appendix of Forms (Forms 3A and

3B).

(c) Evidence. In receiving evidence, the special master will not

be bound by common law or statutory rules of evidence. The special

master will consider all relevant, reliable evidence, governed by

principles of fundamental fairness to both parties. Evidence may be

taken in the form of documents, affidavits, or oral testimony,

which may be given in person or via telephone, videoconference, or

videotape. Sworn written testimony may be submitted in lieu of oral

testimony.

(d) Decision Without Evidentiary Hearing. The special master may

decide a case on the basis of written filings without an

evidentiary hearing. In addition, the special master may decide a

case on summary judgment, adopting procedures set forth in RCFC 56

modified to the needs of the case.

(e) Argument. Argument may be received by telephone conference

call or at a hearing or in written submissions. The special master

may establish requirements for such filings, e.g., contents or page

limitations, as appropriate.

(f) Waiver of Argument. Any fact or argument not raised

specifically in the record before the special master shall be

considered waived and cannot be raised by either party in

proceedings on review of a special master's decision. This rule

shall not apply to legal arguments raised by the party that stands

in the role of the appellee on review.

Rule 9. Suspension of Proceedings.

(a) General. On the motion of a party, for good cause shown, the

special master may suspend proceedings on the petition. The special

master shall grant one such suspension for 30 days on the motion of

either party. Further motions by either party for suspension may be

granted, totaling not more than 150 additional days, in the special

master's discretion.

(b) Effect. Such periods of suspension shall be excluded for

purposes of the time limitations of 42 U.S.C. Sec. 300aa-12(d)(3)

and Vaccine Rules 4(b) and 10.

Rule 10. Special Master's Decision.

(a) General. The special master shall issue a final decision

determining whether or not an award of compensation shall be made

and, if so, the amount thereof. This decision shall be filed within

240 days of the date on which the petition was filed, exclusive of

periods of suspension pursuant to Vaccine Rule 9.

(b) Certain Retrospective Cases. In cases in which the

vaccination in question occurred prior to October 1, 1988, and in

which the vaccine recipient is not deceased, the special master

shall defer ruling on the limited issue of the amount of any

compensation for lost earnings and pain and suffering, 42 U.S.C.

Sec. 300aa-15(a)(3) and (4), and combine that ruling with the

decision under Vaccine Rule 13.

(c) Reconsideration. Within 21 days of the issuance of the

special master's decision, if neither a judgment nor a motion for

review of the special master's decision has yet been filed, either

party may file a motion for reconsideration of the special master's

decision. The special master may seek the non-moving party's

response to such a motion, determining the method of and time

schedule for any such response. The special master will not rule in

favor of such a motion without first requesting a response to it.

The special master shall have discretion to grant or deny such

motion, in the interest of justice.

(1) If granted. If the special master elects to grant the

motion for reconsideration, the special master shall do so by

filing an order withdrawing the decision in question. The

withdrawn decision then becomes void for all purposes, and the

special master must subsequently enter a superseding decision. An

order withdrawing the decision may be filed only if neither a

judgment nor a motion for review has yet been filed.

(2) If not granted. The filing of a motion for reconsideration

will not negate the running of the 30-day period for filing a

motion for review of the special master's decision. If the

special master denies such a motion, or during any period in

which the special master has not yet acted upon such a motion,

the 30-day period for the filing of a motion for review of the

special master's decision shall continue to run and either side

may file a motion for review.

III. JUDGMENT AND FURTHER PROCEEDINGS

Rule 11. Judgment

(a) In the Absence of Motion for Review. In the absence of the

filing of a motion for review pursuant to Vaccine Rule 23 within 30

days of the filing of the special master's decision, or if prior to

the expiration of such period each party files a notice stating

that it will not seek such review, the clerk shall forthwith enter

judgment in accordance with the special master's decision.

(b) Stipulation for Judgment. Any stipulation for a money

judgment shall be signed by authorized representatives of the

Secretary of Health and Human Services and the Attorney General.

Rule 12. Election.

(a) General. When no motion for review of a decision pursuant to

Vaccine Rule 10 is filed by either party pursuant to Vaccine Rule

23, petitioner shall, within 90 days after the entry of judgment,

file with the clerk an election in writing either (1) to accept the

judgment or (2) to file a civil action for damages for the alleged

injury or death. Upon failure to file an election within the time

prescribed, petitioner shall be deemed to have filed an election to

accept the judgment.

(b) Declining Award. An election to decline an award of

compensation may be accompanied by a motion for the limited

compensation provided by 42 U.S.C. Sec. 300aa-15(f)(2). If such a

motion has not been filed by time the election is filed, petitioner

will be deemed to have waived that limited compensation. Such

motion shall be forwarded to the special master for a decision

thereon. The decision of the special master on the motion shall be

considered a separate "decision" for purposes of Vaccine Rules 11,

18, and 23.

Rule 13. Attorneys' Fees and Costs.

Any request for attorneys' fees and costs pursuant to 42 U.S.C.

Sec. 300aa-15(e) shall be filed no later than six months following

the filing of an election pursuant to Vaccine Rule 12. The clerk

shall forward the fee request to the special master to whom the

case was assigned for consideration and decision. The decision of

the special master on the fee request shall be considered a

separate decision for purposes of Vaccine Rules 11, 18, and 23.

IV. GENERAL PROVISIONS

Rule 14. Attorneys.

(a) Attorneys Eligible to Practice. Only attorneys who are

members of the bar of the United States Court of Federal Claims and

who comply with the Vaccine Rules may enter an appearance, file

pleadings, and practice before the Office of Special Masters and

the court. The clerk's office will not accept for filing any

pleading, motion, or other paper that is not signed by the attorney

of record in the case or by member of this bar authorized to sign

the attorney of record's name on the attorney of record's behalf.

For admission to the bar of the court, RCFC 83.1(b) shall apply.

(b) Attorneys of Record. There shall be but one attorney of

record for a party in any case at any one time, and such attorney

of record shall be an individual, and not a firm, who has been

admitted to practice before the Court of Federal Claims. Any other

attorneys assisting the attorney of record shall be designated as

of counsel. The attorney of record shall include on all filings the

attorney's name, address, and telephone number. The attorney of

record for each party shall promptly file with the clerk a notice

of any change in address.

(c) Change of Attorneys. RCFC 83.1(c) shall apply.

(d) Unrepresented Party. An individual may represent himself or

herself or a member of the individual's immediate family as a

party. Any other party, however, must be represented by an attorney

who is admitted to practice before the Court of Federal Claims. The

term "counsel" or "attorney" in the Vaccine Rules shall include

unrepresented parties.

Rule 15. Third Parties.

No person may intervene in a vaccine injury compensation

proceeding. However, the special master shall afford all interested

persons an opportunity to submit relevant written information. Such

information may be submitted within 60 days of publication of

notice of the petition in the Federal Register, or later with leave

of the special master.

Rule 16. Caption of All Filings.

The petition and other filings shall be captioned with the

appropriate title (the petition should leave blank the spaces for

the special master's name and the case number; all filings

thereafter must include the case number and the name of the

assigned special master). See Appendix of Forms, Form 7.

Rule 17. Filing and Service of Papers After the Petition.

(a) Filing with the Clerk Defined. All pleadings and other papers

required to be filed with the clerk by the Vaccine Rules or by

order of the special master or the court shall be forwarded to the

clerk of the court at the address noted in Vaccine Rule 2. A

document is filed when actually received and marked filed by the

clerk, not when mailed. All matters shall be brought to the

attention of the special master or the court through formal filings

with the clerk rather than by correspondence.

(b) Service. A copy of every document filed by any party with the

clerk shall be served on the opposing party's attorney, or the

opposing unrepresented party if no appearance of attorney has been

entered. A certificate of service showing date of service shall be

appended to the original and copies thereof. See RCFC 5.

(c) Date. Each filing shall bear on the signature page the date

on which it is signed.

(d) Number of Copies. The parties shall file an original and two

copies of each paper to be filed with the clerk, except that for

filings of 50 pages or more, an original and one copy will suffice.

Rule 18. Availability of Filings.

(a) General. All filings with the clerk pursuant to the Vaccine

Rules are to be made available only to the special master, judge,

and parties, with the exception of certain court-produced documents

as set forth in subdivision (b) of this rule. A transcript prepared

pursuant to Vaccine Rule 8(b) shall be considered a filing for

purposes of this rule.

(b) Decisions of special masters and judges. When a decision of a

special master or of the court is filed with the clerk, each party

will be afforded 14 days in which to object to the public

disclosure of any information furnished by that party -

(1) that is trade secret or commercial or financial information

and is privileged or confidential, or

(2) that are medical files and similar files the disclosure of

which would constitute a clearly unwarranted invasion of privacy.

If the party furnishing information objects to disclosure, that

information shall be redacted prior to public disclosure of the

decision. In the absence of objection, the entire decision will be

made public.

Rule 19. Time.

(a) Computation. In computing any period of time, the day of the

act, event, or default from which the designated period of time

begins to run shall not be included. The last day of the period so

computed shall be included, unless it is a Saturday, a Sunday, or a

legal holiday or, when the act to be done is the filing of a paper

in court, a day on which weather or other conditions have made the

clerk's office inaccessible, in which event the period runs until

the end of the next day which is not a Saturday, a Sunday, or a

holiday. When the period of time prescribed or allowed is less than

11 days, intermediate Saturdays, Sundays, and legal holidays shall

be excluded in the computation. Service by mail is complete upon

mailing, but filing is not. For legal holidays, see RCFC 6(a).

(b) Enlargement. Motions for enlargement of time may be granted

for good cause shown. A motion shall set forth the reason or

reasons upon which the motion is based. Such motion must contain a

representation that the moving party has discussed the motion with

opposing counsel and a statement whether an opposition will be

filed or, if opposing counsel cannot be consulted, an explanation

of the efforts made to do so.

(c) Additional Time After Service By Mail. Whenever a party has

the right or is required to do some act within a prescribed period

after the service of a paper, and the service is made by mail, 3

calendar days shall be added to the prescribed period, unless the

special master or the court orders otherwise.

Rule 20. Motions.

(a) Motions. A motion, unless made orally, shall be made in

writing, shall state with particularity the grounds therefor, shall

set forth the relief or order sought, and shall be filed with the

clerk. Any motion, objection, or response may be accompanied by a

memorandum, and, if necessary, by supporting affidavits. Any motion

may be accompanied by a proposed order.

(b) Responses and Replies. Unless otherwise provided by the

special master or the court, any response or objection to a written

motion shall be filed within 14 days after service of the motion,

and any reply shall be filed within 7 days after service of the

response or objection.

(c) Oral Argument. Oral argument on a motion may be scheduled. A

party desiring oral argument on a motion shall so request in the

motion or response.

Rule 21. Dismissal of Petitions.

(a) Voluntary Dismissal; Effect Thereof. A petition may be

dismissed by the petitioner without order of the special master or

the court (1) by filing a notice of dismissal at any time before

service of respondent's report, or (2) by filing a stipulation of

dismissal signed by all parties who have appeared in the

proceeding. Unless otherwise stated in the notice of dismissal or

stipulation, the dismissal is without prejudice, except that a

notice of dismissal may, in the discretion of the special master or

the court, be deemed to operate as an adjudication upon the merits

when filed by a petitioner who has previously dismissed the same

claim.

(b) Failure to Prosecute or Participate. If petitioner fails to

prosecute, the petition may be dismissed pursuant to Vaccine Rule

21(c). No judgment shall be entered against respondent despite any

failure of participation unless petitioner introduces evidence

establishing a right to compensation.

(c) Involuntary Dismissal. For failure of petitioner to prosecute

or comply with the Vaccine Rules or any order, the special master

or the court may dismiss a petition or any claim therein.

V. REVIEW OF DECISIONS OF SPECIAL MASTERS

Rule 22. [Abrogated.]

Rule 23. Motion for Review and Objections.

To obtain review of a special master's decision, within 30 days

after the date on which the decision is filed, a party must file

with the clerk a motion for review of the decision. No extensions

of time under this rule will be permitted, and the failure of a

party to timely file such a motion shall constitute a waiver of the

right to obtain review.

Rule 24. Memorandum of Objections.

The motion for review must be accompanied by a memorandum of

numbered objections to the decision. This memorandum must fully and

specifically state and support each objection to the decision. The

memorandum shall cite specifically to the record created by the

special master, e.g., to specific page numbers of the transcript,

exhibits, etc., and should also fully set forth any legal argument

the party desires to present to the reviewing judge. The memorandum

shall be limited to 20 pages and must conform to the provisions of

RCFC 5.2.

Rule 25. Response.

(a) If a motion for review is filed, the other party may file a

response thereto within 30 days of the filing of the motion. No

extensions of time under this rule will be permitted, and the

failure of a party timely to file such a response shall constitute

a waiver of the right to respond. The response shall be in

memorandum form and shall fully respond to each numbered objection.

The memorandum shall cite specifically to the record created by the

special master, e.g., to specific page numbers of the transcript,

exhibits, etc., and should also fully set forth any legal argument

the party desires to present to the reviewing judge. The memorandum

shall be limited to 20 pages and must conform to the provisions of

RCFC 5.2.

(b) If both parties file motions for review, each party may file

a response to the other party's motion.

Rule 26. Assignment.

When a motion for review is filed with the Clerk, the case will

be assigned to a Court of Federal Claims judge to conduct the

review. The assignment shall be made pursuant to RCFC 40.1.

Rule 27. Review.

The assigned judge shall undertake a review of the objections

raised and may thereafter:

(a) Uphold the findings of fact and conclusions of law and

sustain the special master's decision;

(b) Set aside any finding of fact or conclusion of law found to

be arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law, and issue the judge's own decision; or

(c) Remand the case to the special master for further action in

accordance with the judge's direction.

Rule 28. Time for Review.

The judge shall complete the review within 120 days of the last

date for the filing of a response under Vaccine Rule 25, excluding

any days the case is before a special master on remand. If the

judge remands the case to a special master, the total period for

any remands shall not exceed 90 days.

Rule 28A. Remand Procedure.

If the judge remands a case to a special master, the master,

after completing the remand assignment, shall file a "decision on

remand" resolving the case, unless the order of remand directs

otherwise. The clerk shall promptly notify the judge who remanded

the case of the filing of this decision on remand. Unless specified

otherwise in the judge's order remanding the case, this decision

shall be considered a separate decision for purposes of Vaccine

Rules 11, 18, and 23, i.e., judgment automatically will be entered

in conformance with the master's decision unless a new motion for

review is filed pursuant to Vaccine Rule 23. If a party seeks

review of such decision, the clerk shall assign the case to the

judge who remanded the case.

Rule 29. Withdrawal of Petition.

If the judge fails to direct entry of judgment within 420 days

after the date on which a petition was filed, excluding any periods

of suspension pursuant to Vaccine Rule 9 or remands, the petitioner

may file a notice to continue or withdraw the petition. Such a

notice shall be filed within 30 days after the expiration of the

420-day period.

Rule 30. Judgment.

(a) After Review. After review and decision by a judge, the clerk

shall forthwith enter judgment in accordance with the judge's

decision.

(b) Stipulation for Judgment. Any stipulation for a money

judgment shall be signed by authorized representatives of the

Secretary of Health and Human Services and the Attorney General.

Rule 31. Reconsideration.

If a party files a motion for reconsideration of a judge's

decision within 10 days of entry of the judgment, RCFC 59 shall

apply.

Rule 32. Notice of Appeal.

Review of a Court of Federal Claims judgment by the United States

Court of Appeals for the Federal Circuit may be obtained by filing

with the clerk of the Federal Circuit a notice of appeal (petition

for review) within 60 days of the date of the entry of judgment.

Rule 33. Election.

After review by the Court of Federal Claims and entry of

judgment, an election as described in Vaccine Rule 12 shall be made

within 90 days following the entry of judgment. However, if an

appeal is taken to the United States Court of Appeals for the

Federal Circuit pursuant to Vaccine Rule 32, the 90-day period for

the election shall not run from the original date of judgment, but

rather from the date of the appellate court's mandate or any

subsequent judgment of the Court of Federal Claims on remand,

whichever occurs later.

Rule 34. Attorneys' Fee and Costs.

Any request for attorneys' fees and costs, in a case where

judgment followed a review by a judge, will be processed pursuant

to Vaccine Rule 13.

Rule 35. [Abrogated.]

VI. RELIEF FROM JUDGMENT

Rule 36. Relief from Judgment.

(a) General. Following the entry of judgment by the Court of

Federal Claims, if a party files a motion pursuant to RCFC 59 or

60, the clerk of the court shall refer such motion as follows. If

the petition has previously been before a judge of the court upon

review pursuant to Vaccine Rule 23, then the motion shall be

referred to that judge. If the petition has not previously been

before a judge of the court upon review pursuant to Vaccine Rule

23, then the motion shall be referred to the Office of Special

Masters.

(b) Review of a Special Master's Ruling. When a motion pursuant

to RCFC 59 or 60 is referred to a special master pursuant to

subdivision (a) of this rule, that master shall file a written

ruling upon such motion. That ruling shall become the final ruling

of the court on the motion, unless a party files a motion for

review of that ruling, accompanied by a memorandum of objections to

the ruling, within 30 days of the date of the ruling. If such a

review motion is filed, the case will be submitted to a judge of

the court, who will review the special master's ruling, setting

such ruling aside only if it is found to be arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law.

The non-moving party may file a memorandum response within 30 days

of the filing of the review motion. Memorandums for each party

shall be limited to 20 pages and must conform to the provisions of

RCFC 5.2.

(c) If Judgment is Altered. If the original judgment is modified

pursuant to RCFC 59 or 60 or otherwise, and the petitioner is to

receive any award for damages calculated with respect to the "date

of judgment," such damages shall be calculated based upon the date

of the original judgment, unless the ruling of the special master

or court directs otherwise.

-MISC1-

RULES COMMITTEE NOTE

Appendix B sets forth rules applicable to proceedings involving

claims for the compensation under the National Vaccine Injury

Compensation Program, 42 U.S.C. Secs. 300aa-10 - 300aa-34 (1994).

-End-

-CITE-

28 USC APPENDIX App. C 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

APPENDIX C

-HEAD-

App. C

-MISC1-

APPENDIX C

PROCEDURE IN PROCUREMENT PROTEST CASES PURSUANT TO 28 U.S.C. SEC.

1491(B)

I. INTRODUCTION

1. This Appendix describes standard practices in protest cases

filed pursuant to 28 U.S.C. Sec. 1491(b) and supplements the Rules

of the United States Court of Federal Claims, which are otherwise

fully applicable to these cases.

II. REQUIREMENT FOR PRE-FILING NOTIFICATION

2. In order to expedite proceedings, prior to the filing of a

protest case pursuant to 28 U.S.C. Sec. 1491(b), plaintiff's

counsel shall (except in exceptional circumstances to be described

in moving papers) provide at least 24-hours advance notice of

filing the case to the:

(a) Department of Justice, Commercial Litigation Branch, Civil

Division - (202) 514-7300;

(b) Clerk, United States Court of Federal Claims - (202)

219-9657;

(c) procuring agency contracting officer by facsimile

transmission, only; and

(d) apparently successful bidder/offeror (in cases where there

has been an award and the plaintiff has received notice of the

identity of the awardee).

Such notice shall be provided during conventional business hours.

The pre-filing notice is intended to permit the Department of

Justice to assign an attorney to the case who can be prepared to

address relevant issues on a timely basis and to permit the court

to insure the availability of appropriate court resources. Failure

to provide pre-filing notification will not preclude the filing of

the case, but is likely to delay the initial processing of the case

including the scheduling of the initial status conference. See

paragraph 8, below. Plaintiff's counsel shall apprise the above

entities of any material change in respect to the timing of, or

intent to file, a protest. Plaintiffs are encouraged to provide

earlier notice if possible as a courtesy to the court and to

government counsel.

3. The pre-filing notice plaintiff provided pursuant to paragraph

2, above, should include the following information:

(a) The name of the procuring agency and the number of the

solicitation in the contested procurement;

(b) The name and telephone number of the contracting officer

responsible for the procurement;

(c) Whether plaintiff contemplates requesting temporary or

preliminary injunctive relief pursuant to RCFC 65;

(d) Whether the plaintiff has discussed the need for temporary

or preliminary injunctive relief with Department of Justice

counsel and the response, if any;

(e) Whether the action was preceded by the filing of a protest

before the General Accounting Office (GAO) (if so, provide the

"B-" number of the protest and indicate whether a decision was

issued); and

(f) Whether plaintiff contemplates the need for the court to

enter a protective order.

III. FILING UNDER SEAL

4. In the event plaintiff believes its complaint, or any

pleadings filed at the same time, contain confidential or

proprietary information and plaintiff seeks to protect that

information from public scrutiny, plaintiff must file a motion for

leave to file the complaint under seal, which shall be filed at the

same time the complaint is filed. When a complaint or related

papers are filed with an accompanying motion for leave to file

under seal, the pleadings will be treated as though filed under

seal while the motion is pending.

5. In filing documents under seal, a party shall follow the

procedures described in RCFC 5.3(d).

6. Complaints (and other pleadings filed at the same time) that

are filed under seal shall be marked or highlighted in such a way

that confidential or proprietary information is indicated and shall

be accompanied by a redacted version of the pleading (a version

that omits confidential or proprietary information), which will be

available for public scrutiny. Failure to file the redacted copy

may result in denial of the motion for leave to file under seal.

7. To the extent the complaint or any pleadings filed at the same

time contain classified information, the filing must conform to the

requirements of the classifying agency.

IV. INITIAL STATUS CONFERENCE

8. The court will schedule an initial status conference with the

parties to address relevant issues including, but not limited to,

the following:

(a) Identification of interested parties;

(b) In post-award cases, admission of the successful offeror as

an intervenor;

(c) Requests for temporary or preliminary injunctive relief, if

filed. See subdivision 15, below;

(d) The content of a protective order, if requested by one or

more of the parties and the requirement for redacted copies;

(e) The content and time for filing of the administrative

record;

(f) Whether it may be appropriate to supplement the

administrative record; and

(g) The nature of and schedule for further proceedings.

This initial status conference will be held as soon as practicable

after the filing of the complaint.

V. INJUNCTIVE RELIEF

9. The court's practice is to expedite protest cases to the

extent practicable and to conduct hearings on motions for

preliminary injunctions at the earliest practicable time.

Accordingly, when a plaintiff seeks a preliminary injunction, it

may not need to request a temporary restraining order.

10. An application for a temporary restraining order and/or

preliminary injunction shall be filed with the clerk along with the

complaint, unless the complaint has been previously filed. The

application shall be accompanied by affidavits, supporting

memoranda, and other documents upon which plaintiff intends to

rely. The application also shall be accompanied by a statement that

plaintiff's counsel has hand delivered or provided for hand

delivery, or transmitted by facsimile, copies of the foregoing

documents to the Department of Justice, Commercial Litigation

Branch, 8th Floor, 1100 L. St. N.W. Washington, D.C. 20530.

11. If the name of the apparently successful bidder/offeror is

known (in cases where there has been an award and the plaintiff has

received notice of the identity of the awardee), a copy of the

foregoing documents shall be provided by hand, facsimile, or

overnight delivery to the apparently successful bidder/offeror. The

plaintiff shall state in its application whether the documents have

been so provided. If the name of the awardee is unknown, the

plaintiff shall so state.

12. The apparently successful bidder/offeror may enter a notice

of appearance at any hearing on the application for a temporary

restraining order/preliminary injunction if it advises the court of

its intention to move to intervene pursuant to RCFC 24(a)(2) or has

moved to intervene before the hearing.

13. The clerk will promptly inform the parties of the judge to

whom the case has been assigned and the time and place of any

hearing.

14. Except in an emergency, the court will not consider ex parte

applications for a temporary restraining order.

15. In cases in which the plaintiff seeks temporary or

preliminary injunctive relief, counsel should be prepared to

discuss the following matters at the initial status conference:

(a) Whether and to what extent, absent temporary or preliminary

injunctive relief, the court's ability to afford effective final

relief is likely to be prejudiced;

(b) If a temporary restraining order has been requested,

whether the plaintiff has discussed this request in advance with

Department of Justice counsel and the response;

(c) If a temporary restraining order has been requested,

whether the government will agree to withhold award or suspend

performance pending a hearing on the motion for preliminary

injunction;

(d) If a preliminary injunction has been requested, whether the

government will agree to withhold award or suspend performance

pending a final decision on the merits;

(e) An appropriate schedule for completion of the briefing on

any motion for a preliminary injunction;

(f) The security requirements of RCFC 65(c) (See Appendix of

Forms, Forms 11-13); and

(g) Whether the hearing on the preliminary injunction should be

consolidated with a final hearing on the merits.

VI. PROTECTIVE ORDERS

16. Preliminary Matters.

(a) The principal vehicle relied upon by the court to insure the

protection of sensitive information is the protective order. The

protective order defines the procedures to be followed to identify

protected information, prepare redacted versions of such

information, and dispose of protected information at the conclusion

of the case.

(b) Information a party identifies as protected may be disclosed

only to parties who have been "admitted" to the protective order.

(c) Once a protective order is issued by the court, individuals

who seek access to protected information, must file an appropriate

application. If admitted to the protective order, the individual

becomes subject to the terms of the order. It is the responsibility

of those admitted to the protective order to take the necessary

steps to insure that the information is protected, consistent with

the terms of the protective order, while it is under their control

(this includes oversight of support personnel who may have access

to protected information).

(d) The court, procuring agency, and Department of Justice

personnel are automatically admitted to protective orders when

issued and are subject to their terms.

17. Issuance of a Protective Order

(a) Motions for protective orders must meet the requirements of

RCFC 10. The court may issue a protective order at its discretion.

(b) A sample protective order is found at Appendix of Forms, Form

8. The parties are cautioned that individual judges and the parties

themselves may want to amend the sample protective order to meet

the needs of specific cases or their individual preferences. It is

the specific protective order issued in a case that governs the

treatment of protected information in that case.

18. Application for Admission to the Protective Order

(a) Each party seeking access to protected information upon

behalf of an individual must file with the court, an appropriate

"Application for Admission to the Protective Order." Separate

applications for individual outside and in-house counsel, and for

consultants or experts retained by counsel for a party, are

contained in the Appendix of Forms (Forms 9 and 10). These forms

may also be amended by the court in response to individual case

needs.

(b) Admission to the protective order will be based upon the

contents of the application form submitted by an individual

representing a party.

(c) Objections to an Application for Admission to a protective

order must be filed with the court within two days of a party's

receipt of an application.

(d) In considering objections to Applications for Admission to a

Protective Order, the court will consider such factors as the

nature and sensitivity of the information at issue, a party's need

for access to the data in order to effectively represent its

client, the overall number of applications received and other

concerns that may affect the risk of inadvertent disclosure.

(e) Admission to a protective order will be made by the court in

the form of an order.

19. Designation of Protected Information and Preparation of

Redacted Pleadings.

After a protective order is entered the designation of protected

information and the preparation and filing of redacted documents

shall be governed by the terms of the protective order.

20. Disposition of Material Containing Protected Information.

The specific procedures to be followed in disposing of protected

information at the conclusion of the case shall be as described in

the protective order.

VII. THE CONTENT AND FILING OF THE ADMINISTRATIVE RECORD

21. The United States will be required to identify and provide (or

make available for inspection) the administrative record in a

protest case by the date(s) established at the initial status

conference. The filing of all or a part of the administrative

record shall be accompanied by a Notice of Filing.

22. Early production of relevant core documents may expedite final

resolution of the case. The core documents relevant to a protest

case may include, as appropriate the:

(a) agency's procurement request, purchase request, or

statement of requirements;

(b) agency's source selection plan;

(c) bid abstract or prospectus of bid;

(d) Commerce Business Daily or other public announcement of the

procurement;

(e) solicitation, including any instructions to offerors,

evaluation factors, solicitation amendments, and requests for

best and final offers;

(f) documents and information provided to bidders during any

pre-bid or pre-proposal conference;

(g) agency's responses to any questions about or requests for

clarification of the solicitation;

(h) agency's estimates of the cost of performance;

(i) correspondence between the agency and the protester,

awardee, or other interested parties relating to the procurement;

(j) records of any discussions, meetings, or telephone

conferences between the agency and the protester, awardee, or

other interested parties relating to the procurement;

(k) records of the results of any bid opening or oral motion

auction in which the protester, awardee or other interested

parties participated;

(g742l ) protester's, awardee's, and other interested parties'

offers, proposals, or other responses to the solicitation;

(m) agency's competitive range determination, including

supporting documentation;

(n) agency's evaluations of the protester's, awardee's, or

other interested parties' offers, proposals or other responses to

the solicitation, including supporting documentation;

(g742o ) agency's source selection decision, including

supporting documentation;

(p) pre-award audits, if any, or surveys of the offerors;

(q) notification of contract award and executed contract;

(r) documents relating to any pre- or post-award debriefing;

(s) documents relating to any stay, suspension, or termination

of award or performance pending resolution of the bid protest;

(t) justifications, approvals, determinations and findings, if

any, prepared for the procurement by the agency pursuant to

statute or regulation; and

(u) the record of any previous administrative or judicial

proceedings relating to the procurement, including the record of

any other protest of the procurement.

23. Because a protest case cannot be efficiently processed until

production of the administrative record, the court expects the

United States to produce the core documents and the remainder of

the administrative record as promptly as circumstances will permit.

(See RCFC 5.3 (d) which is applicable to administrative records,

unless waived by the court.) Materials that otherwise qualify as

part of the administrative record are not excluded from it merely

because they are only in electronic form.

24. Any additional documents within the administrative record shall

be produced at such time as may be agreed to by the parties or

ordered by the court.

VIII. ADMISSION OF COUNSEL

25. In those procurement protest cases in which counsel for the

plaintiff is not a member of the bar of the court and does not have

sufficient time to gain admission prior to the filing of the

action, the clerk shall accept for filing any proper complaint and

accompanying pleadings under 28 U.S.C. Sec. 1491(b) from such

counsel, conditioned upon counsel's prompt pursuit of admission to

practice before the United States Court of Federal Claims pursuant

to RCFC 83.1. Failure to do so within 30 days of the initiation of

the action may result in dismissal of the action, and possible

referral for disciplinary action.

-MISC1-

RULES COMMITTEE NOTE

This appendix sets forth the procedures applicable to the court's

procurement protest jurisdiction. In the main, these procedures

reflect those that formerly appeared as General Order No. 38,

issued on May 7, 1998. In addition, however, Appendix C now also

incorporates - in paragraphs 10 through 14 - those provisions of

former RCFC 65(f) (titled "Procedures") which enumerated

requirements particular to applications for temporary restraining

orders and/or motions for preliminary injunction.

Papers and exhibits are often filed under seal in procurement

protests. Procedures for unsealing are addressed at RCFC 77.3(d).

The standards for granting access to protected information are

addressed in decisions such as U.S. Steel Corp. v. United States,

730 F.2d 1465 (Fed. Cir. 1984) and Matsushita Elec. Indus. Co. v.

United States, 929 F.2d 1577 (Fed. Cir. 1991).

-End-

-CITE-

28 USC APPENDIX App. D 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

APPENDIX D

-HEAD-

App. D

-MISC1-

APPENDIX D

PROCEDURE IN CONGRESSIONAL REFERENCE CASES

1. Purpose. The Federal Courts Improvement Act of 1982, amended

28 U.S.C. Secs. 1492 and 2509 to authorize either House of Congress

to refer bills to the chief judge of the United States Court of

Federal Claims for investigation and report to the appropriate

House. Procedures promulgated by the chief judge applicable to such

congressional reference cases are specified herein. The RCFC, to

the extent feasible, are to be applied in congressional reference

cases.

2. Service of notice. Upon referral of a bill to the chief judge

by either House of the Congress, the clerk shall docket the

reference and serve a notice, as provided in RCFC 5, on each person

whose name and address is shown by the papers transmitted and who

appears to have an interest in the subject matter of the reference.

The notice shall set forth the filing of the reference and state

that the person notified appears to have an interest therein and

that such person shall have 90 days within which to file a

complaint. The clerk shall forward a copy of each such notice to

the Attorney General.

3. Complaint. Any person served with notice who desires to assert

a claim may do so by filing a complaint in accordance with RCFC

3(c), 8 and 9.

4. Failure of party to appear. If no interested person files a

complaint within the time specified in the notice served by the

clerk, the case may be reported upon the papers filed and upon such

evidence, if any, as may be produced by the Attorney General.

5. Hearing officer; review panel. Upon the filing of a complaint,

the chief judge by order will designate a judge of the court to

serve as hearing officer and a panel of three judges to serve as a

reviewing body. One of the review panel members will be designated

by the chief judge as presiding officer of the panel.

6. Subpoenas. Each hearing officer and each review panel shall

have authority to do and perform any acts which may be necessary or

proper for the efficient performance of their duties, including the

power of subpoena and the power to administer oaths and

affirmations. Subpoenas requiring travel of more than 100 miles to

place of trial must have attached thereto an order of approval by

the hearing officer.

7. Hearing officer report. The hearing officer shall conduct such

proceedings and utilize such rules of the United States Court of

Federal Claims as may be required to determine the facts, including

facts relating to delay or laches, facts bearing upon the question

whether the bar of any statute of limitation should be removed, or

facts claimed to excuse the claimant for not having resorted to any

established legal remedy. The hearing officer shall find the facts

specially. The hearing officer's findings shall not be set aside

unless clearly erroneous, and due regard shall be given to the

opportunity of the hearing officer to judge the credibility of

witnesses. The hearing officer shall append to the findings of fact

conclusions sufficient to inform Congress whether the demand is a

legal or equitable claim or a gratuity, and the amount, if any,

legally or equitably due from the United States to the claimant.

The report shall be filed with the clerk, and served by the clerk

on the parties.

8. Acceptance or exceptions. Within 30 days after service of the

report, each party shall file either (a) a notice of intention to

except to the report or (b) a notice accepting the report.

9. Review panel consideration and report. The findings and

conclusions of the hearing officer, together with the record of the

case, shall be considered by the review panel. When a party or

parties have filed a notice of intention to except, the presiding

officer by order shall establish a schedule for the parties to file

briefs on exceptions to the hearing officer's findings and

conclusions and requests for oral argument before the panel. The

chief judge will entertain no appeals or requests for review of any

rulings or actions by a hearing officer or a review panel. No case

shall be returned to the hearing officer unless so ordered by the

review panel. On the basis of the entire record, the panel, by

majority vote, shall adopt or modify the findings or the

conclusions of the hearing officer and shall file its report with

the clerk, for service on the parties.

10. Rehearing. Within 10 days after service of the report of the

review panel, any party may file a motion for rehearing to alter or

amend the report. The motion shall state with particularity any

contention of law or fact which the movant believes has been

overlooked or misapprehended, and shall contain argument in support

thereof. Oral argument in support of the motion shall not be

permitted. No response to a motion for rehearing is required, but

will be considered if filed within 10 days from the date the motion

for rehearing is served. No time extension shall be allowed for

filing such a response. If the motion for rehearing is granted, the

review panel shall take such further action as in its discretion

may be required by the circumstances of the particular case.

11. Transmittal to Congress. When all proceedings are concluded,

the report of the review panel shall be transmitted by the chief

judge to the appropriate House of Congress.

12. Admission to practice. Any attorney representing a claimant

in a congressional reference case may file and appear as attorney

of record in the proceeding if such attorney is a member of the bar

of the United States Court of Federal Claims or, if not, upon

certification to the clerk that such attorney is a member in good

standing of the bar of the highest court of any state in the Union

or the District of Columbia. Any claimant, except a corporation, in

a congressional reference case may proceed pro se.

13. Filing Fees. Filing fees as set by RCFC 77.1 are required in

congressional reference cases.

-MISC1-

RULES COMMITTEE NOTE

Appendix D provides the procedures applicable to congressional

reference cases. The appendix retains its earlier designation as

Appendix D and also retains its earlier text except for the

deletion of (i) former paragraph 6 (titled "Captions") and (ii) the

reference in paragraph 3 authorizing the filing of a "preliminary

complaint." The reference in paragraph 6 to case captions was

deleted as unnecessary and paragraph 3's reference to the filing of

a preliminary complaint was stricken because such complaints are no

longer authorized under RCFC 27.

-REFTEXT-

REFERENCES IN TEXT

The Federal Courts Improvement Act of 1982, referred to in par.

(1), is Pub. L. 97-164, Apr. 2, 1982, 96 Stat. 25. For complete

classification of this Act to the Code, see Short Title of 1982

Amendments note set out under section 1 of this title and Tables.

-End-

-CITE-

28 USC APPENDIX App. E 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

APPENDIX E

-HEAD-

App. E

-MISC1-

APPENDIX E

PROCEDURE IN CARRIER CASES

Rule 1. Carrier's Request For Admission of Facts

(a) Time for Filing Request. In every suit filed by a carrier for

the recovery of freight and/or passenger transportation charges,

the carrier shall, at the time the complaint is filed or within 30

days thereafter, file with the clerk a request for admission by the

defendant of the genuineness of any relevant documents described in

and exhibited with the request and of the truth of the material

matters of fact relied on by the carrier for recovery in the

action.

(b) Form and Content of Request. The request shall conform to the

following requirements:

(1) Duplication. The request, with accompanying schedules and

documents, may be typewritten, or may be printed, or otherwise

mechanically reproduced from a typewritten original, provided

that all copies filed with the clerk shall be legible and that

the words and figures shown therein shall be large enough type to

be read without difficulty.

(2) Copies; Filing; Service. If the request accompanies the

complaint, copies and service of such request shall be as

provided in RCFC 3(c) and 4. If the request is filed subsequent

to the filing of the complaint, copies and service of such

request shall be as provided in RCFC 5, and 83, except that 5

copies shall be served on the defendant in lieu of a copy.

(3) Signature of Attorney. The request shall be signed by the

attorney of record for the plaintiff.

(4) Numbered Paragraphs; Material Facts. The statements

contained therein shall be properly separated and numbered and

shall consist of specific statements of material facts which the

plaintiff expects to prove as opposed to general allegations of

the kind used in pleadings.

(5) Attachments. There shall be attached to the request copies

of any contracts, letters, or other documents, excluding tariffs

and other documents referred to in the schedules required by

subdivisions (b)(7) and (b)(8), which plaintiff proposes to offer

in evidence, in order that the genuineness of such documents may

be admitted by the defendant and the necessity of calling a

witness to identify the same may be avoided.

(6) Nature of Dispute; Statement of Issues. The statement in

the request shall be sufficiently explicit to show the nature of

the dispute and the specific reason or reasons why the plaintiff

believes it is entitled to recover higher rates or charges than

those allowed by the government. The word "dispute" as used in

the preceding sentence, means the shipment or shipments with

respect to which the General Services Administration (GSA) or

other agency of the government determined that the carrier's

charges had been overpaid or refused to pay the carrier's

supplemental bills covering such shipments, rather than

subsequent shipments which are not in dispute except for the fact

that the overpayments determined as to the shipments in dispute

have been deducted from the amount of the carrier's bills

covering such subsequent shipments. In order to show the nature

of the dispute there shall be attached to or included in

plaintiff's request a statement of the issues which, with respect

to each group of the carrier's bills involving the same issue,

shall consist of a brief narrative statement of such issue with a

reference to (A) court decisions involving the same issue, or (B)

the tariffs, contract terms or other authority relied upon by

plaintiff, and the tariffs or other authority which plaintiff

believes defendant relied upon in making deductions for claimed

overpayments to the carrier or in refusing to pay the carrier's

supplemental bills for claimed undercharges.

(7) Schedule: Claim for Transportation of Property. Where the

claim is for the recovery of charges for the transportation of

property for the government, there shall be attached to the

request a detailed schedule, prepared by or under the supervision

of the general auditor, comptroller, or other principal

accounting officer of the carrier. The schedule shall contain the

following factual information:

(A) List of Carrier's Bills in Dispute. The number of each of

the carrier's bills for the shipments in dispute, as

distinguished from the number of a subsequent bill from which

GSA made a deduction following its determination of an

overpayment on the bill in dispute.

(B) Detail for Each Bill of Lading. For each bill of lading

in dispute, covered by each bill referred to in paragraph (A),

the following facts:

(i) the number and symbol of each bill of lading;

(ii) the date of the shipment;

(iii) the origin and the destination of the shipment;

(iv) a description of the commodity or commodities shipped,

including a description of the packing where this affects the

rate;

(v) car number and initial;

(vi) the weight of the shipment, including the minimum

carload weight when greater than the actual weight;

(vii) when the shipment in dispute consists of one or more

carloads of mixed commodities, a description of the different

commodities, and the respective weight thereof loaded in each

car, including minimum carload weights where such weights

affect the rates;

(viii) the rates claimed for each article in the shipment

and for any accessorial services;

(ix) the total freight charges on each bill of lading;

(x) amounts refunded by carrier, if any, and the dates

thereof;

(xi) if the overpayment determined by GSA or other agency

has been deducted from the carrier's subsequent bill or

bills, the number of such subsequent bill or bills, the

amount deducted, and the date thereof;

(xii) the total amount paid the carrier;

(xiii) the balance due;

(xiv) a specific reference to the item or items in

designated tariffs authorizing the charges claimed, including

the classification rating if necessary, and authorization for

any accessorial charges claimed; or to a government rate

quotation;

(xv) the government file reference number as obtained from

GSA notice of overcharge, the Certificate of Indebtedness, or

other document issued by GSA, or, in the event there is no

GSA reference number, the name of the government paying

agency and bureau, the disbursing office voucher number, and

the date of payment;

(xvi) if the shipment in dispute consists in whole or in

part of a through transit movement: a. the through assessable

charges from the original point of shipment to the final

destination, including a description of the commodity, the

transited weight, the through rate, the tariff or special

authority for the through rate used, and, if local tonnage is

involved, the weight thereof, the points between which local

tonnage moved, and the rates and charges assessed against

such tonnage; b. details of the net amounts paid to and

beyond the transit station, including references to the

"inbound" and "outbound shipments" by bill of lading number

and symbol; c. date of shipment, origin and destination,

weight rate, and the net amounts paid to the respective

"inbound" and "outbound" carriers, naming them and

identifying the bill numbers on which such payments were

made; and, d. the balance due, i.e., the difference between

the through assessable charges, including the charges on

local tonnage, if any, and the respective net amounts paid on

the inbound and outbound shipments; and

(xvii) a brief statement as to the basis for the claim or

other brief statement which the carrier deems necessary to

explain the peculiarities of the shipment

(C) Computation for Typical Bill of Lading. Following the

listing of the information herein required with respect to each

group of carrier's bills involving the same issue or basis of

freight charge computation, the carrier shall either (i)

include in the schedule a computation of the freight charges

for that bill of lading, setting forth the basis or formula

used, and referring to the specific items in particular tariffs

or other authority which it relied upon for that purpose, or

(ii) attach a worksheet showing such computation and

information with respect to each typical bill of lading.

(8) Certification and Signature of Carrier: Property. The

schedule shall be certified by the general auditor, comptroller,

or principal accounting officer of the carrier, as follows:

(Name) (Title)

(Name of Carrier)

I do hereby certify that the above and foregoing schedule has

been prepared from the books and records of said company for use

in a suit in the United States Court of Federal Claims, entitled

________ v. United States, No. ____ and that to the best of my

knowledge, information, and belief the matters contained therein

are true and correct. To certify which, witness my hand at

____________ this ____ day of ______, 20__.

(Signature of auditor, comptroller, or principal accounting

officer.)

(9) Schedule: Claim for Transportation of Passengers. Where the

claim is for the recovery of charges for the transportation of

passengers for account of the government, there shall be attached

to the request a schedule, prepared by or under the supervision

of the general auditor, comptroller, or other principal

accounting officer of the carrier. The schedule shall contain the

following factual information:

(A) List of Carriers' Bills in Dispute. The number of each of

the carrier's bills in dispute, as distinguished from the

number of a subsequent bill from which GSA made a deduction

following its determination of an overpayment on the bill in

dispute.

(B) Detail: Each Transportation Request or Warrant. For each

transportation request or warrant in dispute, covered by each

bill referred to in subparagraph (A) the following facts:

(i) the symbol and number of each transportation request or

warrant in dispute;

(ii) the date of service;

(iii) the origin and destination of the travel;

(iv) the class or type of service;

(v) whether the travel was one way or round trip;

(vi) the number of the special movement, if any;

(vii) the route of travel;

(viii) the number of persons that traveled;

(ix) the gross per capita fare;

(x) the assessable passenger charges;

(xi) the amount paid, and by what government office and

where located;

(xii) amounts refunded by carrier, if any, and the dates

thereof, and the government office to which refunded and

where located;

(xiii) where an overpayment was determined by the

government and deducted from a carrier's subsequent bill, the

number of such subsequent bill, the amount of the deduction,

and the date thereof;

(xiv) the total amount paid, and by what government office

and where located;

(xv) the balance due;

(xvi) the tariff reference and item or special rate

authority;

(xvii) the government file reference; and

(xviii) a brief statement as to the basis for the claim,

including, where appropriate, a brief explanation showing the

extent to which the ticket issued by the carrier was not

used, and the value of the unused part of the ticket.

(10) Certification and Signature of Carrier: Passengers. The

schedule covering the transportation of passengers shall be

certified in the same manner as provided in Rule 1(b)(8), except

that where a request includes schedules pertaining to claims for

both the transportation of passengers and freight, one

certification shall suffice for all schedules.

(c) Plaintiff's Noncompliance: Consequences. In the event a

plaintiff in any action within the purview of this Appendix fails

or refuses to comply with the provisions hereof, the judge may (1)

refuse to allow it to support designated claims or prohibit it from

introducing in evidence designated documents or items of testimony,

or (2) take other appropriate action, which may include a dismissal

of the complaint or any part thereof.

Rule 2. Defendant's Response

(a) Time for Filing; Order. Promptly after the filing of the

plaintiff's request, the judge to whom the case is assigned shall,

by order filed with the clerk, fix a reasonable time within which

the defendant shall file its response to the request. A copy of

such order shall be served on the parties as provided in RCFC 5.

(b) Copies; Service; Signature. The defendant's response shall

consist of an original and two copies to be filed with the clerk

and with service to be made on plaintiff as provided in RCFC 5. The

response shall be signed by defendant's attorney of record and

shall comply with the terms of Rule 1(b)(1).

(c) Agreement; Modification; Denial. The defendant shall file

such response within the time fixed by the order, agreeing to the

separate items of fact, modifying the same in accordance with the

facts known by the defendant, specifically denying the same, or

setting forth in detail the reasons why it cannot truthfully admit

or deny designated portions of the request.

(d) Defendant's Statement of Issues. If defendant does not agree

with plaintiff's statement of the issues, it shall attach to or

include in the response its statement of the issues, which, with

respect to each group of the carrier's bills involving the same

issue, shall consist of a brief narrative statement of the issue,

as defendant contends, with reference to (1) a court decision

involving the same issue, or (2) the tariffs or other authority

relied upon by defendant.

(e) Verification of Carrier's Computations. If the defendant

finds that the schedule attached to plaintiff's request, or any

portion affecting the amount claimed, is incorrect on the basis of

the tariffs, government rate quotations, or other authority relied

on by plaintiff in its request, there shall be attached to the

response a schedule prepared by the defendant, setting forth the

facts and figures as to the amount of freight charges which

defendant asserts would be due on each carrier's bill if the court

holds that the tariffs or other authorities relied on by plaintiff

in its request are applicable, and showing how the defendant

arrived at any changes or corrections in the amounts claimed by

plaintiff.

(f) Schedule: Defendant's Basis for Applicable Charges. If the

defendant claims that the tariffs, government rate quotations, or

other authority relied on by plaintiff are inapplicable with

respect to any of the carrier's bills listed in plaintiff's

request, there shall be attached to the response a schedule

prepared by the defendant, setting forth the facts and figures in

detail as to the amount of freight or passenger charges defendant

claims is due on each disputed carrier's bill and containing a

specific reference to the item or items in designated tariffs,

government rate quotations, or other authority relied on by

defendant in support of its contention. The schedule shall also

comply with the terms of subdivision (b)(7)(C).

(g) Failure To Deny or Respond Within Specified Time:

Consequences. Except where the response details the reasons why the

defendant cannot admit or deny a particular statement in the

request, any fact not so modified or denied in the response shall

be deemed admitted, and the failure of the defendant to file its

response within the time specified by the judge shall be taken as

an admission of all of the facts as set forth in the request.

(h) Qualified Denial of Facts Available to Defendant:

Consequences. Where the request sets forth any facts that are

within the knowledge of the General Services Administration or of

the department or agency of the defendant for which the

transportation was performed and these specifically include but are

not limited to the facts and figures which plaintiff, by this

order, is directed to include in its schedules a response stating

that defendant cannot truthfully admit or deny such facts, or a

denial based on a lack of knowledge by defendant's attorney of

record, shall be deemed an admission thereof, provided, that such a

response shall not be deemed an admission if accompanied by the

sworn statement of the official in charge of the records that a

search has been made for the necessary documents or information and

that the documents or information cannot be found.

(i) Relation to Pleadings; Time for Filing Answer or

Counterclaim. In all cases to which this procedure applies, the

time for filing defendant's answer and any counterclaim asserted by

it may, without regard to the provisions of RCFC 12 and 13, be

contemporaneous with the date fixed by the judge for filing

defendant's response to plaintiff's request, provided, however,

that the period of limitations provided by 49 U.S.C. Secs. 11705

and 14705 within which the defendant may file a counterclaim is not

extended by any rule set forth in this Appendix or by any order. At

its option, the defendant may include the response in its answer or

counterclaim, which pleadings, nevertheless, shall otherwise comply

with the rules applicable to them.

Rule 3. Acceptance of Response; Pretrial; Judgment

(a) Plaintiff's Acceptance of Response. If a plaintiff is willing

to accept the amount shown to be due it in defendant's response,

or, where a counterclaim has been filed, is willing to accept the

net amount shown to be due plaintiff in the response after

deducting the amount of defendant's counterclaim, plaintiff's

attorney of record shall sign and file with the clerk within 30

days an original typewritten and 2 copies of a statement entitled

Plaintiff's Acceptance of the Amount Defendant Admits is Due,

stating therein that the response shows that a specified sum is due

plaintiff or, where a counterclaim has been filed, that the

response shows that the net amount of the counterclaim is a

specified sum, and that plaintiff consents to the entry of judgment

in the amount specified in favor of plaintiff in full settlement

and satisfaction of all claims asserted in the complaint and

request for admission of facts.

(b) Pretrial Conference; Fixing Amount of Recovery. When

plaintiff does not file an acceptance of the amount shown to be due

in the response, a pretrial conference shall be held for the

purpose of (1) resolving all issues and recording an agreement for

the entry of judgment or for a dismissal of the complaint or any

part thereof, or (2) segregating the carrier's bills in dispute

from those not in controversy and fixing the amount that either

party would be entitled to recover in the event of a decision in

its favor, and/or (3) taking any other action that may aid in the

prompt disposition of the suit.

(c) Entry of Judgment. Where all material issues are disposed of

through the filing by plaintiff of its acceptance of the amount

shown to be due in defendant's response, or at a pretrial

conference, or by the defendant's failure to file its response

within the time fixed by the judge, judgment may be entered without

further proceedings.

Rule 4. Cases Within Primary Jurisdiction of The Surface

Transportation Board

(a) Referral to Surface Transportation Board. In any suit subject

to the terms of this order, if defendant contends, whether on the

basis of the freight charge computations used by plaintiff or on

the basis of the freight charge computations used by defendant,

that any of the carrier's bills listed in the request raise issues

within the primary jurisdiction of the Surface Transportation Board

and intends to move the court to refer such issues to that agency,

defendant shall file the motion with the clerk at the time fixed

for the filing of its response under this order. The motion shall

contain: (1) an identification of the carrier's bills involved

unless all the bills in suit are included in the motion; (2) a

description of the commodities shipped and a statement respecting

any other factors which are pertinent to the issues covered by the

motion; (3) a reference to the applicable tariffs and a copy of the

pertinent provisions thereof; (4) a precise statement of the issue

or issues to be referred; and (5) a statement as to whether the

Surface Transportation Board has construed the cited tariffs in

prior decisions or has clarified the facts underlying them, citing

the pertinent decisions, if any.

(b) Plaintiff's Response to Defendant's Motion for Referral.

Plaintiff's response to the motion shall be filed within 30 days

after service of the motion, and shall state whether plaintiff

concurs in the motion. If plaintiff contends that the Surface

Transportation Board has construed the tariffs referred to in

defendant's motion or has clarified the factors underlying them in

previous decisions, the response shall cite such decision.

(c) Referral to Surface Transportation Board - Plaintiff's

Motion. If plaintiff, in any case subject to the terms of this

order, contends that any of the carrier's bills in suit raise

issues within the primary jurisdiction of the Surface

Transportation Board and intends to move the court to refer such

issues to that agency, plaintiff's motion shall be filed not later

than 30 days from the date defendant's response is filed and shall

conform to the requirements of Rule 4(a).

(d) Defendant's Response to Plaintiff's Motion for Referral.

Defendant's response to plaintiff's motion shall conform to the

requirements of Rule 4(b).

(e) Effect of Filing Referral Motion. The trial of any case

subject to the terms of this order in which a motion for referral

is filed shall be deferred until final action on the motion.

(f) Failure To File Referral Motion in Specified Time. The

failure of either party to file, within the time prescribed above,

a motion requesting the court to refer a pending case or any part

thereof to the Surface Transportation Board may be deemed good

cause for denying any such motion thereafter filed.

-MISC1-

RULES COMMITTEE NOTE

Appendix E formerly appeared in these rules as Appendix C.

Additionally, substantive changes have been made:

First, the word "common" has been stricken from the term "common

carrier." The term "common carrier" is no longer used in the

Interstate Commerce Act 49 U.S.C. Sec. 13102. Since deregulation

occurred, see ICC Termination Act of 1995, Pub. L. No. 104-88, Sec.

103, 109 Stat. 803, 852, carriers are no longer required to file

tariffs other than for household goods and noncontiguous domestic

trade. Certificates of Public Convenience and Necessity are no

longer required and thus there are no "common carriers," as the

term formerly was used, as a reference to a public utility, fully

regulated status.

Second, in subdivision (a)(2)(F), titled "Nature of Dispute;

Statement of Issues" the term "General Accounting Office" was

replaced with "General Services Administration." The GSA Board of

Contract Appeals replaced the General Accounting Office as

reviewing authority in GSA transportation audit billing appeals

pursuant to the Legislative Branch Appropriations Act of 1996,

effective June 30, 1996, and delegations of authority granted

thereunder. Also, in subdivision (a)(2)(F)(2), the term "contract

terms" was added as authority relied upon by plaintiffs in their

statement of issues because, with no tariff filing requirement,

individual movements by contract are more common.

Third, all references to a "Sec. 22 quotation" were replaced with

"government rate quotation." Section 22 (49 U.S.C. Sec. 22 (1887))

rates were replaced by "government rates" under 49 U.S.C. Sec.

10721 (rail) and Sec. 13712 (all other modes), and as such, lower

rates are not limited strictly for the use of the government.

Fourth, in subdivision (a)(2)(I)(ii)(a), the word "government"

was struck in reference to a transportation request or warrant in

dispute. Under the provisions of 41 CFR Sec. 102-118.175,

Government Bills of Lading will no longer be used for domestic

traffic and under 41 CFR Sec. 102-118.180, Government

Transportation Requests will no longer be mandatory.

Fifth, in subdivision (b)(9), titled, "Relation to Pleadings,

Time for Filing Answer or Counterclaim," the statutory reference

was updated.

Finally, all references to the "Interstate Commerce Commission"

were stricken and replaced with the "Surface Transportation Board."

While carriers are no longer subject to full regulation, the

"reasonableness requirement" on "through routes," "divisions of

joint rates," and rates "made collectively by [any group of]

carriers under agreements approved by the Surface Transportation

Board," remains intact and is subject to that body's review.

-End-

-CITE-

28 USC APPENDIX App. F 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

APPENDIX F

-HEAD-

App. F

-MISC1-

APPENDIX F

PROCEDURE IN TAX PARTNERSHIP CASES

Rule 1. General

(a) Applicability. This Appendix sets forth the special

provisions that apply to actions for readjustment of partnership

items under Section 6226 of the Internal Revenue Code (Code) and

actions for adjustment of partnership items under Code Section

6228. Except as otherwise provided in this Appendix, the Rules of

the United States Court of Federal Claims (RCFC), to the extent

pertinent, are applicable to such partnership actions.

(b) Definitions. As used in this Appendix -

(1) the term "partnership" means a partnership as defined in Code

Section 6231(a)(1);

(2) a "partnership action" is either an "action for readjustment

of partnership items" under Code Section 6226 or an "action for

adjustment of partnership items" under Code Section 6228;

(3) the term "partnership item" means any item described in Code

Section 6231(a)(3);

(4) the term "tax matters partner" means the person who is the

tax matters partner under Code Section 6231(a)(7) or appointed tax

matters partner by the court under Rule 9 of this Appendix, and who

under this Appendix is responsible for keeping each partner fully

informed of the partnership action (see Code Sections 6223(g) and

6230(1));

(5) a "notice of final partnership administrative adjustment" is

the notice described in Code Section 6223(a)(2);

(6) the term "administrative adjustment request" means a request

for an administrative adjustment of partnership items filed by the

tax matters partner on behalf of the partnership under Code Section

6227(b);

(7) the term "partner" means a person who was a partner as

defined in Code Section 6231(a)(2) at any time during any

partnership taxable year at issue in a partnership action;

(8) the term "notice partner" means a person who is a notice

partner under Code Section 6231(a)(8);

(9) the term "5-percent group" means a 5-percent group as defined

in Code Section 6231(a)(11);

(10) the term "deposit" means the deposit required by Code

Section 6226(e)(1); and

(11) the term "Notice of Assignment" means the notice mailed to

the parties by the clerk of the court after the filing of a

complaint that advises the parties of the name of the judge to whom

the proceeding is assigned.

(c) Jurisdictional Requirements. The court does not have

jurisdiction over a partnership action under this Appendix unless

the following conditions are satisfied:

(1) Actions for readjustment of partnership items:

(A) the Commissioner of Internal Revenue (Commissioner) has

issued a notice of final partnership administrative adjustment

(see Code Section 6226(a) and (b));

(B) a complaint for readjustment of partnership items is filed

with the court by the tax matters partner within the period

specified in Code Section 6226(a), or by a notice partner (or 5

percent group) subject to the conditions and within the period

specified in Code Section 6226(b); and

(C) the partner or partners filing the complaint make a deposit

as required by Code Section 6226(e).

(2) Actions for adjustment of partnership items:

(A) the Commissioner has not allowed all or some of the

adjustments requested in an administrative adjustment request

(see Code Section 6228(a)); and

(B) a complaint for adjustment of partnership items is filed

with the court by the tax matters partner subject to the

conditions and within the period specified in Code Section

6228(a)(2) and (3).

(d) Form and Style of Papers: All papers filed in a partnership

action shall be prepared in the form and style set forth in RCFC

5.2 and l0(a), except that the caption shall state the name of the

partnership and the full name and surname of any partner filing the

complaint and shall indicate whether such partner is the tax

matters partner, as for example, "ABC Partnership, Mary Doe, Tax

Matters Partner, Complainant" or "ABC Partnership, Richard Roe, A

Partner Other Than the Tax Matters Partner, Complainant."

Rule 2. Commencement of Partnership Action

(a) Commencement of Action. A partnership action shall be

commenced by filing a complaint with the court. See RCFC 3,

relating to commencement of case; RCFC 5.2 and 10, relating to form

of pleadings; and RCFC 5.2(d), relating to number of copies to be

filed.

(b) Contents of Complaint. Each complaint shall be titled either

"Complaint for Readjustment of Partnership Items under Code Section

6226" or "Complaint for Adjustment of Partnership Items under Code

Section 6228." Each such complaint shall contain the allegations

described in subdivision (c) of this Rule and the allegations

described in subdivision (d) or (e) of this Rule.

(c) All Complaints: All complaints in partnership actions shall

contain the following:

(1) the name and address of the complainant;

(2) the name, employer identification number, and principal

place of business of the partnership and of each partner filing

the complaint at the time the complaint is filed;

(3) the city and state of the office of the Internal Revenue

Service with which the partnership's return for the period in

controversy was filed.

A claim for reasonable litigation costs shall not be included in

the complaint in a partnership action. For the requirements as to

claims for reasonable litigation costs, see RCFC 54(d)(1).

(d) Complaint for Readjustment of Partnership Items: In addition

to including the information specified in subdivision (c) of this

Rule, a complaint for readjustment of partnership items shall also

contain the following information.

(1) All complaints. All complaints for readjustment of

partnership items shall contain:

(A) the date of the notice of final partnership

administrative adjustment and the city and state of the office

of the Internal Revenue Service that issued the notice;

(B) the year or years or other periods for which the notice

of final partnership administrative adjustment was issued;

(C) clear and concise statements of each and every error that

the complainant alleges to have been committed by the

Commissioner in the notice of final partnership administrative

adjustment. The assignments of error shall include issues, if

any, in respect to which the burden of proof is on the United

States. Any issues not raised in the assignments of error, or

in the assignments of error in any amendment to the complaint,

shall be deemed to be conceded. Each assignment of error shall

be set forth in a separately lettered subdivision;

(D) clear and concise lettered statements of the facts on

which the complainant bases the assignments of error, except

with respect to those assignments of error, if any, as to which

the burden of proof is on the United States;

(E) the amount of the deposit made by each partner filing the

complaint;

(F) the date and place of the making of each deposit;

(G) a prayer setting forth relief sought by the complainant;

(H) the signature, mailing address, and telephone number of

each complainant or of each complainant's counsel. See RCFC

83.1 regarding attorneys of record; and

(I) a copy of the notice of final partnership administrative

adjustment, which shall be appended to the complaint, and with

which there shall be included so much of any statement

accompanying the notice as is material to the issues raised by

the assignments of error. If the notice of final partnership

administrative adjustment or any accompanying statement

incorporates by reference any prior notices, or other material

furnished by the Internal Revenue Service, such parts thereof

as are material to the assignments of error likewise shall be

appended to the complaint.

(2) Complaints by Tax Matters Partner: In addition to including

the information specified in paragraph (1) of this subdivision, a

complaint filed by the tax matters partner during the time period

specified in Code Section 6226(b) shall also contain a separate

numbered paragraph stating that the pleader is the tax matters

partner.

(3) Complaints by Other Partners: In addition to including the

information specified in paragraph (1) of this subdivision, a

complaint filed by a notice partner or by a 5-percent group

during the time period specified in Code Section 6226(b) shall

also contain:

(A) a separate numbered paragraph stating that the pleader is

a notice partner or a representative of a 5-percent group (see

Code Section 6226(b)(1));

(B) a separate numbered paragraph setting forth facts

establishing that the pleader satisfies the requirements of

Code Section 6226(d);

(C) a separate numbered paragraph stating the name and

current address of the tax matters partner; and

(D) a separate numbered paragraph stating that the tax

matters partner has not filed a complaint for readjustment of

partnership items within the period specified in Code Section

6226(a).

Under subdivision (d)(1)(H) of this Rule, the representative of a

five-percent group may sign a complaint on behalf of all members of

the group. In such circumstances, the complaint shall contain a

separate-numbered paragraph stating that the representative has

been duly authorized to sign on behalf of all members of the group.

(e) Complaint for Adjustment of Partnership Items: In addition to

including the information specified in subdivision (c) of this

Rule, a complaint for adjustment of partnership items shall also

contain:

(1) a statement that the complainant is the tax matters

partner;

(2) the date that the administrative adjustment request was

filed and other proper allegations showing jurisdiction in the

court in accordance with the requirements of Code Section

6228(a)(1) and (2);

(3) the year or years or other periods to which the

administrative adjustment relates;

(4) the city and state of the office of the Internal Revenue

Service with which the administrative adjustment request was

filed;

(5) a clear and concise statement describing each partnership

item on the partnership return that is sought to be changed, and

the basis for each such requested change. Each such statement

shall be set forth in a separately lettered paragraph;

(6) clear and concise lettered statements of the facts on which

the complainant relies in support of such requested changes in

treatment of partnership items;

(7) a prayer setting forth relief sought by the complainant;

(8) the signature, mailing address, and telephone number of the

complainant or the complainant's counsel (see RCFC 83.1 regarding

attorneys of record); and

(9) a copy of the administrative adjustment request appended to

the complaint.

(f) Notice of Filing:

(1) Complaints by the Tax Matters Partner: Within 5 days after

receiving the Notice of Assignment from the court, the tax

matters partner shall serve notice of the filing of the complaint

on each partner in the partnership as required by Code Section

6223(g). Said notice shall include the docket number assigned to

the case by the court and the date of the Notice of

Assignment..(!1)

(2) Complaints by Other Partners: Within 5 days after receiving

the Notice of Assignment from the court, the complainant shall

serve a copy of the complaint on the tax matters partner, and at

the same time notify the tax matters partner of the docket number

assigned to the case by the court and of the date of the Notice

of Assignment. Within 5 days after receiving a copy of the

complaint and of the aforementioned notification from the

complainant, the tax matters partner shall serve notice of the

filing of the complaint on each partner in the partnership as

required by Code Section 6223(g). Said notice shall include the

docket number assigned to the case by the court and the date of

the Notice of Assignment.

(g) Copy of Complaint To Be Provided to All Partners. Upon

request by any partner in the partnership as referred to in Code

Section 6231(a)(2)(A), the tax matters partner shall, within 10

days of receipt of such request, make available to such partner a

copy of any complaint filed by the tax matters partner or by any

other partner.

(h) Joinder of Parties.

(1) Permissive Joinder. A separate complaint shall be filed with

respect to each notice of final partnership administrative

adjustment or each administrative adjustment request issued to

separate partnerships. However, a single complaint for readjustment

of partnership items or complaint for adjustment of partnership

items may be filed seeking readjustments or adjustments of

partnership items with respect to more than one final partnership

administrative adjustment or administrative adjustment request if

the notices or requests pertain to the same partnership. A

complaint may include a request that the proceeding be assigned to

the judge to whom one or more pending cases (whether relating to

the same partnership or to another partnership) are assigned, if

the other case or cases present common or related issues of law or

fact. For the procedures to be followed by partners who wish to

intervene or participate in a partnership proceeding, see Rule 4

below.

(2) Severance or Other Orders. With respect to a case based upon

multiple notices of final partnership administrative adjustment or

administrative adjustment requests, the court may order a severance

and a separate case to be maintained with respect to one or more of

such notices or requests whenever it appears to the court that

proceeding separately is in furtherance of convenience, or will

avoid prejudice, or when separate trials will be conducive to

expedition or economy.

Rule 3. Other Pleadings

(a) Answer: The United States shall file an answer or shall move

with respect to the complaint within the periods specified in and

in accordance with the provisions of RCFC 12.

(b) Reply: For provisions relating to the filing of a reply, see

RCFC 7(a).

Rule 4. Intervention and Participation

(a) Tax Matters Partner: The tax matters partner may intervene in

an action for readjustment of partnership items brought by another

partner or partners by filing a notice of election to intervene

with the court. Such notice shall state that the intervenor is the

tax matters partner and shall be filed within 45 days from the date

of the Notice of Assignment. See Code Section 6226(b)(2) and

paragraph 2(d)(3) of this Appendix.

(b) Other Partners: Any other partner who satisfies the

requirements of Code Section 6226(d) or 6228(a)(4)(B) may

participate in the action by filing a notice of election to

participate with the court. Such notice shall set forth facts

establishing that such partner satisfies the requirements of Code

Section 6226(d) in the case of an action for readjustment of

partnership items, or Code Section 6228(a)(4)(B) in the case of an

action for adjustment of partnership items, and shall be filed

within 45 days from the date of the Notice of Assignment. A single

notice may be filed by two or more partners; however, each such

partner must satisfy all requirements of this paragraph in order

for the notice to be treated as filed by or for that partner.

(c) Enlargement of Time: The court may grant leave to file a

notice of election to intervene or a notice of election to

participate out of time upon a showing of sufficient cause.

(d) Pleading: No assignment of error, allegation of fact, or

other statement in the nature of a pleading shall be included in

the notice of election to intervene or notice of election to

participate.

(e) Amendments to the Complaint: A party other than the

complainant who is authorized to raise issues not raised in the

complaint may do so by filing an amendment to the complaint. Such

an amendment may be filed, without leave of court, at any time

before service of the response to the complaint by the United

States. Otherwise, such an amendment may be filed only by leave of

court. See RCFC 15(a) for time for responding to amendments to the

complaint.

Rule 5. Service of Papers

(a) Complaints: All complaints shall be served by the clerk on

the United States.

(b) Papers Issued by Court: All papers issued by the court shall

be served by the clerk on the United States, the tax matters

partner (whether or not the tax matters partner is a participating

partner), and all other participating partners.

(c) All Other Papers: All other papers required to be served (see

RCFC 5) shall be served by the parties filing such papers. Whenever

a paper (other than a complaint) is required to be filed with the

court, the original paper shall be filed with the court with

certificates by the filing party or the filing party's counsel that

service of the paper has been made on each of the parties set forth

in subdivision (b) of this Rule or on such other parties' counsel.

Rule 6. Parties

(a) In General: For purposes of this Appendix, the United States,

the partner who filed the complaint, the tax matters partner, and

each person who satisfies the requirements of Code Section 6226(c)

and (d) or 6228(a)(4) shall be treated as parties to the action.

(b) Participating Partners: Participating partners are the

partner who filed the complaint and such other partners who have

filed either a notice of election to intervene or a notice of

election to participate in accordance with the provisions of RCFC

4. See Code Sections 6226(c) and 6228(a)(4)(A). For purposes of the

court's procedural rules other than those set forth in this

Appendix, only participating partners, as defined in this

subdivision, and the United States shall be considered to be

parties.

Rule 7. Settlement Agreements

(a) Consent By the Tax Matters Partner to Entry of Decision: A

stipulation consenting to entry of decision executed by the tax

matters partner and filed with the court shall bind all parties.

The signature of the tax matters partner constitutes a certificate

by the tax matters partner that no party objects to entry of the

decision. See Rule 10 below.

(b) Settlement Agreements Entered Into By All Participating

Partners or No Objection by Participating Partners:

(1) After expiration of the time within which to file a notice of

election to intervene or to participate under Rule 4(a) or (b), the

United States shall move for entry of decision, and shall submit a

proposed form of decision with such motion, if:

(A) all of the participating partners have entered into a

settlement agreement with the defendant, or all of such partners

do not object to the granting of the defendant's motion for entry

of decision, and

(B) the tax matters partner (if a participating partner) agrees

to the proposed decision in the case but does not certify that no

party objects to the granting of the defendant's motion for entry

of decision.

(2) Within 3 days from the date on which the defendant's motion

for entry of decision is filed with the court, the defendant shall

serve on the tax matters partner a certificate showing the date on

which the defendant's motion was filed with the court.

(3) Within 3 days after receiving the defendant's certificate,

the tax matters partner shall serve on all other parties to the

action, other than the participating partners, a copy of the

defendant's motion for entry of decision, a copy of the proposed

decision, a copy of the defendant's certificate showing the date on

which the defendant's motion was filed with the court, and a copy

of this paragraph of Rule 7.

(4) If any party objects to the granting of the defendant's

motion for entry of decision, then that party shall, within 60 days

from the date on which the defendant's motion was filed with the

court, file a motion for leave to file a notice of election to

intervene or to participate, accompanied by a separate notice of

election to intervene or to participate, as the case may be. If no

such motion is filed with the court within such period, or if the

court should deny such motion, then the court may enter the

proposed decision as its decision in the partnership action. See

Code Sections 6226(f) and 6228(a)(5).

(c) Other Settlement Agreements: If a settlement agreement is not

within the scope of subdivision (b) of this Rule, then:

(1) in the case of a participating partner, the defendant shall

promptly file with the court a notice of settlement agreement that

identifies the participating partner or partners who have entered

into the settlement agreement; and

(2) in the case of any partner who enters into a settlement

agreement, the defendant shall, within 7 days after the settlement

agreement is executed by both the partner and the defendant, serve

on the tax matters partner a statement which sets forth:

(A) the identity of the party or parties to the settlement

agreement and the date of the agreement;

(B) the year or years to which the settlement agreement

relates; and

(C) the terms of settlement as to each partnership item and the

allocation of such items among the partners.

Within 7 days after receiving the statement required by this

subdivision, the tax matters partner shall serve a copy of the

statement on all parties to the action.

Rule 8. Action For Adjustment of Partnership Items Treated As

Action For Readjustment of Partnership Items

(a) Amendment of complaint: If, after the filing of a complaint

for adjustment of partnership items (see Code Section 6228(a)) and

Rule 2(a) above, but before hearing of such complaint, the

Commissioner mails to the tax matters partner a notice of final

partnership administrative adjustment for the partnership taxable

year to which the complaint relates, such complaint shall be

treated as a complaint in an action for readjustment of the

partnership items to which such notice relates. The complainant,

within 90 days after the date on which the notice of final

partnership administrative adjustment is mailed to the tax matters

partner, shall file an amendment to the complaint, setting forth

every error which the complainant alleges to have been committed by

the Commissioner in the notice of final partnership administrative

adjustment, and the facts on which the complainant bases the

assignments of error. A copy of the notice of final partnership

administrative adjustment shall be appended to the amendment to the

complaint. On or before the day the amendment to the complaint is

delivered to the court, or, if the amendment is mailed to the

court, on or before the day of mailing, the tax matters partner

shall serve notice of the filing of the amendment to complaint on

each partner in the partnership as required by Code Section

6223(g).

(b) Participation: Any partner who has filed a timely notice of

election to participate in the action for adjustment of partnership

items shall be deemed to have elected to participate in the action

for readjustment of partnership items and need not file another

notice of election to do so. Any other partner may participate in

the action by filing a notice of election to participate within 45

days from the date of filing of the amendment to complaint. See

Rule 4 above.

Rule 9. Appointment and Removal of the Tax Matters Partner

(a) Appointment of Tax Matters Partner: If, at the time of

commencement of a partnership action by a partner other than the

tax matters partner, the tax matters partner is not identified in

the complaint, the court will take such action as may be necessary

to establish the identity of the tax matters partner or to effect

the appointment of a tax matters partner.

(b) Removal of Tax Matters Partner: After notice and opportunity

to be heard, the court may for cause remove a partner as the tax

matters partner. If the tax matters partner is removed by the

court, or if a partner's status as the tax matters partner is

terminated for reason other than removal by the court, the court

may appoint another partner as the tax matters partner if the

partnership fails to designate a successor tax matters partner

within such period as the court may direct.

Rule 10. Decisions

A decision entered by the court in a partnership action shall be

binding on all parties. For the definition of parties, see Rule 6

above.

-MISC1-

RULES COMMITTEE NOTE

Section 6226 of the Internal Revenue Code grants this court

jurisdiction, along with the United States Tax Court and the United

States district courts, to consider petitions for readjustment of

partnership items as set forth in a final partnership

administrative adjustment. Appendix F provides the procedural rules

for such cases. In the interests of uniformity, the rules contained

in Appendix F parallel the rules applicable to these cases in the

United States Tax Court.

-FOOTNOTE-

(!1) So in original.

-End-

-CITE-

28 USC APPENDIX App. G 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

APPENDIX G

-HEAD-

App. G

-MISC1-

APPENDIX G

PROCEDURE IN INDIAN CLAIMS COMMISSION CASES

Attorneys claiming fees and expenses in cases transferred to the

former United States Court of Claims from the Indian Claims

Commission pursuant to 25 U.S.C. Sec. 70v (1976) (amended 1977),

and thereafter assigned to this court pursuant to P.L. No. 97-164,

Sec. 149, 96 Stat. 25, 46, wherein money judgments are entered

shall file the appropriate motion or motions within 30 days of the

entry of the money judgment. Defendant shall file its response

within 28 days and a reply may be filed within 14 days. Absent the

filing of such a timely motion, a docket entry will be made closing

the case. Said motions shall state that copies thereof have been

provided to the tribal counsel, other head officer of the

plaintiff, if there be one, or if there is neither of the

foregoing, then to the agency superintendent under whose

jurisdiction the plaintiff may be.

-MISC1-

RULES COMMITTEE NOTE

Appendix G formerly appeared in these rules as General Order No.

4 issued December 29, 1982. Although Appendix G remains the same in

substance as General Order No. 4, some of the earlier language was

deleted as unnecessary.

-REFTEXT-

REFERENCES IN TEXT

Section 149 of Pub. L. 97-164, 96 Stat. 46, referred to in text,

amended former section 70v-3 of Title 25, Indians.

-End-

-CITE-

28 USC APPENDIX App. H 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

APPENDIX H

-HEAD-

App. H

-MISC1-

APPENDIX H

PROCEDURE FOR ALTERNATIVE DISPUTE RESOLUTION

1. General. The United States Court of Federal Claims recognizes

a variety of voluntary, non-binding alternative dispute resolution

(ADR) tools for use in appropriate cases. ADR techniques include

but are not limited to mediation, mini-trials, early neutral

evaluation, and non-binding arbitration. These processes may be

conducted either by a settlement judge or a third party neutral.

2. Terms.

(a) Settlement Judge: A judge of the court, other than the

presiding judge. Appointment of a settlement judge permits the

parties to engage in a frank, in-depth discussion of the strengths

and weaknesses of each party's case before a judicial officer

without the inhibitions that might exist before the presiding

judge. A settlement judge may act both as a mediator and as a

neutral evaluator. This process should be employed early enough in

the litigation to avoid needless expense and delay. Use of a

settlement judge permits the parties to gain the benefit of a

judicial perspective without jeopardizing their ability to gain a

resolution of their case by the presiding judge should settlement

efforts fail.

(b) Presiding Judge. The judge regularly assigned to the case.

(c) Third-party Neutrals. In consultation with the bar, the court

will maintain a list of qualified individuals who have indicated

their willingness and demonstrated their ability to serve as

neutral evaluators and mediators. Parties may select neutrals who

are not on the court's list.

(d) Mediation. A flexible and voluntary dispute-resolution

procedure in which a settlement judge or a third-party neutral, the

mediator, facilitates negotiations to reach a mutually agreeable

resolution. The mediation process involves one or more sessions in

which counsel, litigants, and the mediator participate, and may

continue over a period of time. The mediator can help the parties

improve communication, clarify interests, and probe the strengths

and weaknesses of their own and their opponents' positions. The

mediator can also identify areas of agreement and help generate

options that lead to a settlement.

(e) Early neutral evaluation. Using the services of a third-party

neutral or settlement judge knowledgeable in the subject-matter of

the litigation to assess the strengths and weaknesses of the

parties' positions. In this manner, the parties may gain a more

realistic view of their prospects for success, thus narrowing the

issues and facilitating settlement.

(f) Mini-trials. A flexible, abbreviated procedure in which the

parties present their case, or a portion of it, to a third-party

neutral or settlement judge.

3. Procedures. RCFC 16 and Appendix A paragraphs 3 and 4(i) set

out the parties' obligations with respect to consideration of ADR.

At any point in the litigation, however, the parties can notify the

court of their desire to pursue ADR. There is no single format for

ADR. Any procedures agreed to by the parties and adopted by the

settlement judge or third party neutral may be used. Certain basic

ground rules will be observed, however, as follows:

(a) ADR is voluntary. A party's good faith determination that ADR

is not appropriate in a particular case should be respected by

other parties and the court.

(b) When the parties have indicated their agreement to ADR to the

presiding judge, the presiding judge, if in agreement, will forward

the request to the Clerk of the Court for assignment to a

settlement judge or third-party neutral as selected by the parties.

(c) In the event the parties agree to use ADR, the settlement

judge or third party neutral and the parties will develop

procedures appropriate to that case. The settlement judge or

third-party neutral and the parties will develop a written

statement, to be executed by the settlement judge or neutral,

outlining the terms of the settlement process, including an

indication of assent to confidentiality by all parties. Neither

this statement nor any other materials developed for use solely

within the ADR process will be filed with the court.

(d) There will be no transcript of any ADR proceeding. All ADR

proceedings, including documents generated solely for the

proceedings and communications within the scope of the proceedings,

are confidential and will not be provided to a judge of the court

who is not the settlement judge in the dispute. Information which

is otherwise discoverable or admissible does not lose that

characteristic merely because of its use in the ADR proceedings.

(e) Participation in ADR constitutes agreement by the parties not

to subpoena or seek in any way the testimony of the settlement

judge in any subsequent proceeding.

(f) During the ADR process, the matter will remain on the docket

of the presiding judge. At the conclusion of the ADR process, the

settlement judge or the third party neutral will notify the

presiding judge and the clerk of the court only of the outcome,

i.e., whether the matter has been settled.

-MISC1-

RULES COMMITTEE NOTE

Appendix H "Procedure For Alternate Dispute Resolution," revises

and replaces the alternate dispute resolution procedures first

adopted by the court in General Order No. 13, dated April 15, 1987

and later amended through Amended General Order No. 13, dated

November 8, 1996. The adoption of Appendix H as a permanent part of

the court's rules reflects the court's recognition of the

increasing usefulness of alternative dispute resolution procedures

in the resolution of claims against the United States.

Form 1

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Form 1

<p><img src="http://uscode.house.gov/images/code03/images/88912.002" width=576 height=579 alt="Image of item"><p>

Form 2

<p><img src="http://uscode.house.gov/images/code03/images/88912.003" width=576 height=579 alt="Image of item"><p>

Form 2

<p><img src="http://uscode.house.gov/images/code03/images/88912.004" width=576 height=579 alt="Image of item"><p>

Form 2

<p><img src="http://uscode.house.gov/images/code03/images/88912.005" width=576 height=579 alt="Image of item"><p>

Form 3A

<p><img src="http://uscode.house.gov/images/code03/images/88912.006" width=576 height=579 alt="Image of item"><p>

Form 3B

<p><img src="http://uscode.house.gov/images/code03/images/88912.007" width=576 height=579 alt="Image of item"><p>

Form 4

<p><img src="http://uscode.house.gov/images/code03/images/88912.008" width=576 height=579 alt="Image of item"><p>

Form 5

<p><img src="http://uscode.house.gov/images/code03/images/88912.009" width=576 height=579 alt="Image of item"><p>

Form 5

<p><img src="http://uscode.house.gov/images/code03/images/88912.010" width=576 height=579 alt="Image of item"><p>

Form 6

<p><img src="http://uscode.house.gov/images/code03/images/88912.011" width=576 height=579 alt="Image of item"><p>

Form 6

<p><img src="http://uscode.house.gov/images/code03/images/88912.012" width=576 height=579 alt="Image of item"><p>

Form 7

<p><img src="http://uscode.house.gov/images/code03/images/88912.013" width=576 height=579 alt="Image of item"><p>

Form 7A

<p><img src="http://uscode.house.gov/images/code03/images/88912.014" width=576 height=579 alt="Image of item"><p>

Form 7A

<p><img src="http://uscode.house.gov/images/code03/images/88912.015" width=576 height=579 alt="Image of item"><p>

Form 8

<p><img src="http://uscode.house.gov/images/code03/images/88912.016" width=576 height=579 alt="Image of item"><p>

Form 8

<p><img src="http://uscode.house.gov/images/code03/images/88912.017" width=576 height=579 alt="Image of item"><p>

Form 8

<p><img src="http://uscode.house.gov/images/code03/images/88912.018" width=576 height=579 alt="Image of item"><p>

Form 8

<p><img src="http://uscode.house.gov/images/code03/images/88912.019" width=576 height=579 alt="Image of item"><p>

Form 9

<p><img src="http://uscode.house.gov/images/code03/images/88912.020" width=576 height=579 alt="Image of item"><p>

Form 9

<p><img src="http://uscode.house.gov/images/code03/images/88912.021" width=576 height=579 alt="Image of item"><p>

Form 9

<p><img src="http://uscode.house.gov/images/code03/images/88912.022" width=576 height=579 alt="Image of item"><p>

Form 10

<p><img src="http://uscode.house.gov/images/code03/images/88912.023" width=576 height=579 alt="Image of item"><p>

Form 10

<p><img src="http://uscode.house.gov/images/code03/images/88912.024" width=576 height=579 alt="Image of item"><p>

Form 10

<p><img src="http://uscode.house.gov/images/code03/images/88912.025" width=576 height=579 alt="Image of item"><p>

Form 11

<p><img src="http://uscode.house.gov/images/code03/images/88912.026" width=576 height=579 alt="Image of item"><p>

Form 11

<p><img src="http://uscode.house.gov/images/code03/images/88912.027" width=576 height=579 alt="Image of item"><p>

Form 12

<p><img src="http://uscode.house.gov/images/code03/images/88912.028" width=576 height=579 alt="Image of item"><p>

Form 12

<p><img src="http://uscode.house.gov/images/code03/images/88912.029" width=576 height=579 alt="Image of item"><p>

Form 13

<p><img src="http://uscode.house.gov/images/code03/images/88912.030" width=576 height=579 alt="Image of item"><p>

Form 13

<p><img src="http://uscode.house.gov/images/code03/images/88912.031" width=576 height=579 alt="Image of item"><p>

-End-

-CITE-

TITLE 28, APPENDIX - RULES OF THE COURT OF INTERNATIONAL TRADE 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE

(Effective November 1, 1980, as amended to January 6, 2003)

-MISC2-

TITLE I - SCOPE OF RULES - ONE FORM OF ACTION

Rule

1. Scope of Rules.

2. One Form of Action.

TITLE II - COMMENCEMENT OF ACTION; AMENDMENT OF SUMMONS; SERVICE OF

SUMMONS, PLEADINGS, MOTIONS AND ORDERS

3. Commencement of Action.

(a) Commencement.

(b) Filing Fee.

(c) Complaint Fee.

(d) Information Statement.

(e) Amendment of Summons.

(f) Notice to Interested Parties.

(g) Precedence of Action.

(h) Special Rule for Actions Described in 28 U.S.C.

Sec. 1581(c).

(i) Disclosure Statement.

3.1. Actions Transferred to the Court of International

Trade from a Binational Panel or Committee Pursuant

to 19 U.S.C. Sec. 1516a(g)(12)(B) or (D).

(a) Filing of Request for Transfer.

(b) Notice to Interested Parties.

(c) Intervention of Right.

(d) Documents in an Action Transferred Under 19

U.S.C. Sec. 1516a(g)(12).

(e) Pleadings.

(f) Additional Provisions Governing Judgment Upon

an Agency Record.

(g) Applicability of Other Court Rules.

4. Service of Summons and Complaint.

(a) Summons; Service by the Clerk.

(b) Summons and Complaint; Service by Plaintiff.

(c) Service.

(d) Waiver of Service; Duty to Save Costs of

Service; Request to Waive.

(e) Service Upon Individuals Within a Judicial

District of the United States.

(f) Service Upon Individuals in a Foreign Country.

(g) Service Upon Infants and Incompetent Persons.

(h) Service Upon Corporations and Associations.

(i) Service Upon the United States, and its

Agencies, Corporations, or Officers.

(j) Service Upon Foreign, State, or Local

Governments.

(k) Territorial Limits of Effective Service.

(l) Proof of Service.

(m) Time Limit For Service.

4.1 Service Of Other Process.

5. Service and Filing of Pleadings and Other Papers.

(a) Service: When Required.

(b) Same: How Made.

(c) Same: Numerous Defendants.

(d) Filing: When Required.

(e) Filing with the Court Defined.

(f) Filing of Summons and Complaint by Mail.

(g) Proof of Service.

(h) Filings Containing Business Proprietary

Information in an Action Described in 28

U.S.C. Sec. 1581(c).

(i) Electronic Filing.

6. Time.

(a) Computation.

(b) Extension.

(c) Additional Time After Service by Mail.

TITLE III - PLEADINGS AND MOTIONS

7. Pleadings Allowed; Consultation; Oral Argument;

Response Time; Show Cause Order; Form of Motions.

(a) Pleadings.

(b) Motions; Consultation.

(c) Oral Argument.

(d) Time to Respond.

(e) Order to Show Cause.

(f) Form of Motions and Other Papers.

(g) Dispositive Motions Defined.

8. General Rules of Pleading.

(a) Claims for Relief.

(b) New Grounds.

(c) Defenses; Form of Denials.

(d) Affirmative Defenses.

(e) Effect of Failure to Deny.

(f) Pleading To Be Concise and Direct; Consistency.

(g) Construction of Pleadings.

9. Pleading Special Matters.

(a) Capacity.

(b) Fraud, Mistake, Condition of the Mind.

(c) Conditions Precedent.

(d) Official Document or Act.

(e) Judgment.

(f) Time and Place.

(g) Special Damage.

10. Form of Pleadings.

(a) Caption; Names of Parties.

(b) Paragraphs; Separate Statements.

(c) Adoption by Reference; Exhibits.

11. Signing of Pleadings, Motions and Other Papers;

Sanctions.

(a) Signature.

(b) Representation To Court.

(c) Sanctions.

(d) Inapplicability to Discovery.

12. Defenses and Objections; When and How Presented; By

Pleading or Motion; Motion for Judgment on the

Pleadings.

(a) When Presented.

(b) How Presented.

(c) Motion for Judgment on the Pleadings.

(d) Preliminary Hearings.

(e) Motion for More Definite Statement.

(f) Motion to Strike.

(g) Consolidation of Defenses in Motion.

(h) Waiver or Preservation of Certain Defenses.

13. Counterclaim and Cross-Claim.

(a) Counterclaims.

(b) Counterclaim Exceeding Opposing Claim.

(c) Counterclaim Against the United States.

(d) Counterclaim Maturing or Acquired After

Pleading.

(e) Omitted Counterclaim.

(f) Cross-Claim Against Co-Party.

(g) Joinder of Additional Parties.

(h) Separate Trials - Separate Judgments.

(i) Demand for a Complaint.

14. Third-Party Practice.

(a) When Defendant May Bring in Third Party.

(b) When Plaintiff May Bring in Third Party.

15. Amended and Supplemental Pleadings.

(a) Amendments.

(b) Amendments To Conform to the Evidence.

(c) Relation Back of Amendments.

(d) Supplemental Pleadings.

16. Postassignment Conferences; Scheduling; Management.

(a) Postassignment Conferences; Objectives.

(b) Scheduling and Planning.

(c) Subjects to be Discussed at Postassignment

Conferences.

(d) Final Postassignment Conference.

(e) Orders.

(f) Sanctions.

TITLE IV - PARTIES

17. Parties Plaintiff and Defendant; Capacity.

(a) Real Party in Interest.

(b) Capacity To Sue or Be Sued.

(c) Infants or Incompetent Persons.

18. Joinder of Claims and Remedies.

(a) Joinder of Claims.

(b) Joinder of Remedies.

19. Joinder of Persons Needed for Just Adjudication.

(a) Persons To Be Joined if Feasible.

(b) Determination by Court Whenever Joinder Not

Feasible.

(c) Pleading Reasons for Nonjoinder.

(d) Exception of Class Actions.

20. Permissive Joinder of Parties.

(a) Permissive Joinder.

(b) Separate Trials.

21. Misjoinder and Non-joinder of Parties.

22. [Reserved.]

23. Class Actions.

(a) Prerequisites to a Class Action.

(b) Class Actions Maintainable.

(c) Determination by Order Whether Class Action To

Be Maintained - Notice - Judgment - Actions

Conducted Partially as Class Actions.

(d) Orders in Conduct of Actions.

(e) Dismissal or Compromise.

23.1. Actions Relating to Unincorporated Associations.

24. Intervention.

(a) Intervention of Right.

(b) Permissive Intervention.

(c) Procedure.

25. Substitution of Parties.

(a) Death.

(b) Incompetency.

(c) Transfer of Interest.

(d) Public Officers; Death or Separation From

Office.

TITLE V - DEPOSITIONS AND DISCOVERY

26. General Provisions Governing Discovery; Duty of

Disclosure.

(a) Required Disclosures; Methods to Discover

Additional Matter.

(b) Discovery Scope and Limits.

(c) Protective Orders.

(d) Timing and Sequence of Discovery.

(e) Supplementation of Disclosures and Responses.

(f) Conference of Parties; Planning for Discovery.

(g) Signing of Disclosures, Discovery Requests,

Responses, and Objections.

(h) Costs.

27. Depositions Before Action or Pending Appeal.

(a) Before Action.

(b) Pending Appeal.

(c) Perpetuation by Action.

28. Persons Before Whom Depositions May Be Taken.

(a) Within the United States.

(b) In Foreign Countries.

(c) Disqualification for Interest.

29. Stipulations Regarding Discovery Procedure.

30. Depositions Upon Oral Examination.

(a) When Depositions May Be Taken; When Leave

Required.

(b) Notice of Examination: General Requirements;

Method of Recording; Production of Documents

and Things; Deposition of Organization;

Deposition by Telephone.

(c) Examination and Cross-Examination; Record of

Examination; Oath; Objections.

(d) Schedule and Duration; Motion to Terminate or

Limit Examination.

(e) Review by Witness; Changes; Signing.

(f) Certification and Delivery by Officer;

Exhibits; Copies.

(g) Failure to Attend or to Serve Subpoena;

Expenses.

31. Deposition Upon Written Questions.

(a) Serving Questions; Notice.

(b) Officer To Take Responses and Prepare Record.

(c) Notice of Filing.

32. Use of Depositions in Court Proceedings.

(a) Use of Depositions.

(b) Objections to Admissibility.

(c) Form of Presentation.

(d) Effect of Errors and Irregularities in

Depositions.

33. Interrogatories to Parties.

(a) Availability.

(b) Answers and Objections.

(c) Scope: Use at Trial.

(d) Option To Produce Business Records.

34. Production of Documents and Things and Entry Upon Land

for Inspection and Other Purposes.

(a) Scope.

(b) Procedure.

(c) Persons Not Parties.

35. Physical and Mental Examinations of Persons.

(a) Order for Examination.

(b) Report of Examiner.

36. Requests for Admission.

(a) Request for Admission.

(b) Effect of Admission.

37. Failure To Make Disclosure or Cooperate in Discovery;

Sanctions.

(a) Motion for Order Compelling Disclosure or

Discovery.

(b) Failure To Comply With Order: Sanctions.

(c) Failure to Disclose; False or Misleading

Disclosure; Refusal to Admit.

(d) Failure of Party To Attend at Own Deposition or

Serve Answers to Interrogatories or Respond to

Request for Inspection.

(e) [Abrogated.]

(f) Failure to Participate in the Framing of a

Discovery Plan.

TITLE VI - TRIALS

38. Jury Trial of Right.

(a) Right Preserved.

(b) Demand.

(c) Demand; Specification of Issues.

(d) Waiver.

39. Trial by Jury or by the Court.

(a) By Jury.

(b) By the Court.

(c) Advisory Jury and Trial by Consent.

40. Request for Trial.

(a) Request.

(b) Designation.

(c) Premarking Exhibits.

41. Dismissal of Actions.

(a) Voluntary Dismissal; Effect Thereof.

(b) Involuntary Dismissal; Effect Thereof.

(c) Dismissal of Counterclaim, Cross-Claim, or

Third-Party Claim.

(d) Costs of Previously Dismissed Action.

42. Consolidation; Separate Trials.

(a) Consolidation.

(b) Separate Trials.

43. Taking of Testimony.

(a) Form.

(b) Affirmation in Lieu of Oath.

(c) Evidence on Motions.

(d) Interpreters.

(e) Documents Specially Admissible.

44. Proof of Official Record.

(a) Authentication.

(b) Lack of Record.

(c) Other Proof.

44.1. Determination of Foreign Law.

45. Subpoena.

(a) Form; Issuance.

(b) Service.

(c) Protection of Persons Subject to Subpoenas.

(d) Duties in Responding to Subpoena.

(e) Contempt.

46. Exceptions Unnecessary.

47. Jurors.

(a) Examination of Jurors.

(b) Peremptory Challenges.

(c) Excuse.

48. Number of Jurors - Participation in Verdict.

49. Special Verdicts and Interrogatories.

(a) Special Verdicts.

(b) General Verdict Accompanied by Answer to

Interrogatories.

50. Judgment as a Matter of Law in Actions Tried by Jury;

Alternative Motion for New Trial; Conditional Rulings

(a) Judgment as a Matter of Law.

(b) Renewal of Motion for Judgment After Trial;

Alternative Motion for New Trial.

(c) Same; Conditional Rulings on Grant of Motion

for Judgment as a Matter of Law.

(d) Same; Denial of Motion for Judgment as a Matter

of Law.

51. Instructions to Jury; Objection.

52. Findings by the Court; Judgment on Partial Findings.

(a) Effect.

(b) Amendment.

(c) Judgment on Partial Findings.

53. Masters.

(a) Appointment and Compensation.

(b) Reference.

(c) Powers.

(d) Proceedings.

(e) Report.

TITLE VII - JUDGMENT

54. Judgments.

(a) Definition - Form.

(b) Judgment Upon Multiple Claims or Involving

Multiple Parties.

(c) Demand for Judgment.

(d) Attorney's Fees.

55. Default.

(a) Entry.

(b) Judgment.

(c) Setting Aside Default.

(d) Plaintiffs, Counterclaimants, Cross-Claimants.

(e) Judgment Against the United States.

56. Summary Judgment.

(a) For Claimant.

(b) For Defending Party.

(c) Motion and Proceedings Thereon.

(d) Case Not Fully Adjudicated on Motion.

(e) Form of Affidavits - Further Testimony -

Defense Required.

(f) When Affidavits Are Unavailable.

(g) Affidavits Made in Bad Faith.

(h) Annexation of Statement.

56.1. Judgment Upon an Agency Record for an Action Other

Than That Described in 28 U.S.C. Sec. 1581(c).

(a) Motion for Judgment.

(b) Cross-Motions.

(c) Briefs.

(d) Time to Respond.

(e) Hearing.

(f) Partial Judgment.

56.2 Judgment upon an Agency Record for an Action Described

in 28 U.S.C. Sec. 1581(c).

(a) Proposed Briefing Schedule and Joint Status

Report.

(b) Cross-Motions.

(c) Briefs.

(d) Time to Respond.

(e) Hearing.

(f) Partial Judgment.

(g) Voluntary Dismissal - Time Limitation.

57. Declaratory Judgments.

58. Entry of Judgment, Decree or Final Order.

58.1. Stipulated Judgment on Agreed Statement of Facts -

General Requirements.

59. New Trials; Rehearings; Amendment of Judgments.

(a) Grounds.

(b) Time for Motion.

(c) Time for Serving Affidavits.

(d) On Court's Initiative.

(e) Motion To Alter or Amend a Judgment.

60. Relief From Judgment or Order.

(a) Clerical Mistakes.

(b) Mistakes; Inadvertence; Excusable Neglect;

Newly Discovered Evidence; Fraud, Etc.

61. Harmless Error.

62. Stay of Proceedings To Enforce a Judgment.

(a) Automatic Stay - Exceptions - Injunctions.

(b) Stay on Motion for New Trial or Rehearing, or

for Judgment.

(c) Injunction Pending Appeal.

(d) Stay Upon Appeal.

(e) Stay in Favor of the United States or Agency

Thereof.

(f) Stay According to State Law.

(g) Stay of Judgment as to Multiple Claims or

Multiple Parties.

TITLE VIII - PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS

63. Contempt.

64. Seizure of Person or Property.

65. Injunctions.

(a) Preliminary Injunction.

(b) Temporary Restraining Order; Notice; Hearing;

Duration.

(c) Security.

(d) Form and Scope of Injunction or Restraining

Order.

65.1. Security; Proceedings Against Sureties.

66. Receivers Appointed by Federal Courts.

67. Deposit in Court.

67.1. Deposit in Court Pursuant to Rule 67.

(a) Order for Deposit - Interest Bearing Account.

(b) Orders Directing Investment of Funds by Clerk.

68. Attorney's Fees and Expenses.

(a) Time for Filing.

(b) Content of Application.

(c) Response and Reply.

69. Execution.

(a) In General.

(b) Against Certain Public Officers.

TITLE IX - FILING OF OFFICIAL DOCUMENTS

70. Documents in an Action Described in 28 U.S.C. Sec.

1581(a) or (b).

71. Documents in an Action Described in 28 U.S.C. Sec.

1581(c) or (f).

(a) Actions Described in 28 U.S.C. Sec. 1581(c).

(b) Alternative Procedure in an Action Described in

28 U.S.C. Sec. 1581(c).

(c) Confidential or Privileged Information in an

Action Described in 28 U.S.C. Sec. 1581(c).

(d) Documents in an Action Described in 28 U.S.C.

Sec. 1581(f).

(e) Documents Filed - Copies.

(f) Filing of the Record With the Clerk of the

Court - What Constitutes.

72. Documents in All Other Actions Based Upon the Agency

Record.

(a) Documents Furnished in All Other Actions Based

Upon the Agency Record.

(b) Stipulations.

(c) Documents Filed - Copies.

73. Time for Filing Documents - Notice of Filing.

(a) Time.

(b) Notice.

TITLE X - ATTORNEYS

74. Admission to Practice.

(a) Qualifications.

(b) Procedure.

(c) Admission of Foreign Attorneys.

(d) Pro Hac Vice Applications.

(e) Disbarment or Other Disciplinary Action.

75. Practice - Appearance - Substitution of Attorneys -

Withdrawal of Attorney - Notification of Changes.

(a) Practice.

(b) Appearances.

(c) Substitution of Attorneys.

(d) Withdrawal of Attorney.

(e) Notification of Changes.

76. Amicus Curiae.

TITLE XI - THE COURT AND CLERK

77. Sessions of the Court.

(a) Court Always Open.

(b) Trials and Proceedings; Orders in Chambers.

(c) Place of Trials or Hearings.

(d) Photography, Tape Recording and Broadcasting.

(e) Assignment and Reassignment of Actions.

(f) Judge and Court; Defined.

77.1. Judicial Conference.

(a) Purpose.

(b) Composition.

(c) Registration Fee.

78. Motion Part.

(a) Motion Part - Establishment.

(b) Motion Part - Referral.

(c) Motion Part - Emergency Matters.

79. Books and Records Kept by the Clerk and Entries

Therein.

(a) Civil Docket.

(b) Judgments and Orders.

(c) Notice of Orders or Judgments.

80. Papers, Exhibits and Other Material.

(a) Custody and Control.

(b) Inspection.

(c) Withdrawal.

(d) Return and Removal.

(e) Reporting of Proceedings.

(f) Transcript of Proceedings.

(g) Fees.

81. Papers Filed; Conformity; Form, Size, Copies.

(a) Conformity Required.

(b) Means of Production.

(c) Caption and Signing.

(d) Numbering of Pages.

(e) Designation of Originals.

(f) Pleadings and Other Papers.

(g) Status of Action.

(h) Confidential Information.

(i) Briefs - Trial and Pretrial Memoranda.

(j) Content - Moving Party's Brief.

(k) Content - Respondent's Brief.

(l) Content - Reply Brief.

(m) General.

82. Clerk's Office and Orders by the Clerk.

(a) Business Hours and Address.

(b) Motions, Orders and Judgments.

(c) Clerk - Definition.

82.1. Judge's Directive.

TITLE XII - COURT CALENDARS

83. Reserve Calendar.

(a) Reserve Calendar.

(b) Removal.

(c) Dismissal for Lack of Prosecution.

(d) Extension of Time.

84. Suspension Calendar.

(a) Suspension Calendar.

(b) Test Case Defined.

(c) Motion for Test Case Designation.

(d) Suspension Criteria.

(e) Motion for Suspension.

(f) Time.

(g) Effect of Suspension.

(h) Removal From Suspension.

85. Suspension Disposition Calendar.

(a) Suspension Disposition Calendar.

(b) Time - Notice.

(c) Removal.

(d) Dismissal for Lack of Prosecution.

(e) Extension of Time.

86. [Reserved.]

87. Forms.

88. Title.

89. Effective Date.

(a) Effective Date of Original Rules.

(b) Effective Date of Amendments.

(c) Effective Date of Amendments.

(d) Effective Date of Amendments.

(e) Effective Date of Amendments.

(f) Effective Date of Amendments.

(g) Effective Date of Amendments.

(h) Effective Date of Amendments.

(i) Effective Date of Amendments.

(j) Effective Date of Amendments.

(k) Effective Date of Amendments.

(l) Effective Date of Amendments.

(m) Effective Date of Amendments.

(n) Effective Date of Amendment.

(o) Effective Date of Amendments.

(p) Effective Date of Amendments.

(q) Effective Date of Amendments.

(r) Effective Date of Amendments.

(s) Effective Date of Amendments.

(t) Effective Date of Amendments.

(u) Effective Date of Amendments.

(v) Effective Date of Amendments.

APPENDIX OF FORMS

-End-

-CITE-

28 USC APPENDIX TITLE I - SCOPE OF RULES - ONE

FORM OF ACTION 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

TITLE I - SCOPE OF RULES - ONE FORM OF ACTION

-HEAD-

TITLE I - SCOPE OF RULES - ONE FORM OF ACTION

-End-

-CITE-

28 USC APPENDIX Rule 1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

TITLE I - SCOPE OF RULES - ONE FORM OF ACTION

-HEAD-

Rule 1. Scope of Rules

-STATUTE-

These rules govern the procedure in the United States Court of

International Trade. They shall be construed and administered to

secure the just, speedy, and inexpensive determination of every

action. When a procedural question arises which is not covered by

these rules, the court may prescribe the procedure to be followed

in any manner not inconsistent with these rules. The court may

refer for guidance to the rules of other courts. The rules shall

not be construed to extend or limit the jurisdiction of the court.

-SOURCE-

(As amended Oct. 3, 1984, eff. Jan. 1, 1985; Oct. 5, 1994, eff.

Jan. 1, 1995.)

-End-

-CITE-

28 USC APPENDIX Rule 2 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

TITLE I - SCOPE OF RULES - ONE FORM OF ACTION

-HEAD-

Rule 2. One Form of Action

-STATUTE-

There shall be one form of action to be known as a "civil

action." (!1)

-FOOTNOTE-

(!1) Designation of Certain Pre-October 1, 1970 Actions. The

following designations shall apply to actions arising prior to

October 1, 1970: (1) Appeal for Reappraisement: An action

arising pursuant to section 501 or 516(a) of the Tariff Act of

1930 [19 U.S.C. 1501 or 1516], as effective prior to October

1, 1970, and forwarded to the court pursuant to section 501 or

516(c) of said Act, shall be known as an appeal for

reappraisement. (2) Protest: An action arising pursuant to

section 514 or 516(b) of the Tariff Act of 1930 [19 U.S.C.

1514 or 1516], as effective prior to October 1, 1970, and

forwarded to the court pursuant to section 515 or 516(c) of

that Act [19 U.S.C. 1515 or 1516] shall be known as a protest.

-End-

-CITE-

28 USC APPENDIX TITLE II - COMMENCEMENT OF

ACTION; AMENDMENT OF SUMMONS;

SERVICE OF SUMMONS, PLEADINGS,

MOTIONS AND ORDERS 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

TITLE II - COMMENCEMENT OF ACTION; AMENDMENT OF SUMMONS; SERVICE OF

SUMMONS, PLEADINGS, MOTIONS AND ORDERS

-HEAD-

TITLE II - COMMENCEMENT OF ACTION; AMENDMENT OF SUMMONS; SERVICE OF

SUMMONS, PLEADINGS, MOTIONS AND ORDERS

-End-

-CITE-

28 USC APPENDIX Rule 3 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

TITLE II - COMMENCEMENT OF ACTION; AMENDMENT OF SUMMONS; SERVICE OF

SUMMONS, PLEADINGS, MOTIONS AND ORDERS

-HEAD-

Rule 3. Commencement of Action

-STATUTE-

(a) Commencement. A civil action is commenced by filing with the

clerk of the court:

(1) A summons in an action described in 28 U.S.C. Sec. 1581(a) or

(b);

(2) A summons, and within 30 days thereafter a complaint, in an

action described in 28 U.S.C. Sec. 1581(c) to contest a

determination listed in section 516A(a)(2) or (3) of the Tariff Act

of 1930; or

(3) A summons and complaint concurrently in all other actions.

(b) Filing Fee. When an action is commenced, a $150 filing fee

shall be paid to the clerk of the court, except that

(1) a $120 filing fee shall be paid when the action is one

described in 28 U.S.C. Sec. 1581(a), and

(2) a $25 filing fee shall be paid when the action is one

described in 28 U.S.C. Sec. 1581(d)(1).

(c) Complaint Fee. When a complaint is filed in an action

described in 28 U.S.C. Sec. 1581(a), a $30 fee shall be paid to the

clerk of the court.

(d) Information Statement. When an action is commenced, the party

commencing the action shall file the original and a sufficient

number of copies for service (when service is to be made by the

Office of the Clerk) of a completed Information Statement on the

form shown in Form 5 in the Appendix of Forms.

(e) Amendment of Summons. The court may allow a summons to be

amended at any time, in its discretion and upon such terms as it

deems just, unless it clearly appears that material prejudice would

result to the substantial rights of the party against whom the

amendment is allowed.

(f) Notice to Interested Parties. In an action described in 28

U.S.C. Sec. 1581(c), the plaintiff, as provided in section 516A(d)

of the Tariff Act of 1930, shall notify every interested party who

was a party to the administrative proceeding of the commencement of

the action, by mailing a copy of the summons at the time the action

is commenced, or promptly thereafter, by certified or registered

mail, return receipt requested, to each such party at the address

last known in the administrative proceeding.

Upon filing of a complaint in an action described in 28 U.S.C.

Sec. 1581(c), the plaintiff shall promptly serve a copy of the

complaint, by certified or registered mail, return receipt

requested, on every interested party who was a party to the

administrative proceeding at the address last known in that

proceeding.

(g) Precedence of Action. Unless the court, upon motion for good

cause or upon its own initiative, determines otherwise in a

particular action, the following actions shall be given precedence,

in the following order, over other actions pending before the

court, and expedited in every way:

(1) An action seeking temporary or preliminary injunctive relief;

(2) An action involving the exclusion of perishable merchandise

or the redelivery of such merchandise;

(3) An action described in 28 U.S.C. Sec. 1581(c) to contest a

determination under section 516A of the Tariff Act of 1930;

(4) An action described in 28 U.S.C. Sec. 1581(a) to contest the

denial of a protest, in whole or in part, under section 515 of the

Tariff Act of 1930, involving the exclusion or redelivery of

merchandise;

(5) An action described in 28 U.S.C. Sec. 1581(b) to contest a

decision of the Secretary of the Treasury under section 516 of the

Tariff Act of 1930.

(h) Special Rule for Actions Described in 28 U.S.C. Sec. 1581(c).

When an action is commenced under 28 U.S.C. Sec. 1581(c) to contest

a determination listed in section 516A(a)(2) or (3) of the Tariff

Act of 1930 by the administering authority and such a determination

by the Commission, a party shall file a separate summons and

complaint with respect to each agency. Also, in an action described

in 28 U.S.C. Sec. 1581(c), when the plaintiff files the summons,

attorneys for the plaintiff are required to comply with the

procedures set forth in Rule 71(c) by filing of a Business

Proprietary Information Certification where appropriate.

(i) Disclosure Statement. A disclosure statement as provided by

Form 13 shall be filed by every party to an action, including

parties seeking or permitted to intervene, and for each amicus

curiae. The disclosure statement must be filed with the entry of

appearance (or with the summons if no separate notice of appearance

is required). If any of the information required changes after the

disclosure statement is filed, and before a final judgment is

issued, the party or amicus curiae must promptly file an amended

disclosure statement.

-SOURCE-

(As amended Nov. 4, 1981, eff. Jan. 1, 1982; July 21, 1986, eff.

Oct. 1, 1986; Dec. 3, 1986, eff. Mar. 1, 1987; Sept. 25, 1992, eff.

Jan. 1, 1993; Nov. 29, 1995, eff. Mar. 31, 1996; Aug. 29, 1997,

eff. Nov. 1, 1997; May 27, 1998, eff. Sept. 1, 1998; Jan. 25, 2000,

eff. May 1, 2000; Aug. 29, 2000, eff. Jan. 1, 2001; Dec. 18, 2001,

eff. Apr. 1, 2002.)

-MISC1-

PRACTICE COMMENT

For the appropriate summons form and number of copies to be

filed, refer to Forms 1 to 4 of the Appendix of Forms. Information

Statement forms, as shown in Form 5, are available upon request

from the office of the clerk.

As prescribed by Rule 5(e), a summons or a summons and complaint

may be filed by delivery or by mailing. The filing is completed

when received, except that when the method of mailing prescribed by

Rule 5(g) is used, the summons or summons and complaint are deemed

filed as of the date of mailing.

Internal inconsistencies exist within the provisions of the

Customs Courts Act of 1980 with respect to the method of commencing

two kinds of actions. The two kinds are described in 28 U.S.C. Sec.

1581(d), adjustment assistance actions, and 28 U.S.C. Sec. 1581(g),

customhouse broker license actions. Both of these are included

among those actions which are, pursuant to 28 U.S.C. Sec. 2632(a),

to be commenced by filing concurrently a summons and complaint with

the clerk of the court as prescribed by the rules of the court. The

rules of the court require the plaintiff to cause concurrent

service of the summons and complaint to be made. (See Rules 3(a)

and 4(b)).

The inconsistency pertaining to adjustment assistance actions

appears in 19 U.S.C. Sec. 2395, which requires the clerk of the

court, instead of the plaintiff, to serve a copy of the summons and

complaint upon the Secretary of Labor or Secretary of Commerce as

the case may be. The inconsistency pertaining to customhouse broker

license actions appears in 19 U.S.C. Sec. 1641(b), which provides

that an action is commenced by filing "a written petition" in the

court and further provides that a copy of the petition is to be

"transmitted by the clerk of the court to the Secretary of the

Treasury. . . ."

Until such time as the matter is resolved, the preferred

procedure to achieve uniformity and consistency and to minimize the

ambiguity created by these inconsistent statutory provisions is to

follow the provisions in Title 28. (In one unreported case, James

A. Barnhart v. United States, Court No. 81-3-00328, the court

directed plaintiff to comply with the requirements of 28 U.S.C.

Sec. 2632(a) by filing a summons and complaint notwithstanding the

fact that plaintiff had complied with the requirements of 19 U.S.C.

Sec. 1641(b) by filing a petition.)

As provided in Section 516A(a)(2) and (3) of the Tariff Act of

1930, a complaint shall be filed within 30 days after the filing of

the summons. See Georgetown Steel v. United States, 801 F.2d 1308

(Fed. Cir. 1986).

Nevertheless, counsel are encouraged to commence any action

described in Section 516A(a)(2) or (3) of the Tariff Act of 1930

and 28 U.S.C. Sec. 1581(c) by the concurrent filing of a summons

and complaint. This will serve to expedite the prosecution of the

action.

When an action is commenced, counsel should contact the Clerk's

Office not more than 24 hours prior to filing to obtain a court

number and shall endorse that court number on the summons and

complaint. Counsel for plaintiff shall be responsible for service

of the summons and complaint as prescribed in Rules 4(b), (c), (d)

and (e). Under these circumstances, the clerk of the court will not

make service of the summons as prescribed in Rule 4(a)(4).

Although this rule requires that the two agencies subject to suit

under 28 U.S.C. Sec. 1581(c) are in the first instance the subject

of separate summonses and complaints, it does not prohibit

consolidation of actions against the two agencies upon an adequate

showing of grounds for consolidation.

A party seeking to commence judicial review of an antidumping,

countervailing duty, or injury determination regarding a class or

kind of merchandise from a signatory to the North American Free

Trade Agreement should be aware of the additional notice

requirements of 19 U.S.C. Sec. 1516a(g)(3) and (4) and the separate

filing requirements of 19 U.S.C. Sec. 1516a(a)(5).

-REFTEXT-

REFERENCES IN TEXT

Sections 515, 516, and 516A of the Tariff Act of 1930, referred

to in subds. (a)(2), (e), (f)(3) to (5), and (h), are classified to

sections 1515, 1516, 1516a, respectively, of Title 19, Customs

Duties.

-End-

-CITE-

28 USC APPENDIX Rule 3.1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

TITLE II - COMMENCEMENT OF ACTION; AMENDMENT OF SUMMONS; SERVICE OF

SUMMONS, PLEADINGS, MOTIONS AND ORDERS

-HEAD-

Rule 3.1. Actions Transferred to the Court of International Trade

from a Binational Panel or Committee Pursuant to 19 U.S.C. Sec.

1516a(g)(12)(B) or (D)

-STATUTE-

(a) Filing of Request for Transfer.

(1) A copy of the request for transfer to the court under 19

U.S.C. Sec. 1516a(g)(12)(B) or (D) shall be filed with the clerk of

the court simultaneously with the filing of the request for

transfer with the United States Secretary (as defined in 19 U.S.C.

Sec. 1516a(f)(6)).

(2) When the filing of the request for transfer is made by mail,

the mailing shall be by certified or registered mail, return

receipt requested, properly addressed to the clerk of the court,

with the proper postage affixed.

(b) Notice to Interested Parties. On the same day as the filing

of a request for transfer, the party requesting transfer shall

serve a copy of the request, by certified or registered mail,

return receipt requested, upon every interested party who was a

party to the panel or committee review, except if the time period

for filing the Notice of Appearance under NAFTA Article 1904 Panel

Rule 40 or NAFTA Extraordinary Challenge Committee Rule 40 has not

expired, then service shall be upon every interested party who was

a party to the administrative proceeding.

(c) Intervention of Right.

(1) In an action transferred to the court under 19 U.S.C. Sec.

1516a(g)(12), any person who filed a Notice of Appearance under

NAFTA Article 1904 Panel Rule 40 or NAFTA Extraordinary Challenge

Committee Rule 40 shall be deemed an intervenor in the action if

otherwise entitled to intervene as of right under Rule 24 of these

rules.

(2) In an action transferred to the court under 19 U.S.C. Sec.

1516a(g)(12) in which a complaint or a Request for an Extraordinary

Challenge Committee was filed under NAFTA Article 1904 Panel Rule

39 or NAFTA Extraordinary Challenge Committee Rule 5 and in which

the time for filing a Notice of Appearance under NAFTA Article 1904

Panel Rule 40 or NAFTA Extraordinary Challenge Committee Rule 40

has not expired, anyone otherwise entitled to intervene under Rule

24 of these rules shall be permitted to intervene. A motion to

intervene shall be filed within the amount of unexpired time that

remained for filing a Notice of Appearance in the panel or

committee proceedings, or 10 days after the date of filing of the

request for transfer, whichever is later. Any time periods in which

the panel or committee proceedings were stayed shall not be counted

in computing the time for filing a motion to intervene.

(d) Documents in an Action Transferred Under 19 U.S.C. Sec.

1516a(g)(12).

(1) Within 30 days after the date of filing of the request for

transfer, the United States Secretary shall transfer to the clerk

of the court copies of all documents filed in the binational panel

review or extraordinary challenge committee review and of all

orders and decisions issued by the panel or committee.

(2) If the request for transfer is filed before the Record for

Review under NAFTA Article 1904 Panel Rule 41 is filed, the

administering authority or the International Trade Commission

shall, within 40 days after the date of filing of the request for

transfer, file with the clerk of the court the items described in

either subdivision (a) or (b) of Rule 71 of these rules.

(3) The transfer and filing of documents under paragraphs (1) and

(2) of this subdivision (d) shall be in accordance with subdivision

(c) of Rule 71 of these rules. Any documents that were filed under

seal pursuant to NAFTA Article 1904 Panel Rule 56 or NAFTA

Extraordinary Challenge Committee Rule 30 shall be treated in the

same manner as a document, comment, or information that is accorded

confidential or privileged status by the agency whose action is

being contested.

(e) Pleadings. Notwithstanding Rule 7(a) of these rules, in an

action transferred to the court under 19 U.S.C. Sec. 1516a(g)(12)

in which the plaintiff has filed a complaint under NAFTA Article

1904 Panel Rule 39, the plaintiff shall not file a new complaint in

the action before the court, except that

(1) if the time for amending a complaint in the panel proceedings

had not expired or was stayed prior to the filing of the request

for transfer, the plaintiff may file an amended complaint within

the additional time that remained for filing an amended complaint

in the panel proceedings, and

(2) in all actions, the plaintiff may amend the complaint within

10 days of the date of filing of the request for transfer to allege

counts or requests for relief that could not have been alleged

before the panel.

(f) Additional Provisions Governing Judgment Upon an Agency

Record.

(1) Except as otherwise provided in this subdivision, the

provisions of Rule 56.2 of these rules shall govern actions

transferred under 19 U.S.C. Sec. 1516a(g)(12).

(2) In an action transferred to the court under 19 U.S.C. Sec.

1516a(g)(12) in which a complaint was filed under NAFTA Article

1904 Panel Rule 39, any proposed judicial protective order shall be

filed within 21 days after the date of filing of the request for

transfer. The procedure for filing the proposed judicial protective

order shall be in accordance with Rule 56.2(a) of these rules.

(3) In an action transferred to the court under 19 U.S.C. Sec.

1516a(g)(12), the proposed briefing schedule filed under Rule

56.2(a) of these rules shall indicate whether briefs were filed in

the panel or extraordinary challenge committee proceedings.

(A) If briefs were filed in the panel or extraordinary

challenge committee proceedings, the proposed briefing schedule

shall indicate whether the parties (i) agree that those briefs

should be deemed the equivalent of the motion and briefs provided

for in Rule 56.2(d) of these rules, (ii) see any reason for the

filing of additional briefs, and (iii) agree to time periods for

filing any additional briefs.

(B) If briefs were not filed in the panel or extraordinary

challenge proceedings, or if the briefs were filed but the

parties agree that new briefs should be filed in the court, the

proposed briefing schedule shall indicate whether the parties (i)

agree to the time periods set forth in Rule 56.2(d) of these

rules, (ii) agree to time periods other than the periods set

forth in Rule 56.2(d) of these rules, or (iii) cannot agree upon

a time period. If the parties agree that new briefs should be

filed, the proposed briefing schedule shall indicate the parties'

views as to whether any briefs originally submitted to the panel

or extraordinary challenge committee should be stricken from the

record.

In the event the parties cannot agree upon any of the matters

covered by subparagraphs (A) and (B), the parties shall indicate

the areas of disagreement and shall set forth the reasons for their

respective positions.

(g) Applicability of Other Court Rules. Unless a provision of

this rule or an order of the court otherwise provides, the rules of

this court shall govern actions transferred under 19 U.S.C. Sec.

1516a(g)(12).

-SOURCE-

(Added Nov. 29, 1995, eff. Mar. 31, 1996.)

-End-