RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS · 2009-07-15 · authorizes the United States...

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

As amended through November 15, 2007

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TABLE OF CONTENTS

I. SCOPE OF RULES—ONE FORM OF ACTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4Rule 1. Scope and Purpose of Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4Rule 2. One Form of Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS, AND ORDERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4Rule 3. Commencement of Action.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4Rule 3.1 Transfers and Referrals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4Rule 4. Serving Complaints Upon the United States.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Rule 4.1 Serving Orders in Contempt Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Rule 5. Serving and Filing of Pleadings and Other Papers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Rule 5.1 Constitutional Challenge to a Statute—Notice, Certification, and

Intervention [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8Rule 5.2 Proof of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8Rule 5.3 Content of Briefs or Memoranda; Length of Briefs or Memoranda. . . . . . . . . . . . . . . . 8Rule 5.4 Form, Size, and Duplication of all Papers.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10Rule 6. Time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11Rule 6.1 Enlargements of Time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

III. PLEADINGS AND MOTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12Rule 7. Pleadings Allowed; Form of Motions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12Rule 7.1 Disclosure Statement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12Rule 7.2 Time for Filing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13Rule 8. General Rules of Pleading.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13Rule 9. Pleading Special Matters.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14Rule 10. Form of Pleadings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15Rule 11. Signing of Pleadings, Motions, and Other Papers; Representations to

Court; Sanctions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16Rule 12. Defenses and Objections—When and How Presented—By Pleading or

Motion—Motion for Judgment on Pleadings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17Rule 13. Counterclaim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19Rule 14. Third-Party Practice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19Rule 15. Amended and Supplemental Pleadings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21Rule 16. Pretrial Conferences; Scheduling; Management. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

IV. PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24Rule 17. Parties Plaintiff and Defendant; Capacity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24Rule 18. Joinder of Claims and Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24Rule 19. Joinder of Persons Needed for Just Adjudication. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25Rule 20. Permissive Joinder of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25Rule 21. Misjoinder and Non-Joinder of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26Rule 22. Interpleader [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26Rule 23. Class Actions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26Rule 23.1 Derivative Actions by Shareholders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29Rule 23.2 Actions Relating to Unincorporated Associations [Not used.]. . . . . . . . . . . . . . . . . 29

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Rule 24. Intervention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29Rule 25. Substitution of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

V. DEPOSITIONS AND DISCOVERY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30Rule 26. General Provisions Governing Discovery; Duty of Disclosure. . . . . . . . . . . . . . . . . . 30Rule 27. Depositions Before Action or Pending Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35Rule 28. Persons Before Whom Depositions May Be Taken. . . . . . . . . . . . . . . . . . . . . . . . . . . 36Rule 29. Stipulations Regarding Discovery Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37Rule 30. Depositions Upon Oral Examination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37Rule 31. Depositions Upon Written Questions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40Rule 32. Use of Depositions in Court Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41Rule 33. Interrogatories to Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42Rule 34. Production of Documents, Electronically Stored Information, and Things

and Entry Upon Land for Inspection and Other Purposes. . . . . . . . . . . . . . . . . . . . . . 43Rule 35. Physical and Mental Examinations of Persons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44Rule 36. Requests for Admission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45Rule 37. Failure to Make Disclosures or Cooperate in Discovery; Sanctions. . . . . . . . . . . . . . 46

VI. TRIALS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48Rule 38. Jury Trial of Right [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48Rule 39. Trial by Jury or by the Court [Not used.].. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49Rule 40. Setting Cases for Trial.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49Rule 40.1 Assignment and Transfer of Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49Rule 40.2 Related Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49Rule 40.3 Complaints Against Judges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50Rule 41. Dismissal of Actions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51Rule 42. Consolidation; Separate Trials. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52Rule 42.1 Motions to Consolidate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52Rule 43. Taking of Testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52Rule 44. Proof of Official Record. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53Rule 44.1 Determination of Foreign Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53Rule 45. Subpoena. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54Rule 46. Exceptions Unnecessary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56Rule 47. Selection of Jurors [Not used.].. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56Rule 48. Number of Jurors—Participation in Verdict [Not used.].. . . . . . . . . . . . . . . . . . . . . . 56Rule 49. Special Verdicts and Interrogatories [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . 56Rule 50. Judgment as a Matter of Law in Jury Trials; Alternative Motion for

New Trial; Conditional Rulings [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56Rule 51. Instructions to Jury; Objections; Preserving a Claim of Error [Not used.]. . . . . . . . . 57Rule 52. Findings by the Court; Judgment on Partial Findings.. . . . . . . . . . . . . . . . . . . . . . . . . 57Rule 52.1 Administrative Records.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57Rule 52.2 Remand; Extension or Termination of Stay of Proceedings on Remand;

Disposition of Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58Rule 53. Masters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

VII. JUDGMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61Rule 54. Judgments; Costs.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

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Rule 55. Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63Rule 56. Summary Judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63Rule 56.1 Review of Decision on the Basis of Administrative Record

[Abrogated, effective June 20, 2006.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65Rule 56.2 Remand; Extension or Termination of Stay of Proceedings on Remand;

Disposition of Case [Renumbered as RCFC 52.2, effective June 20, 2006.]. . . . . . 65Rule 57. Declaratory Judgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65Rule 58. Entry of Judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65Rule 58.1 Notice of Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66Rule 59. New Trials; Rehearings; Amendment of Judgments; Reconsideration. . . . . . . . . . . . 66Rule 60. Relief from Judgment or Order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67Rule 61. Harmless Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68Rule 62. Stay of Proceedings to Enforce a Judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68Rule 63. Inability of a Judge to Proceed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

VIII. PROVISIONAL AND FINAL REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69Rule 64. Seizure of Person or Property [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69Rule 65. Injunctions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69Rule 65.1 Security: Proceedings Against Sureties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70Rule 66. Receivers Appointed by Federal Courts [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . 71Rule 67. Deposit in Court [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71Rule 68. Offer of Judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71Rule 69. Execution [Not used.].. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71Rule 70. Judgment for Specific Acts; Vesting Title [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . 71Rule 71. Process in Behalf of and Against Persons Not Parties [Not used.]. . . . . . . . . . . . . . . 71

IX. SPECIAL PROCEEDINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71Rule 71A. Condemnation of Property [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71Rule 72. Notice of Appeal [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71Rule 73. Magistrate Judges; Trial by Consent and Appeal [Not used.]. . . . . . . . . . . . . . . . . . . 71Rule 74. Method of Appeal From Magistrate Judge to District Judge Under

Title 28 U.S.C. § 636(c)(4) and Rule 73(d) [Abrogated in FRCP.]. . . . . . . . . . . . . . 71Rule 75. Proceedings on Appeal From Magistrate Judge to District Judge

Under Rule 73(d) [Abrogated in FRCP.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71Rule 76. Judgment of the District Judge on the Appeal Under Rule 73(d) and Costs

[Abrogated in FRCP.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

X. COURT AND CLERK. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71Rule 77. Court and Clerk. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71Rule 77.1 Business Hours, Scheduling, and Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72Rule 77.2 Authorization to Act on Certain Motions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73Rule 77.3 Withdrawal of Papers and Exhibits.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73Rule 78. Motion Day [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74Rule 79. Books and Records Kept by the Clerk and Entries Therein. . . . . . . . . . . . . . . . . . . . . 74Rule 80. Record or Transcript as Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75Rule 80.1 Instructions to Reporters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

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XI. GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76Rule 81. Applicability in General [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76Rule 82. Jurisdiction and Venue Unaffected [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76Rule 83. Rules by Court of Federal Claims; Judge’s Directives. . . . . . . . . . . . . . . . . . . . . . . . . 76Rule 83.1 Attorneys. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77Rule 83.2 Rules of Disciplinary Enforcement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79Rule 83.3 Legal Assistance by Law Students. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84Rule 83.4 Advisory Council. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86Rule 84. Forms.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86Rule 85. Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86Rule 86. Effective Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

APPENDIX ACASE MANAGEMENT PROCEDURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

APPENDIX BVACCINE RULES OF THE UNITED STATES COURTOF FEDERAL CLAIMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

APPENDIX CPROCEDURE IN PROCUREMENT PROTEST CASESPURSUANT TO 28 U.S.C. § 1491(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

APPENDIX DPROCEDURE IN CONGRESSIONAL REFERENCE CASES. . . . . . . . . . . . . . . . . . . . . . . . 109

APPENDIX EELECTRONIC CASE FILING PROCEDURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

APPENDIX FPROCEDURE IN TAX PARTNERSHIP CASES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

APPENDIX GPROCEDURE IN INDIAN CLAIMS COMMISSION CASES. . . . . . . . . . . . . . . . . . . . . . . . . 123

APPENDIX HPROCEDURE FOR ALTERNATIVE DISPUTE RESOLUTION. . . . . . . . . . . . . . . . . . . . . . 124

APPENDIX IPROCEDURE IN CARRIER CASES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

APPENDIX OF FORMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133FORM 1

ADMISSION INSTRUCTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133FORM 2

COVER SHEET. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135FORM 3A

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REPORTER FORMS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138FORM 3B

CERTIFICATE OF REPORTER.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139FORM 4

BILL OF COSTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140FORM 5

EAJA FORM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141FORM 6

SUBPOENA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143FORM 7

CAPTION OF ALL FILINGS IN VACCINE CASES. . . . . . . . . . . . . . . . . . . . . . . . . 146FORM 7A

SUBPOENA IN VACCINE CASES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147FORM 8

PROTECTIVE ORDER IN PROCUREMENT PROTEST CASES. . . . . . . . . . . . . . . 150FORM 9

APPLICATION FOR ACCESS TO INFORMATION UNDERPROTECTIVE ORDER BY OUTSIDE OR INSIDE COUNSEL. . . . . . . . . . . . . . . . 154

FORM 10APPLICATION FOR ACCESS TO INFORMATION UNDERPROTECTIVE ORDER BY EXPERT CONSULTANT OR WITNESS. . . . . . . . . . . 156

FORM 11SURETY BOND FOR TEMPORARY RESTRAINING ORDEROR PRELIMINARY INJUNCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158

FORM 12SUPERSEDEAS BOND (SURETY).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

FORM 13BOND WITH COLLATERAL FORTEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION. . . . . 162

1

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

Originally effective October 1, 1982,as revised and reissued May 1, 2002,

and as amended through November 15, 2007

The United States Court of Federal Claims (formerly designated United States Claims Court) wascreated by the Federal Courts Improvement Act of 1982 (Pub. L. No. 97-164, 96 Stat. 25 (1982)). The courtinherited the jurisdiction formerly exercised by the United States Court of Claims. Title 28 U.S.C. § 2503(b)authorizes the United States Court of Federal Claims to prescribe rules of practice and procedure for itsproceedings.

The Federal Rules of Civil Procedure applicable to civil actions tried by a United States district courtsitting without a jury have been incorporated into the following rules to the extent appropriate forproceedings in this court.

2002 Rules Committee Note

In the 2002 revision, the court has endeavored to create a set of rules that conforms to the FederalRules of Civil Procedure as amended through November 30, 2001, to the extent practicable given differencesin jurisdiction between the United States district courts and the United States Court of Federal Claims.Consistent with this objective, interpretation of the court’s rules will be guided by case law and the AdvisoryCommittee Notes that accompany the Federal Rules of Civil Procedure. The court’s own Rules CommitteeNotes are intended primarily to state the source of a given rule but in some instances also to provideinterpretive guidance.

Future revisions to these rules will be posted on the court’s website at www.uscfc.uscourts.gov.

2005 Rules Committee Note

The 2005 revision extends the symmetry between these rules and the Federal Rules of CivilProcedure. Immediately after each rule, a parenthetical reference indicates the date of adoption and the datesof any amendments, commencing with the substantial revision and reordering of the rules that occurred in2002. Each rule is also followed by a Rules Committee Note or Notes explaining the basis and purpose ofthe rule as revised in 2002 and of any substantive amendments thereafter. The evolution of the court’s ruleshas been increasingly significant to the court’s work, and the addition of historical Rules Committee Notesshould aid both counsel and the court in resolving issues that may arise regarding the rules. Stylistic changesalso have been made to various rules and in a few instances, minor substantive revisions have been effected.Each substantive amendment is accompanied by a Rules Committee Note.

Historical Note

The rules of this court as initially promulgated on October 1, 1982, and as thereafter amended areset forth in the United States Claims Court Reporter and, after December 1992, in the Federal ClaimsReporter. The relevant citations to changes in the rules from their inception through 2002 are as follows:

1 Cl. Ct. XXII–CXLVI (1982) (General Order No. 3, adopting the Rules of the United StatesClaims Court, effective October 1, 1982);

http://www.uscfc.uscourts.gov

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9 Cl. Ct. XXI–CXXXVIII (1985) (General Order No. 11, adopting revised Rules of theUnited States Claims Court, effective November 1, 1985);

10 Cl. Ct. XXI (1986) (General Order No. 12, amending Rule 77(k)(2) (fee schedule),effective October 1, 1986);

12 Cl. Ct. XXV (1987) (General Order No. 14, amending Rule 77(k)(2) (fee schedule),effective May 1, 1987);

15 Cl. Ct. XXV (1989) (General Order No. 21, amending Rule 77(k)(2) (fee schedule),effective February 1, 1989);

16 Cl. Ct. XXI (1989) (General Order No. 23, adopting the Vaccine Rules of the UnitedStates Claims Court, effective January 25, 1989);

18 Cl. Ct. XIX–XXII (1990) (General Order No. 25, specifying the use of a complaint coversheet, effective January 1, 1990);

19 Cl. Ct. XIX–XXXII (1990) (General Order No. 26, adopting Appendix J to the Rules ofthe United States Claims Court and specifying the procedures for reviewing decisions of thespecial masters on claims for vaccine-related compensation, effective January 8, 1990);

22 Cl. Ct. XXIX–CLXII (1991) (General Order No. 28, adopting revised Rules of the UnitedStates Claims Court, effective March 15, 1991);

23 Cl. Ct. XXIII–XXIV (1991) (General Order No. 29, amending Appendix J to the Rulesof the United States Claims Court, effective July 1, 1991);

25 Cl. Ct. XIX–CLXVII (1992) (General Order No. 31, adopting revised Rules of the UnitedStates Claims Court, effective March 15, 1992);

26 Cl. Ct. XXVII (1992) (General Order No. 32, amending Rule 10(a) and Appendix J, ¶ 16,effective July 15, 1992);

27 Fed. Cl. XXV (1992) (General Order No. 33, recognizing the change in the name of thecourt to the United States Court of Federal Claims and redesignating the court’s rules as“RCFC,” effective December 4, 1992);

28 Fed. Cl. LII–XCII (1993) (General Order No. 34, adopting the Rules GoverningComplaints of Judicial Misconduct and Disability, effective June 2, 1993);

30 Fed. Cl. XXIII–XXIV (1994) (General Order No. 36, amending Rule 77(f), effectiveJanuary 24, 1994).

32 Fed. Cl. XXIII (1994) (General Order No. 37 concerning admission fees).

48 Fed. Cl. XXV–XXXIV (2000) (General Order 39 concerning motions for admissions;

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amending fee schedule).

51 Fed. Cl. XIII–CXCIV (2002) (adopting revised Rules of the United States Courtof Federal Claims, effective May 1, 2002).

Post-2002 Amendments

To maintain symmetry between the court’s rules and the Federal Rules of Civil Procedure, the courthas adopted a policy of regularly amending its rules to reflect parallel changes in the Federal Rules of CivilProcedure. In keeping with this policy, citation to post-2002 amendments to the revised rules of the courtare as follows:

55 Fed. Cl. XII–XVI (2003) (General Order No. 2003-42 adopting Interim Procedures for ElectronicCase Filing, effective March 17, 2003).

57 Fed. Cl. CLXXIV–CLXXV (2003) (amending fee schedule).

61 Fed. Cl. XXI (2004) (amending fee schedule).

64 Fed. Cl. XIII (2005) (Notice of Adoption amending Rule 77.1).

68 Fed. Cl. XIII–CCXXXIII (2005) (amendments to Rules 77.1, 80.1, 80.3, Appendices A to H, andForms 1, 2, 4, 6, 7A, 8, 9, 10, and 12).

72 Fed. Cl. XII–XXX (2006) (amendments to Table of Contents; Rules 7, 7.2, 52.1, 52.2,56, 56.1, 56.2, 83.1, 86; Appendix B (Vaccine Rules 9, 11, 12, 21); and Forms 1, 2, 5, 10).

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I. SCOPE OF RULES—ONE FORM OFACTION

Rule 1. Scope and Purpose of RulesThese rules govern the procedure in the

United States Court of Federal Claims in all suits.They shall be construed and administered to securethe just, speedy, and inexpensive determination ofevery action.

(As revised and reissued May 1, 2002.)

Rules Committee Note2002 Revision

The Rules of the United States Court ofFederal Claims are drawn under the authority of 28U.S.C. §§ 2071(a), (c); 2503(b) (generally);2521(a) (subpoena and incidental powers). Theserules may be cited as “RCFC.” Rule 1 has beenrevised to: (i) reflect the change in the court’sname; (ii) eliminate, as no longer necessary, theprevious reference to proceedings pending in thecourt on October 1, 1982, the year of the court’sestablishment; (iii) incorporate the 1993 revision toRule 1 of the Federal Rules of Civil Procedure(FRCP) emphasizing that the rules are to be bothconstrued and administered to ensure that civillitigation is resolved not only fairly, but withoutundue cost and delay; (iv) delete subdivision (a)(3)for consistency with the FRCP (while retaining thesubstance of this provision in RCFC 83(b), whichis modeled on FRCP 83(b)); and (v) movesubdivision (b) to the preamble, because it isexplanatory rather than prescriptive.

Rule 2. One Form of ActionThere shall be one form of action to be known

as a "civil action."



RCFC 2 is identical to its FRCP counterpart.

II. COMMENCEMENT OF ACTION;SERVICE OF PROCESS, PLEADINGS,

MOTIONS, AND ORDERS

Rule 3. Commencement of ActionA civil action is commenced by filing a

complaint with the court. See RCFC 40.2(a).



In the interest of achieving greater uniformitywith the corresponding FRCP, a number of changeshave been made to RCFC 3. First, formersubdivision (a) was fully conformed to the FRCP;the reference to RCFC 40.2 calls attention to thiscourt’s “related case” rule. Second, formersubdivision (b), which addressed disputesregarding filing dates, was deleted—both in theinterest of uniformity and in the belief that it wasinappropriate to include a rule of decision as partof a procedural rule. Third, former subdivision (c)(prescribing a cover sheet and identifying thenumber of copies required for filing) was moved toRCFC 5.3(d).

Rule 3.1 Transfers and Referrals(a) Transfers From Other Courts.

(1) Filing and Fee. When the transfer ofa case from another court to this court ispermitted by law, including compliance with28 U.S.C. §1292(d)(4)(B), the case shall befiled in this court upon the receipt by the clerkof a certified copy of the record made in theother court, including the order of that courtgranting the transfer. The clerk shall serve anotice of this filing on the parties as providedin RCFC 5. Where all required fees in theother court are shown to have been paid, nofiling fee will be required.

(2) Complaint; Copies. Eight copies ofthe complaint filed in the other court,containing the necessary changes in thecaption and duplicated in conformity withRCFC 5.4, shall be filed with the clerk within28 days after the filing required in subdivision

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(a)(1). In lieu thereof and within the sametime period, an original and 7 copies of anamended complaint may be filed inconformity with the rules of this court, settingforth the claim or claims transferred. Serviceshall be made on the United States asprovided in RCFC 4.

(3) Procedure. After the filing andservice as provided for in subdivision (a)(2),all further proceedings shall be in accordancewith the rules prescribed for cases filed in thiscourt in the first instance.(b) Referral of Cases by the Comptroller

General. (1) Service of Notice; Time for

Response. Upon the filing of a case referredto the court by the Comptroller General, theclerk shall serve a notice, as provided inRCFC 5, on each person whose name andaddress are shown by the papers transmittedand who appears to be interested in thesubject matter of the reference, which noticeshall set forth the filing of the reference andstate that the person notified appears to havean interest therein and that such person shallhave 90 days after such service within whichto appear and assert such person's claim byfiling a complaint. At the same time, the clerkshall forward a copy of each such notice to theAttorney General.

(2) Procedure After Notice. After theservice of a notice upon the interested personor persons, all further proceedings for thedisposition of the case shall be in accordancewith the rules prescribed herein for othercases.

(3) Failure of Party to Appear. If nointerested plaintiff appears to file a complaintwithin the time specified in the notice servedby the clerk, the case shall be submitted to thecourt upon the papers filed and upon suchevidence, if any, as may be produced by theAttorney General.



RCFC 3.1 has no FRCP counterpart. The ruleformerly appeared in these rules as RCFC 84. Therenumbering of RCFC 84 was intended to reflectits more logical placement in the organizationalstructure of the court’s rules.

Rule 4. Serving Complaints Upon the UnitedStates

(a) Service Upon the United States. Serviceof the complaint upon the United States shall bemade through the delivery by the clerk to theAttorney General, or to an agent designated byauthority of the Attorney General, of copies of thecomplaint in numbers prescribed by subdivision(b).

(b) Copies. The clerk shall serve on theAttorney General, or his designated agent, 5 copiesof the complaint.

(c) Proof and Date of Service. At the timethe clerk serves a complaint, the clerk shall enterthe fact of service on the docket, and such entryshall be prima facie evidence of service. For thepurposes of this rule, the date of service shall bethe date of filing with the clerk.



The title of RCFC 4 has been changed to moreclosely conform to FRCP 4(i). Other provisions ofFRCP 4(i)—those dealing with service uponagencies, corporations, or officers of the UnitedStates—have not been made a part of this court’sRCFC 4 because, in this court (with the exceptionof vaccine cases), only the United States isproperly the named defendant. See RCFC 10(a).

Rule 4.1 Serving Orders in ContemptProceedings

An order initiating a contempt proceedingdirected at a person other than a party shall beserved by a United States marshal, a deputy UnitedStates marshal, or a person specially appointed forthat purpose, who shall deliver a copy of the order

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to the person named therein. Proof of such serviceshall be as provided in RCFC 45(b)(3). All otherorders relating to contempt proceedings shall beserved in the manner prescribed in RCFC 4 (ifagainst an agent or attorney of the United States) orin RCFC 5 (if against a plaintiff, a plaintiff’srepresentative, or a non-party).



New RCFC 4.1 implements the contemptauthority granted to this court by § 910 of theFederal Courts Administration Act of 1992, Pub. L.No. 102-572, 106 Stat. 4506, 4519-20. Thatsection, now codified at 28 U.S.C. § 2521(b), (c)(1994), reads in relevant part as follows:

(b) The United States Court ofFederal Claims shall have power topunish by fine or imprisonment, at itsdiscretion, such contempt of its authorityas—

(1) misbehavior of anyperson in its presence or sonear thereto as to obstruct theadministration of justice;

(2) misbehavior of any ofits officers in their officialtransactions; or

(3) disobedience orresistance to its lawful writ,process, order, rule, decree orcommand.(c) The United States Court of

Federal Claims shall have assistance inthe carrying out of its lawful writ,process, order, rule, decree, or commandas is available to a court of the UnitedStates. The United States marshal forany district in which the Court of FederalClaims is sitting shall, when requested bythe chief judge of the Court of FederalClaims, attend any session of the Courtof Federal Claims in such district.The rule adopts the mode of service specified

in FRCP 4.1, which requires that service of

process, other than a summons, be effected uponnon-parties through means more formal thanmailing. See generally FRCP 4.1 AdvisoryCommittee Notes (recognizing a distinction inservice requirements between parties and non-parties); I.A.M. Nat’l Pension Fund v. WakefieldIndus., 699 F.2d 1254, 1259-62 (D.C. Cir. 1983)(discussing service of contempt orders).

Rule 5. Serving and Filing of Pleadings andOther Papers

(a) Service: When Required. Except asotherwise provided in these rules, every orderrequired by its terms to be served, every pleadingsubsequent to the original complaint unless thecourt otherwise orders, every paper relating todiscovery required to be served upon a party unlessthe court otherwise orders, every written motion,and every written notice, appearance, demand,offer of judgment, designation of record on appeal,and similar paper shall be served upon each of theparties.

(b) Making Service. (1) Service under RCFC 5(a) and 77(d)

on a party represented by an attorney is madeon the attorney unless the court orders serviceon the party.

(2) Service under RCFC 5(a) is made by:(A) Delivering a copy to the person

served by:(i) handing it to the person;(ii) leaving it at the person’s

office with a clerk or other personin charge, or if no one is in chargeleaving it in a conspicuous place inthe office; or

(iii) if the person has no officeor the office is closed, leaving it atthe person’s dwelling house orusual place of abode with someoneof suitable age and discretionresiding there.(B) Mailing a copy to the last

known address of the person served.Service by mail is complete on mailing.

(C) If the person served has noknown address, leaving a copy with the

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clerk of the court.(D) Delivering a copy by any other

means, including electronic means,consented to in writing by the personserved. Service by electronic means iscomplete on transmission; service byother consented means is complete whenthe person making service delivers thecopy to the agency designated to makedelivery. (3) Service by electronic means under

RCFC 5(b)(2)(D) is not effective if the partymaking service learns that the attemptedservice did not reach the person to be served.(c) Same: Numerous Defendants. [Not

used.](d) Filing; Certificate of Service. All papers

after the complaint required to be served upon aparty, together with a certificate of service, mustbe filed with the court within a reasonable timeafter service, but disclosures under RCFC 26(a)(1)or (2) and the following discovery requests andresponses must not be filed until they are used inthe proceeding or the court orders filing: (i)depositions, (ii) interrogatories, (iii) requests fordocuments or to permit entry upon land, and (iv)requests for admission, except that depositionsupon oral examination and notices thereof, writtenquestions, interrogatories, requests for documents,requests for admission, and answers and responsesthereto, and other related discovery materials shallnot be filed unless on order of the court. See RCFC83.

(e) Filing With the Court Defined. The filingof papers with the court as required by these rulesshall be made by filing them with the clerk of thecourt, except that the judge may permit the papersto be filed with the judge, in which event the judgeshall note thereon the filing date and forthwithtransmit them to the clerk’s office. The courtrequires filing by electronic means, subject toreasonable exceptions, as provided by Appendix Eto these rules. A filing by electronic means incompliance with Appendix E constitutes a writtenpaper for the purpose of applying these rules. Theclerk shall not refuse to accept for filing any paperpresented for that purpose solely because it is not

presented in proper form as required by these rules.

(As revised and reissued May 1, 2002; as amendedNovember 15, 2007.)

Rules Committee Notes2002 Revision

The changes made to RCFC 5 were intendedto bring the rule into closer conformity withFRCP 5. Thus, in addition to a change insequence, changes in text include the following:

First, the text of subdivision (b) has beenmodified to reflect the December 1, 2001, changesto the FRCP which significantly affect organizationand which also make possible consensual serviceby electronic means. In addition, the clause “butfiling is not” has been deleted from the lastsentence of that subdivision. The deleted languagewas not in conformity with the FRCP. Filing is notcomplete on mailing; filing is controlled bysubdivisions (d) and (e) of this rule.

Second, subdivision (e) adopts the language ofthe FRCP recognizing the appropriateness ofpermitting papers to be “filed, signed, or verifiedby electronic means that are consistent withtechnical standards, if any, that the JudicialConference of the United States establishes.” Itshould be noted that no decision has yet been madeby the court to implement electronic filing. Such adecision, when made, will be accomplishedthrough an amendment to the rules. Until theissuance of such amendment, the clerk’s office willnot accept electronic filings. Individual chambers,however, may allow counsel to transmit “courtesy”copies of filed documents by electronic means.*

Third, subdivision (e) also adds the finalsentence from FRCP 5(e) stating that “[t]he clerkshall not refuse to accept for filing any paperpresented for that purpose solely because it is notpresented in proper form as required by theserules.” The addition of this language to the rulewas not intended to alter the court’s practice oftreating all non-conforming complaints as filedupon receipt in the clerk’s office while referringother non-conforming papers received in theclerk’s office to a judge for instructions as towhether to permit their filing or to require

8

counsel’s correction of the papers’ defects.Finally, former subdivision (e), titled “Proof

of Service,” no longer appears in FRCP 5. In orderto conform more closely to FRCP 5, formersubdivision (e) was deleted from this rule and nowappears as RCFC 5.1. _______________* On March 17, 2003, the court adopted GeneralOrder No. 42A instituting an interim programrequiring electronic filing for some cases. Thecourt anticipates that electronic filing procedureswill be incorporated into the rules.

2007 AmendmentRCFC 5 has been amended to reflect the

court’s requirement of filing by electronic meanssubject to reasonable exceptions. The amendmentreflects the development of electronic filing andparallels a similar change in FRCP 5(e).

Rule 5.1 Constitutional Challenge to aStatute—Notice, Certification, and Intervention[Not used.]

Rule 5.2 Proof of Service(a) Service shall be made by the party,

attorney of record, or any other person acting underthe attorney of record's direction. The personmaking service shall execute a certificate of servicethat contains the following information:

(1) the day and manner of service;(2) the person and/or entity served;

and(3) the method of service employed,

e.g., personal, mail, substituted, etc.(b) The certificate of service shall be attached

at the end of the original document, includingappendices, and copies thereof. If service otherthan by mail is used and it is impractical to attachthe certificate at the time of filing, such certificatemay be filed subsequently.

(c) The certificate may at any time beamended or supplied unless to do so would resultin material prejudice to the substantial rights of anyparty.

(As revised and reissued May 1, 2002; as

renumbered November 15, 2007.)


RCFC 5.1 has no FRCP counterpart. The textof this rule formerly appeared as subdivision (e) offormer RCFC 5.

2007 AmendmentRCFC 5.2 formerly appeared in these rules as

RCFC 5.1 and has been renumbered in light of theadoption of FRCP 5.1, effective December 1, 2006,to preserve the consistency in numbering systemsbetween the court’s rules and the FRCP.

Rule 5.3 Content of Briefs or Memoranda;Length of Briefs or Memoranda

(a) Content of Briefs or Memoranda. (1) Initial Brief or Memorandum.

Except in briefs or memoranda of 10 pages orless or pretrial filings under Appendix A, thefirst brief or memorandum due shall contain,under proper headings and arranged in thefollowing order:

(A) a table of contents, includingthe specific contents of any appendix orappendices to the brief or memorandum,listing the various items in the appendix,including the number and description ofevery item and exhibit that is beingreproduced, together with the number ofthe page at which the item appears;

(B) a table of constitutionalprovisions, treaties, statutes, regulations,and cases cited, giving the volume andpage in the official edition where theymay be found, and arranging the cases inalphabetical order (All United StatesClaims Court and United States Court ofFederal Claims orders and opinionspublished in either the United StatesClaims Court Reporter or the FederalClaims Reporter shall be cited to thosereporters.);

(C) a succinct statement of thequestions involved, setting forth eachquestion separately;

9

(D) a concise statement of the case,containing all that is material to theconsideration of the questions presented,with appropriate reference to specificfindings, the stipulation of facts, or otherpertinent portions of the record, andsetting out verbatim in the brief ormemorandum or in an appendix theretothe pertinent portions of constitutionalprovisions, treaties, statutes, andregulations, as well as the texts of alladministrative decisions directlyinvolved in the case, unless previouslyreproduced in or as an exhibit to thecomplaint; the appendix or appendices tothe brief or memorandum shall benumbered consecutively withinthemselves so as to enable the court moreeasily to find and read the material in theappendix or appendices;

(E) the argument, exhibiting clearlythe points of fact and of law beingpresented and citing the authorities reliedupon;

(F) a conclusion, indicating therelief sought; and

(G) if an appendix is used and is notincorporated into the same volume as thebrief, there shall be, at the beginning ofthe appendix, a table of contents or indexlisting the various items in the appendix,including the number and description ofevery exhibit which is being reproduced,together with the number of the page ofthe appendix at which the item begins.(2) Opposing Brief or Memorandum.

An opposing or answering brief ormemorandum shall conform to therequirements set out in subdivision (a)(1),except that the items referred to insubparagraphs (C) and (D) of that subdivisionneed not be included unless the party isdissatisfied with the presentation by the otherside.

(3) Reply Brief or Memorandum. Areply brief or memorandum shall conform tothe requirements of subdivision (a)(2).

(4) General. Briefs or memoranda mustbe compact, concise, logically arranged, andfree from burdensome, irrelevant, immaterial,and scandalous matter. Briefs or memorandanot complying with this rule may bedisregarded by the court.(b) Length of Briefs or Memoranda.

(1) Except by leave of the court onmotion, a party’s initial brief or memorandumshall not exceed 40 pages (50 pages for across-movant) by any process of duplicatingor copying, exclusive of (A) pages containingtables of contents, citations to constitutionalprovisions, treaties, statutes, regulations, andcases, and (B) any appendix setting outverbatim the pertinent portions ofconstitutional provisions, treaties, statutes,regulations, agency or board decisions, courtdecisions, excerpts from transcripts oftestimony, and documentary exhibits.

(2) Except by leave of the court onmotion, reply briefs or` memoranda shall notexceed 20 pages by any process of duplicationor copying or 30 pages where a response to amotion is included.

(3) A brief or memorandum previouslyfiled may not be incorporated by reference;any such incorporation will be disregarded. Aparty wishing to rely upon a previously filedbrief or memorandum may do so byreproducing in an appendix either (A)excerpts thereof now relied upon, or (B) theentire brief or memorandum. In either event,the party shall identify the total number ofpages considered pertinent in a footnote,which is to appear on the first page of thebrief or memorandum. The pages so identifiedshall be included in the maximum allowablelength set forth in subdivisions (1) and (2).

(As revised and reissued May 1, 2002; asrenumbered November 15, 2007.)


RCFC 5.2 has no FRCP counterpart. The ruleformerly appeared in these rules as RCFC 83.1.

10

The renumbering of RCFC 83.1 was intended toreflect its more logical placement in theorganizational structure of the court’s rules.

Several changes have been made to the rule;they include:

First, the deletion from subdivision (a) oflanguage identifying the plaintiff’s brief ormemorandum as “the first brief or memorandum”normally to be filed.

Second, subparagraphs (A) and (G) ofsubdivision (a) were revised to indicate that anyindex to a separate appendix should be includedboth at the beginning of the appendix and at thebeginning of the accompanying brief ormemorandum.

Third, subdivision (b)(4), relating to “a motionfor leave to exceed the page limitation,” wasdeemed unduly burdensome and was thereforestricken.


RCFC 5.2 and has been renumbered in light of theadoption of FRCP 5.1, effective December 1, 2006,to preserve the consistency in numbering systemsbetween the court’s rules and the FRCP.

Rule 5.4 Form, Size, and Duplication of allPapers

(a) General. All papers filed with the clerkshall conform with these rules as to methods ofduplication, form, size, and number.

(b) Duplication. All requirements ofduplication may be satisfied by the use of anyphotocopy method capable of producing a clear,black image on white paper, provided that in eachinstance the duplication shall conform to therequirements of subdivision (c) as to paper, size,form, and pagination.

(c) Form and Size. All papers pursuant to theprovisions of this rule shall be duplicated on pagesnot exceeding 8 ½ by 11 inches, with type matteron all papers other than exhibits to be of letterquality. Type size for both text and footnotes shallnot be smaller than 12 point and margins shall notbe less than 1" on all sides. Papers duplicated shallbe double spaced, except that quoted and indentedmaterial and footnotes may be single spaced, and,

if covering both sides of the sheet, shall beduplicated on paper of sufficient quality that theduplication process does not bleed through thesheet. Except for submissions of fewer than 50pages, which may be stapled in the upper left-handmargin, all submissions must be bound or attachedalong the entire left margin in book form and shallhave legible margins when bound or attached.Such pages need not be justified on the rightmargin. All pages, including appendices, shall benumbered. Page numbers shall be in large, distincttype and shall appear in the center of the bottommargin of the page.

(d) Number of Copies. Plaintiff shall file anoriginal and 7 copies of the complaint, the originalof which shall be accompanied by the completedcover sheet as shown in the Appendix of Forms(Form 2) utilizing the Cover Sheet Information.Except as provided in RCFC 58.1, the parties shallfile an original and 2 copies of each other paperrequired by these rules to be filed with the clerk.In congressional reference cases, an original and 4copies of each such paper shall be filed. All copiesshall be identical, or otherwise conformed, to theoriginal.

(e) Date. Each paper shall bear the date it issigned on the signature page.

(f) Telephone and Facsimile Numbers. Thetelephone and facsimile numbers (including areacode) of the attorney of record must appear beneaththe signature line of every pleading or other paper.

(g) Name of Judge. In pleadings and papersother than the complaint, the name of the judgeassigned to the case shall be included under thedocket number.

(h) Bid Protest Cases. In all pleadings andpapers, the words “Bid Protest” shall be includedin the caption under the name of the court.

(As revised and reissued May 1, 2002; as amendedJuly 1, 2004; as renumbered November 15, 2007.)


New RCFC 5.3 has no FRCP counterpart.The rule formerly appeared in these rules as RCFC82 and 83. The consolidation and renumbering of

11

RCFC 82 and 83 were intended to reflect theirmore logical placement in the organizationalstructure of the court’s rules.

In addition to the renumbering, the text offormer RCFC 82 has been modified in severalrespects: First, subdivision (a) has been modifiedby deleting the last sentence of that subdivisionwhich read, “[t]he clerk shall refuse to file anypaper which is not in substantial conformity withthis rule or not in clear type.” The deletioncorresponds to the change made in RCFC 5(e)directing that “[t]he clerk shall not refuse to acceptfor filing any paper presented for that purposesolely because it is not presented in proper form.”However, as noted in the Advisory CommitteeNote to FRCP 5(e), the “clerk may of course advisea party or counsel that a particular instrument is notin proper form, and may be directed to so informthe court.”

Second, subdivision (c) has been modified toeliminate certain redundancies, to fix the type size,and to clarify binding and pagination requirements.Appendices will now be subject to pagination. Thebinding requirement changes were intended todiscourage rubber bands, paper clips, and othernon-secure binding.

Third, former subdivision (e), now subdivision(f), has been amended to include a requirementlisting a facsimile number for the attorney ofrecord.

Fourth, subdivision (d) was added to this ruleto incorporate the “number of copies” requirementthat formerly appeared as RCFC 83, as well as therequirement formerly found in RCFC 3(c)regarding the number of copies to be filed whenfiling a complaint.

Finally, subdivision (g) was also added. Thetext of this subdivision formerly appeared as partof RCFC 10(a).

2004 AmendmentSubdivision (h) has been added to the text of

RCFC 5.3 to facilitate case management andadministrative record-keeping requirements.


RCFC 5.3 and has been renumbered in light of the

adoption of FRCP 5.1, effective December 1, 2006,to preserve the consistency in numbering systemsbetween the court’s rules and the FRCP.

Rule 6. Time(a) Computation. In computing any period of

time prescribed or allowed by these rules, by orderof court, or by any applicable statute, the day of theact, event, or default from which the designatedperiod of time begins to run shall not be included.The last day of the period so computed shall beincluded, unless it is a Saturday, a Sunday, or alegal holiday, or, when the act to be done is thefiling of a paper in court, a day on which weatheror other conditions have made the clerk's officeinaccessible, in which event the period runs untilthe end of the next day which is not one of theaforementioned days. When the period of timeprescribed or allowed is less than 11 days,intermediate Saturdays, Sundays, and legalholidays shall be excluded in the computation. Asused in this rule and in RCFC 77(c), “legalholiday” includes New Year's Day, InaugurationDay, 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 appointed as a holiday by thePresident or the Congress of the United States.

(b) Enlargement. When by these rules or bya notice given thereunder or by order of court anact is required or allowed to be done at or within aspecified time, the court for cause shown may atany time in its discretion (1) with or withoutmotion or notice order the period enlarged ifrequest therefor is made before the expiration ofthe period originally prescribed or as extended bya previous order, or (2) upon motion made after theexpiration of the specified period permit the act tobe done where the failure to act was the result ofexcusable neglect; but it may not extend the timefor taking any action under RCFC 52(b), 54(d)(1),59(b), (d), and (e), and 60(b), except to the extentand under the conditions stated in them.

(c) Unaffected by Expiration of Term.[Rescinded in federal rule.]

(d) For Motions—Affidavits. [Not used.](e) Additional Time After Certain Kinds of

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Service. Whenever a party must or may act withina prescribed period after service and service ismade under RCFC 5(b)(2)(B), (C), or (D), 3 daysare added after the prescribed period wouldotherwise expire under subdivision (a).

(As revised and reissued May 1, 2002; as amendedJune 20, 2006.)


RCFC 6 has been changed to conform toFRCP 6. In particular, that part of subdivision (b)which formerly specified the content of motions forenlargement has been moved to a new RCFC 6.1,“Enlargements of Time.”

2006 AmendmentSubdivision (e) has been amended to reflect

the corresponding changes to FRCP 6(e) thatbecame effective December 1, 2005.

Rule 6.1 Enlargements of TimeEvery motion for enlargement of time must set

forth therein the specific number of additional daysrequested, the day to which the enlargement is torun, the extent to which the time for theperformance of the particular act has beenpreviously enlarged, and the reason or reasonsupon which the motion for enlargement is based.Motions for enlargement of time must include arepresentation that the moving party has discussedthe motion with opposing counsel and a statementindicating whether an opposition will be filed, or,if opposing counsel cannot be consulted, anexplanation of the efforts that were made to do so.



New RCFC 6.1 has no FRCP counterpart.The text of the new rule formerly appeared in theserules as part of RCFC 6(b). However, the languagein former RCFC 6(b), which addressed the contentof the reasons offered in support of a motion forenlargement of time, has been stricken asunnecessary.

III. PLEADINGS AND MOTIONS

Rule 7. Pleadings Allowed; Form of Motions(a) Pleadings. There shall be a complaint and

an answer; if the answer contains a counterclaim oroffset or a plea of fraud, there shall be a replythereto. There shall be such third-party pleadingsas are permitted by RCFC 14. No other pleadingshall be allowed, except that the court may order areply to an answer or to a third-party answer.

(b) Motions and Other Papers. (1) An application to the court for an

order shall be by motion which, unless madeduring a hearing or trial, shall be made inwriting, shall state with particularity thegrounds therefor, and shall set forth the reliefor order sought. Any motion, objection, orresponse may be accompanied by a brief ormemorandum and, if necessary, supportingaffidavits that shall be attached to the motion.Any motion may be accompanied by aproposed order.

(2) The rules applicable to captions andother matters of form of pleadings apply to allmotions and other papers provided for bythese rules. See RCFC 5.2, 5.3, 5.4, and 10(a).

(3) All motions shall be signed inaccordance with RCFC 11. (c) Demurrers, Pleas, etc., Abolished.

Demurrers, pleas, and exceptions for insufficiencyof a pleading shall not be used.



Minor grammatical changes have beenintroduced.

Rule 7.1 Disclosure Statement(a) Who Must File: Nongovernmental

Corporate Party. A nongovernmental corporateparty to an action or proceeding in this court mustfile two copies of a statement that identifies anyparent corporation and any publicly held

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corporation that owns 10% or more of its stock orstates that there is no such corporation.

(b) Time for Filing; Supplemental Filing.A party must:

(1) file the RCFC 7.1(a) statement withits first appearance, pleading, petition, motion,response, or other request addressed to thecourt; and

(2) promptly file a supplementalstatement upon any change in the informationthat the statement requires.

(As added September 15, 2003.)

Rules Committee Note2003 Adoption

RCFC 7.1 has been added to correspond to theadoption of the same rule in the FRCP.

Rule 7.2 Time for Filing(a) Responses and Objections. Unless

otherwise provided in these rules or by order of thecourt, responses or objections to written motionsshall be filed within 14 days after service of themotion.

(b) Replies. Replies to responses or objectionsshall be filed within 7 days after service of theresponse or objection.

(c) Motions Under RCFC 12(b), 12(c), 52.1and 56. Responses to these motions shall be filedwithin 28 days after service of the motion andreplies thereto within 14 days after service of theresponse.

(d) Leave of Court. If the subject filing ispursuant to leave of court on motion by a party, thetime for any response shall run from the date offiling and not from the date of service.

(e) Cross-motions. Where the respondingparty files a cross-motion, it shall be contained inthe same document as the response to the originalmotion; the response to the cross-motion shall becontained in the same document as the reply,subject to the page limitations in RCFC 5.3(b)(2).Where a cross-motion is filed, the parties shallhave the same amount of time to respond and replyto the cross-motion as to an original motion.

(As revised and reissued May 1, 2002; as amendedSeptember 15, 2003, June 20, 2006.)

Rules Committee Notes2002 Revision and 2003 Amendment

RCFC 7.2 has no FRCP counterpart. The ruleformerly appeared in these rules as RCFC 83.2 and,following the court’s May 1, 2002, revision of itsrules, as RCFC 7.1. The first renumbering of therule (from RCFC 83.2 to RCFC 7.1) was intendedto reflect its more logical placement in theorganizational structure of the court’s rules; thesecond renumbering (from RCFC 7.1 to RCFC 7.2)accommodates the court’s adoption of FRCP 7.1effective December 1, 2002, and preserves theconsistency in numbering systems between thecourt’s rules and the FRCP.

2006 AmendmentA cross-reference in subdivision (c) was

revised to accord with the addition of RCFC 52.1.

Rule 8. General Rules of Pleading(a) Claims for Relief. A pleading which sets

forth a claim for relief, whether an original claim,counterclaim, or third-party claim, shall contain (1)a short and plain statement of the grounds uponwhich the court's jurisdiction depends, unless thecourt already has jurisdiction and the claim needsno new grounds of jurisdiction to support it, (2) ashort and plain statement of the claim showing thatthe pleader is entitled to relief, and (3) a demandfor judgment for the relief the pleader seeks.Relief in the alternative or of several differenttypes may be demanded.

(b) Defenses; Form of Denials. A party shallstate in short and plain terms the party's defenses toeach claim asserted and shall admit or deny theaverments upon which the adverse party relies. If aparty is without knowledge or informationsufficient to form a belief as to the truth of anaverment, the party shall so state and this has theeffect of a denial. Denials shall fairly meet thesubstance of the averments denied. When a pleaderintends in good faith to deny only a part or aqualification of an averment, the pleader shallspecify so much of it as is true and material andshall deny only the remainder. Unless the pleaderintends in good faith to controvert all theaverments of the preceding pleading, the pleadermay make denials as specific denials of designatedaverments or paragraphs or may generally deny all

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the averments except such designated averments orparagraphs as the pleader expressly admits; but,when the pleader does so intend to controvert all itsaverments, including averments of the groundsupon which the court's jurisdiction depends, thepleader may do so by general denial subject to theobligations set forth in RCFC 11.

(c) Affirmative Defenses. In pleading to apreceding pleading, a party shall set forthaffirmatively accord and satisfaction, arbitrationand award, assumption of risk, contributorynegligence, discharge in bankruptcy, duress,estoppel, failure of consideration, fraud, illegality,laches, license, payment, release, res judicata,statute of frauds, statute of limitations, waiver, andany other matter constituting an avoidance oraffirmative defense. When a party has mistakenlydesignated a defense as a counterclaim or acounterclaim as a defense, the court on terms, ifjustice so requires, shall treat the pleading as ifthere had been a proper designation.

(d) Effect of Failure to Deny. Averments ina pleading to which a responsive pleading isrequired, other than those as to the amount ofdamage, are admitted when not denied in theresponsive pleading. Averments in a pleading towhich no responsive pleading is required orpermitted shall be taken as denied or avoided.

(e) Pleading to Be Concise and Direct;Consistency.

(1) Each averment of a pleading shall besimple, concise, and direct. No technicalforms of pleading or motions are required.

(2) A party may set forth two or morestatements of a claim or defense alternately orhypothetically, either in one count or defenseor in separate counts or defenses. When twoor more statements are made in the alternativeand one of them if made independently wouldbe sufficient, the pleading is not madeinsufficient by the insufficiency of one ormore of the alternative statements. A partymay also state as many separate claims ordefenses as the party has regardless ofconsistency and whether based on legal orequitable grounds. All statements shall bemade subject to the obligations set forth inRCFC 11.(f) Construction of Pleadings. All pleadings

shall be so construed as to do substantial justice.



Minor changes have been made insubdivisions (b) and (c) to conform to FRCP 8. Inaddition, subdivision (c) was amended to requirethe pleading, as an affirmative defense, ofassumption of risk and contributory negligence.Although these defenses are typically associatedwith tort claims (i.e., with claims outside thiscourt’s jurisdiction), there can be circumstances inwhich reliance on these defenses would beappropriate, for example, in congressionalreference cases, in some aspects of contractlitigation, and with respect to counterclaimsasserted pursuant to 28 U.S.C. § 2508.

Rule 9. Pleading Special Matters(a) Capacity. It is not necessary to aver the

capacity of a party to sue or be sued or theauthority of a party to sue or be sued in arepresentative capacity or the legal existence of anorganized association of persons that is made aparty, except to the extent required to show thejurisdiction of the court. When a party desires toraise an issue as to the legal existence of any partyor the capacity of any party to sue or be sued or theauthority of a party to sue or be sued in arepresentative capacity, the party desiring to raisethe issue shall do so by specific negative averment,which shall include such supporting particulars asare peculiarly within the pleader's knowledge.

(b) Fraud, Mistake, Condition of the Mind.In all averments of fraud or mistake, thecircumstances constituting fraud or mistake shallbe stated with particularity. Malice, intent,knowledge, and other condition of mind of aperson may be averred generally.

(c) Conditions Precedent. In pleading theperformance or occurrence of conditions precedent,it is sufficient to aver generally that all conditionsprecedent have been performed or have occurred.A denial of performance or occurrence shall bemade specifically and with particularity.

(d) Official Document or Act. In pleading anofficial document or official act it is sufficient to

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aver that the document was issued or the act donein compliance with law.

(e) Judgment. In pleading a judgment ordecision of a domestic or foreign court, judicial orquasi-judicial tribunal, or of a board or officer, it issufficient to aver the judgment or decision withoutsetting forth matter showing jurisdiction to renderit.

(f) Time and Place. For the purpose of testingthe sufficiency of a pleading, averments of timeand place are material and shall be considered likeall other averments of material matter.

(g) Special Damage. When items of specialdamage are claimed, they shall be specificallystated.

(h) Special Matters Required in Complaint.The complaint shall include:

(1) Action by Other Tribunal or Body.Any action on the claim taken by Congress orby any department or agency of the UnitedStates or in any judicial proceeding, includingany in the Tax Court of the United States.

(2) Citations of Statutes, Regulations,Orders. A clear citation of the Act ofCongress, regulation of an executivedepartment or agency, or Executive Order ofthe President, where the claim is foundedupon such an act, regulation, or order.

(3) Contracts or Treaties. If the claim isfounded upon a contract or treaty with theUnited States, a description of the contract ortreaty sufficient to identify it. In addition, theplaintiff shall plead the substance of thoseportions of the contract or treaty on which theplaintiff relies or shall annex to the complainta copy of the contract or treaty, indicating theprovisions thereof on which the plaintiffrelies.

(4) Patent Suits. In any patent suit, theclaim or claims of the patent or patentsalleged to be infringed.

(5) Ownership of Claim; Assignment.If the plaintiff is the owner by assignment orother transfer of the claim, in whole or in part,when and upon what consideration theassignment or transfer was made.

(6) Tax Refund Suits. In any action forrefund of federal tax, for each tax year orperiod for which a refund is sought, the

amount, date, and place of each payment to berefunded; the date and place the return, if any,was filed; the name, address, andidentification number of the taxpayer ortaxpayers appearing on the tax return; thedate and place the claim for refund was filed;and the identification number for eachplaintiff, if different from the identificationnumber of the taxpayer. A copy of the claimfor refund shall be annexed to the complaint.

(7) Inverse Condemnation Suits. Inany action for the payment of justcompensation pursuant to the FifthAmendment to the United States Constitution,identification of the specific property interestthat plaintiff contends has been taken by theUnited States.



Subdivision (a) (relating to “Capacity”) hasbeen changed to conform to FRCP 9.

Subdivision (h)(6) (relating to specialrequirements applicable to complaints in “TaxRefund Suits”) was amended by prescribing, asadditional information to be included as part of atax refund complaint, the following: (i) thetaxpayer’s or filer’s identification number; and (ii)a copy of the claim for refund.

Subdivision (h)(7) was added as a means toclarify the nature of the property interest assertedto have been taken in an inverse condemnationaction.

Rule 10. Form of Pleadings(a) Caption; Names of Parties. Every

pleading shall contain a caption setting forth thename of the court, the title of the action, the filenumber, and a designation as in RCFC 7(a). In thecomplaint the title of the action shall include thenames of all the parties (see RCFC 20(a)), theUnited States being designated as the partydefendant, but in other pleadings it is sufficient tostate the name of the first party on each side withan appropriate indication of other parties.

(b) Paragraphs; Separate Statements. Allaverments of claim or defense shall be made in

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numbered paragraphs, the contents of each ofwhich shall be limited as far as practicable to astatement of a single set of circumstances; and aparagraph may be referred to by number in allsucceeding pleadings. Each claim founded upon aseparate transaction or occurrence and eachdefense other than denials shall be stated in aseparate count or defense whenever a separationfacilitates the clear presentation of the matters setforth.

(c) Adoption by Reference; Exhibits.Statements in a pleading may be adopted byreference in a different part of the same pleading orin another pleading or in any motion. A copy ofany written instrument which is an exhibit to apleading is a part thereof for all purposes.



RCFC 10 has been changed in minor respectsin order to achieve closer textual conformity withFRCP 10. The former last sentence of subdivision(a) has been moved to RCFC 5.3.

The last sentence of former subdivision (c)(“unless otherwise indicated, but the adverse partyshall not be deemed to have admitted the truth ofthe allegations in such exhibit merely because theadverse party has failed to deny them explicitly”)was omitted as not in conformity with the FRCPand because it was deemed unnecessary.

Rule 11. Signing of Pleadings, Motions, andOther Papers; Representations to Court;Sanctions

(a) Signature. Every pleading, motion, andother paper shall be signed by or for the attorney ofrecord in the signing attorney's own individualname, or, if the party is not represented by anattorney, shall be signed by the party. Each papershall state the signer’s address and telephonenumber, if any. Except when otherwisespecifically provided by rule or statute, pleadingsneed not be verified or accompanied by affidavit.An unsigned paper shall be stricken unless theomission is corrected promptly after being called tothe attention of the attorney or party.

(b) Representations to Court. By presenting

to the court (whether by signing, filing, submitting,or later advocating) a pleading, written motion, orother paper, an attorney or unrepresented party iscertifying that to the best of the person’sknowledge, information, and belief, formed afteran inquiry reasonable under the circumstances,

(1) it is not being presented for anyimproper purpose, such as to harass or tocause unnecessary delay or needless increasein the cost of litigation;

(2) the claims, defenses, and other legalcontentions therein are warranted by existinglaw or by a nonfrivolous argument for theextension, modification, or reversal ofexisting law or the establishment of new law;

(3) the allegations and other factualcontentions have evidentiary support, or, ifspecifically so identified, are likely to haveevidentiary support after a reasonableopportunity for further investigation ordiscovery; and

(4) the denials of factual contentions arewarranted on the evidence, or, if specificallyso identified, are reasonably based on a lackof information or belief.(c) Sanctions. If, after notice and a

reasonable opportunity to respond, the courtdetermines that subdivision (b) has been violated,the court may, subject to the conditions statedbelow, impose an appropriate sanction upon theattorneys, law firms, or parties that have violatedsubdivision (b) or are responsible for the violation.

(1) How Initiated.(A) By Motion. A motion for

sanctions under this rule shall be madeseparately from other motions or requestsand shall describe the specific conductalleged to violate subdivision (b). It shallbe served as provided in RCFC 5, butshall not be filed with or presented to thecourt unless, within 21 days after serviceof the motion (or such other period as thecourt may prescribe), the challengedpaper, claim, defense, contention,allegation, or denial is not withdrawn orappropriately corrected. If warranted, thecourt may award to the party prevailingon the motion the reasonable expensesand attorney’s fees incurred in presenting

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or opposing the motion. Absentexceptional circumstances, a law firmshall be held jointly responsible forviolations committed by its partners,associates, and employees.

(B) On Court’s Initiative. On itsown initiative, the court may enter anorder describing the specific conduct thatappears to violate subdivision (b) anddirecting an attorney, law firm, or partyto show cause why it has not violatedsubdivision (b) with respect thereto.(2) Nature of Sanction; Limitations. A

sanction imposed for violation of this ruleshall be limited to what is sufficient to deterrepetition of such conduct or comparableconduct by others similarly situated. Subjectto the limitations in subparagraphs (A) and(B), the sanction may consist of, or include,directives of a nonmonetary nature, an orderto pay a penalty into court, or, if imposed onmotion and warranted for effective deterrence,an order directing payment to the movant ofsome or all of the reasonable attorneys’ feesand other expenses incurred as a direct resultof the violation.

(A) Monetary sanctions may not beawarded against a represented party for aviolation of subdivision (b)(2).

(B) Monetary sanctions may not beawarded on the court’s initiative unlessthe court issues its order to show causebefore a voluntary dismissal orsettlement of the claims made by oragainst the party which is, or whoseattorneys are, to be sanctioned. (3) Order. When imposing sanctions,

the court shall describe the conductdetermined to constitute a violation of thisrule and explain the basis for the sanctionimposed.(d) Inapplicability to Discovery.

Subdivisions (a) through (c) of this rule do notapply to disclosures and discovery requests,responses, objections, and motions that are subjectto the provisions of RCFC 26 through 37.


Rules Committee Note 2002 Revision

The changes to RCFC 11 reflect thecorresponding revision of FRCP 11 that wasintroduced in December 1993. For a detailedexplanation of the reasons for revision of FRCP 11,see 28 U.S.C.A. Rule 11 Advisory CommitteeNotes (West Supp. 2001).

Rule 12. Defenses and Objections—When andH o w P r e s e n t e d — B y P l e a d i n g o rMotion—Motion for Judgment on Pleadings

(a) When Presented. (1) The United States shall file its answer

to the complaint within 60 days after serviceof the pleading in which the claim is asserted.After service of an answer containing acounterclaim, offset, or plea of fraud, plaintiffshall have 20 days within which to file a replyto the counterclaim, offset, or plea of fraud. Ifa reply to an answer or a responsive pleadingto a third-party complaint or answer is orderedby the court, the reply or responsive pleadingshall be filed within 20 days after service ofthe order unless the order otherwise directs.

(2) Unless a different time is fixed bycourt order, the service of a motion permittedunder this rule or RCFC 56 alters theseperiods of time, as follows:

(A) if the court denies or partiallydenies or partially allows the motion orpostpones its disposition until the trial onthe merits or the motion is withdrawn,the responsive pleading shall be filedwithin 10 days after notice of the court'saction or the date on which the motion iswithdrawn or by the date the responseotherwise would have been due,whichever is later;

(B) if the court grants a motion fora more definite statement, the responsivepleading shall be filed within 10 daysafter the service of the more definitestatement.

(b) How Presented. Every defense, in law orfact, to a claim for relief in any pleading, whethera claim, counterclaim, or third-party claim, shall beasserted in the responsive pleading thereto if one isrequired, except that the following defenses may at

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the option of the pleader be made by motion: (1)lack of jurisdiction over the subject matter, (2) lackof jurisdiction over the person,(3) [not used]; (4)insufficiency of process, (5) insufficiency ofservice of process, (6) failure to state a claim uponwhich relief can be granted, (7) failure to join aparty under RCFC 19. A motion making any ofthese defenses shall be made before pleading if afurther pleading is permitted. No defense orobjection is waived by being joined with one ormore other defenses or objections in a responsivepleading or motion. If a pleading sets forth a claimfor relief to which the adverse party is not requiredto serve a responsive pleading, the adverse partymay assert at the trial any defense in law or fact tothat claim for relief. If, on a motion asserting thedefense numbered (6) to dismiss for failure of thepleading to state a claim upon which relief can begranted, matters outside the pleading are presentedto and not excluded by the court, the motion shallbe treated as one for summary judgment anddisposed of as provided in RCFC 56, and all partiesshall be given reasonable opportunity to present allmaterial made pertinent to such a motion by RCFC56.

(c) Motion for Judgment on the Pleadings.After the pleadings are closed, but within such timeas not to delay the trial, any party may move forjudgment on the pleadings. If, on a motion forjudgment on the pleadings, matters outside thepleadings are presented to and not excluded by thecourt, the motion shall be treated as one forsummary judgment and disposed of as provided inRCFC 56, and all parties shall be given reasonableopportunity to present all material made pertinentto such a motion by RCFC 56.

(d) Preliminary Hearings. The defensesspecifically enumerated in subdivision (b) of thisrule, whether made in a pleading or by motion, andthe motion for judgment mentioned in subdivision(c) of this rule shall be heard and determinedbefore trial on application of any party, unless thecourt orders that the hearing and determinationthereof be deferred until the trial.

(e) Motion for More Definite Statement. Ifa pleading to which a responsive pleading ispermitted is so vague or ambiguous that a partycannot reasonably be required to frame aresponsive pleading, the party may move for a

more definite statement before interposing aresponsive pleading. The motion shall point outthe defects complained of and the details desired.If the motion is granted and the order of the courtis not obeyed within 10 days after notice of theorder or within such other time as the court mayfix, the court may strike the pleading to which themotion was directed or make such order as it deemsjust.

(f) Motion to Strike. Upon motion made bya party before responding to a pleading or, if noresponsive pleading is permitted by these rules,upon motion made by a party within 20 days afterthe service of the pleading upon the party or uponthe court's own initiative at any time, the court mayorder stricken from any pleading any insufficientdefense or any redundant, immaterial, impertinent,or scandalous matter.

(g) Consolidation of Defenses in Motion. Aparty who makes a motion under this rule may joinwith it any other motions herein provided for andthen available to the party. If a party makes amotion under this rule but omits therefrom anydefense or objection then available to the partywhich this rule permits to be raised by motion, theparty shall not thereafter make a motion based onthe defense or objection so omitted, except amotion as provided in subdivision (h)(2) of thisrule on any of the grounds there stated.

(h) Waiver or Preservation of CertainDefenses.

(1) A defense of lack of jurisdiction overthe person, or insufficiency of process, orinsufficiency of service of process is waived(A) if omitted from a motion in thecircumstances described in subdivision (g), or(B) if it is neither made by motion under thisrule nor included in a responsive pleading oran amendment thereof permitted by RCFC15(a) to be made as a matter of course.

(2) A defense of failure to state a claimupon which relief can be granted, a defense offailure to join a party indispensable underRCFC 19, and an objection of failure to statea legal defense to a claim may be made in anypleading permitted or ordered under RCFC7(a), or by motion for judgment on thepleadings, or at the trial on the merits.

(3) Whenever it appears by suggestion of

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the parties or otherwise that the court lacksjurisdiction of the subject matter, the courtshall dismiss the action.



To more closely parallel FRCP 12,subdivisions (b) and (h) of the court’s rule havebeen enlarged by adding the defense of“insufficiency of service of process” and thedefense of “failure to join a party indispensableunder RCFC 19.” Further, as an aid topractitioners, most of whom are familiar withpractice in the district courts, the enumeration ofdefenses in subdivision (b) has been brought intoconformity with the corresponding subdivision ofthe FRCP. Finally, subdivision (i) (“Suspension ofDiscovery”) has been deleted. That subdivision isnot part of the comparable FRCP, and its subjectmatter is more appropriately dealt with as a casemanagement matter.

Rule 13. Counterclaim(a) Compulsory Counterclaims. The answer

shall state as a counterclaim any claim which, atthe time of serving the answer, the defendant hasagainst any plaintiff, if it arises out of thetransaction or occurrence that is the subject matterof the opposing party's claim and does not requirefor its adjudication the presence of third parties ofwhom the court cannot acquire jurisdiction. But theanswer need not state the claim if at the time theaction was commenced the claim was the subject ofanother pending action.

(b) Permissive Counterclaims. The answermay state as a counterclaim any claim against anopposing party not arising out of the transaction oroccurrence that is the subject matter of theopposing party's claim.

(c) Counterclaim Exceeding OpposingClaim. A counterclaim may or may not diminishor defeat the recovery sought by the opposingparty. It may claim relief exceeding in amount ordifferent in kind from that sought in the pleading ofthe opposing party.

(d) Counterclaim Against the United States.These rules shall not be construed to enlarge

beyond the limits now fixed by law the right toassert counterclaims or to claim credits against theUnited States or an officer or agency thereof.

(e) Counterclaim Maturing or AcquiredAfter Pleading. A claim which either matured orwas acquired by the defendant after serving itspleading may, with the permission of the court, bepresented as a counterclaim by supplementalpleading.

(f) Omitted Counterclaim. When thedefendant fails to set up a counterclaim throughoversight, inadvertence, or excusable neglect, orwhen justice requires, it may by leave of court setup the counterclaim by amendment.

(g) Cross-Claim Against Co-Party. [Notused.]

(h) Joinder of Additional Parties. [Notused.]

(i) Separate Trials; Separate Judgments. Ifthe court orders separate trials as provided inRCFC 42(b), judgment on a counterclaim may berendered in accordance with the terms of RCFC54(b) when the court has jurisdiction so to do, evenif the claims of the opposing party have beendismissed or otherwise disposed of.



Subdivision (d) has been changed to add thelanguage of FRCP 13(d) in recognition of the factthat there is no statutory bar to third-partydefendants filing counterclaims against the UnitedStates. See 41 U.S.C. § 114 and RCFC 14. Othersignificant differences between this version and theFRCP have been preserved as necessary in light ofthe fact that the United States is the only defendantin this court.

Rule 14. Third-Party Practice(a) Summoned Parties.

(1) On motion of the United States, thecourt may summon any third person againstwhom the United States may be asserting aclaim or contingent claim for the recovery ofmoney paid by the United States in respect ofthe transaction or matter that constitutes thesubject matter of the suit to appear as a party

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and defend the third party's interest, if any, insuch suit.

(2) The motion for a summons shall beaccompanied by an appropriate pleadingsetting forth the claim or contingent claim thatthe United States is asserting against suchthird person.

(3) If the court grants the motion of theUnited States, the clerk shall issue an originaland one copy of such summons for eachperson to be summoned. The summons shallcontain the names of the parties and astatement of the time within which the partysummoned is required to appear and answer.The summons shall also state that the UnitedStates is asserting a claim against such person,as described in the accompanying pleading ofthe United States. The summons shallindicate that it is accompanied by a copy orcopies of all pleadings filed in said action,naming such pleadings which shall beattached by the United States. Upon issuanceof the summons, the clerk shall deliver thesummons to the Attorney General for personalservice, and the return of such service shall bemade directly to the clerk.(b) Notice to Interested Parties.

(1) The court, on its own motion or onthe motion of a party, may notify any personwith legal capacity to sue and be sued andwho is alleged to have an interest in thesubject matter of any pending action. Suchnotice shall advise of the pendency of theaction and of the opportunity to seekintervention and to assert an interest in theaction.

(2) A motion made by the plaintiff shallbe filed at the time the complaint is filed.Copies and service of such motion shall be asprovided in RCFC 4 and 5.4(d). A motionmade by the United States shall be filed on orbefore the date on which the answer isrequired to be filed. For good cause shown,the court may allow any such motion to befiled at a later time.

(3) The motion for notice shall state thename and address of such person and set forththe interest that such person appears to havein the action.

(4) If the court, on its own motion or onthe motion of a party, orders any third personto be notified, the clerk shall issue an originaland one copy of the notice for each thirdperson to be notified. The notice shall containthe names of the parties and a statement of thetime within which such third person mayappear. The notice shall indicate that it isaccompanied by a copy of the pleadings,which shall be attached by the moving party.

(5) Upon the issuance of such noticeupon motion of a party, the notice shall bedelivered by the clerk to the moving party,who shall, at the moving party's expense,cause the same to be served on the person tobe notified by registered or certified mail,return receipt requested, with the movingparty to file with the clerk the return of suchservice, which return shall include the copy ofthe notice with return receipt attached.

(6) When the court directs the issuance ofa notice to a third person on its own motion,each of the existing parties shall, on request ofthe clerk, deliver to the clerk a sufficientnumber of copies of the pleadings filed bysuch party to provide the third party to benotified with a copy of each of suchpleadings, and the clerk shall forthwith issuesuch notice as specified in subdivision (b)(4)and forward the same with accompanyingcopies of the pleadings to the AttorneyGeneral for service as provided in subdivision(b)(5).

(7) When service of the notice requiredby subdivision (b)(4) is to be effected upon athird person in a foreign country, service ofthe notice may be made by the moving partyor the court, as required by subdivisions (b)(5)and (6), and proof of such service may bemade in the manner authorized by FRCP 4(f).(c) Pleadings of Third Parties. Within 42

days after service upon a third person of asummons or notice issued pursuant to this rule,such person may file an answer or a complaintsetting forth the person's interest, if any, in thesubject matter of the action and the nature of theperson's claim against the United States, or both,which pleadings shall comply with therequirements of these rules with respect to the

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filing of original complaints and answers, exceptthat only an original and 2 copies of a complaintare to be filed with proof of service.



RCFC 14 has been substantially revised. Theorder of the rule has been changed to distinguishmore clearly between the two types of actions itpermits with respect to entities that are not yetparties to the suit. New subdivision (a) dealsexclusively with summons to persons whom theUnited States seeks to join formally as thirdparties. The procedures for such summons are nowgathered under that subdivision. The same hasbeen done with respect to motions for notice toinform non-parties of the pendency of the actionand the opportunity to join as parties. In addition,language in the old rule with respect to service ofnotice by publication, as well as the consequencesof failing to appear in response to such notice, havebeen stricken. The law in this area is unsettled;hence, the possibility existed that the manner andmethod of notice prescribed by the rule might notbe found constitutionally adequate in all potentialsituations.

It is important to note that RCFC 14's noticerequirements do not apply to the procedures fornotifying potential intervenors in procurementprotest cases filed pursuant to 28 U.S.C. § 1491(b).RCFC 14 implements the authority set forth in 41U.S.C. § 114. For service of third-partycomplaints, see RCFC 5.

Rule 15. Amended and Supplemental Pleadings(a) Amendments. A party may amend the

party's pleading once as a matter of course at anytime before a responsive pleading is served or, ifthe pleading is one to which no responsive pleadingis permitted and the action has not been placedupon the trial calendar, the party may so amend itat any time within 20 days after it is served.Otherwise a party may amend the party's pleadingonly by leave of court or by written consent of theadverse party; and leave shall be freely given whenjustice so requires. A party shall plead in responseto an amended pleading within the time remaining

for response to the original pleading or within 10days after service of the amended pleading,whichever period may be the longer, unless thecourt otherwise orders.

(b) Amendments to Conform to theEvidence. When issues not raised by the pleadingsare tried by express or implied consent of theparties, they shall be treated in all respects as ifthey had been raised in the pleadings. Suchamendment of the pleadings as may be necessary tocause them to conform to the evidence and to raisethese issues may be made upon motion of any partyat any time, even after judgment; but failure so toamend does not affect the result of the trial of theseissues. If evidence is objected to at the trial on theground that it is not within the issues made by thepleadings, the court may allow the pleadings to beamended and shall do so freely when thepresentation of the merits of the action will besubserved thereby and the objecting party fails tosatisfy the court that the admission of suchevidence would prejudice the party in maintainingthe party’s action or defense upon the merits. Thecourt may grant a continuance to enable theobjecting party to meet such evidence.

(c) Relation Back of Amendments. Anamendment of a pleading relates back to the date ofthe original pleading when

(1) relation back is permitted by the lawthat provides the statute of limitationsapplicable to the action, or

(2) the claim or defense asserted in theamended pleading arose out of the conduct,transaction, or occurrence set forth orattempted to be set forth in the originalpleading, or

(3) the amendment changes the party orthe naming of the party against whom a claimis asserted if the foregoing provision (2) issatisfied and the party to be brought in byamendment (A) has received such notice ofthe institution of the action that the party willnot be prejudiced in maintaining a defense onthe merits, and (B) knew or should haveknown that, but for a mistake concerning theidentity of the proper party, the action wouldhave been brought against the party. (d) Supplemental Pleadings. Upon motion of

a party the court may, upon reasonable notice and

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upon such terms as are just, permit the party toserve a supplemental pleading setting forthtransactions or occurrences or events which havehappened since the date of the pleading sought tobe supplemented. Permission may be granted eventhough the original pleading is defective in itsstatement of a claim for relief or defense. If thecourt deems it advisable that the adverse partyplead to the supplemental pleading, it shall soorder, specifying the time therefor.



Significant changes were made to FRCP 15 in1991; minor changes were made in 1993. Mostnotable is the listing of criteria for relation back ofamendments in subdivision (c). RCFC 15 wasconformed to the comparable FRCP, with twoexceptions: first, the language in FRCPsubdivision (c)(3), relating to the timing of anamendment changing the name of a party, wasomitted as inapplicable; and second, language insubdivision (c) of the FRCP, relating to faultyservice on federal officers, also was omitted.

Rule 16. Pretrial Conferences; Scheduling;Management

(a) Pretrial Conferences; Objectives. In anyaction, the court may in its discretion direct theattorneys for the parties and any unrepresentedparties to appear before it for a conference orconferences before trial for such purposes as

(1) expediting the disposition of theaction;

(2) establishing early and continuingcontrol so that the case will not be protractedbecause of lack of management;

(3) discouraging wasteful pretrialactivities;

(4) improving the quality of trial throughmore thorough preparation;

(5) facilitating the settlement of the case;and

(6) assessing the utility of dispositivemotions.(b) Scheduling and Planning. Except in

actions exempted by the judge, the court shall,

after receiving the Joint Preliminary Status Reportfrom the parties pursuant to Appendix A or afterconsulting with the attorneys for the parties andany unrepresented parties by a schedulingconference, telephone, mail, or other suitablemeans, enter a scheduling order that limits the time

(1) to join other parties and to amend thepleadings;

(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 theextent of discovery to be permitted;

(5) provisions for disclosure or discoveryof electronically stored information;

(6) any agreements the parties reach forasserting claims of privilege or of protectionas trial-preparation material after production;

(7) the date or dates for conferencesbefore trial, a final pretrial conference, andtrial;

(8) a direction that the parties file any ofthe submissions set out in Appendix A ¶¶ 14,15, 16 or 17; and

(9) any other matters appropriate in thecircumstances of the case. The order shall issue as soon as practicable

but in any event within 14 days after anypreliminary scheduling conference, or, if nopreliminary scheduling conference is held, as soonas practicable after the Joint Preliminary StatusReport is filed. A schedule shall not be modifiedexcept upon a showing of good cause and by leaveof the judge.

(c) Subjects for Consideration at PretrialConferences. At any conference under this rule,consideration may be given, and the court may takeappropriate action, with respect to

(1) the formulation and simplification ofthe issues, including the elimination offrivolous claims or defenses;

(2) the necessity or desirability ofamendments to the pleadings;

(3) the possibility of obtainingadmissions of fact and of documents whichwill avoid unnecessary proof, stipulationsregarding the authenticity of documents, and

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advance rulings from the court on theadmissibility of evidence;

(4) the avoidance of unnecessary proofand of cumulative evidence, and limitations orrestrictions on the use of testimony underRule 702 of the Federal Rules of Evidence;

(5) the appropriateness and timing ofsummary adjudications under RCFC 56 and56.1;

(6) the control and scheduling ofdiscovery, including orders affectingdisclosures and discovery pursuant to RCFC26 and RCFC 29 through 37;

(7) the identification of witnesses anddocuments, the need and schedule for filingand exchanging pretrial briefs, and the date ordates for further conferences and for trial;

(8) the advisability of referring matters toa master;

(9) settlement and the use of specialprocedures to assist in resolving the dispute;

(10) the form and substance of thepretrial order;

(11) the disposition of pending motions;(12) the need for adopting special

procedures for managing potentially difficultor protracted actions that may involvecomplex issues, multiple parties, difficultlegal questions, or unusual proof problems;

(13) an order for a separate trial pursuantto RCFC 42(b) with respect to a claim,counterclaim, or third-party claim, or withrespect to any particular issue in the case;

(14) an order directing a party to presentevidence early in the trial with respect to amanageable issue that could, on the evidence,be the basis for a judgment as a matter of lawor a judgment on partial findings under RCFC52(c);

(15) an order establishing a reasonablelimit on the time allowed for presentingevidence; and

(16) such other matters as may facilitatethe just, speedy, and inexpensive dispositionof the action.

At least one of the attorneys for each partyparticipating in any conference before trial shallhave authority to enter into stipulations and to

make admissions regarding all matters that theparticipants may reasonably anticipate may bediscussed. If appropriate, the court may requirethat a party or its representative be present orreasonably available by telephone in order toconsider possible settlement of the dispute.

(d) Final Pretrial Conference. Any finalpretrial conference shall be held as close to thetime of trial as reasonable under the circumstances.The participants at any such conference shallformulate a plan for trial, including the program forfacilitating the admission of evidence. Theconference shall be attended by at least one of theattorneys who will conduct the trial for each of theparties and by any unrepresented parties.

(e) Pretrial Orders. After any conferenceheld pursuant to this rule, an order shall be enteredreciting the action taken. The order following afinal pretrial conference shall be modified only toprevent manifest injustice.

(f) Sanctions. If a party or party's attorneyfails to obey a scheduling or pretrial order, or if noappearance is made on behalf of a party at ascheduling or pretrial conference, or if a party orparty's attorney is substantially unprepared toparticipate in the conference, or if a party or party'sattorney fails to participate in good faith, the judge,upon motion or the judge's own initiative, maymake such orders with regard thereto as are just,and among others any of the orders provided inRCFC 37(b)(2)(B), (C), (D). In lieu of or inaddition to any other sanction, the judge shallrequire the party or the attorney representing theparty or both to pay the reasonable expensesincurred because of any noncompliance with thisrule, including attorney’s fees, unless the judgefinds that the noncompliance was substantiallyjustified or that other circumstances make an awardof expenses unjust.

(g) Additional Pretrial Procedures. SeeAppendix A to these rules ("Case ManagementProcedure") for additional provisions controllingpretrial procedures.



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RCFC 16 has been completely revised toparallel the structure and content of its counterpartin the FRCP. The limited number of changes to thecurrent FRCP reflect those deemed necessary toaccommodate procedural requirements particular tothis court. Except for these changes, the ruleshown conforms fully to the text of FRCP 16.

2007 AmendmentSubdivision (b) of RCFC 16 has been

amended by the addition of subparagraphs 5 and 6to reflect the corresponding changes to FRCP 16

IV. PARTIES

Rule 17. Parties Plaintiff and Defendant;Capacity

(a) Real Party in Interest. Every action shallbe prosecuted in the name of the real party ininterest. An executor, administrator, guardian,bailee, trustee of an express trust, a party withwhom or in whose name a contract has been madefor the benefit of another, or a party authorized bystatute may sue in that person's own name withoutjoining the party for whose benefit the action isbrought. No action shall be dismissed on theground that it is not prosecuted in the name of thereal party in interest until a reasonable time hasbeen allowed after objection for ratification ofcommencement of the action by, or joinder orsubstitution of, the real party in interest; and suchratification, joinder, or substitution shall have thesame effect as if the action had been commenced inthe name of the real party in interest.

(b) Capacity to Sue or Be Sued. The capacityof an individual, other than one acting in arepresentative capacity, to sue or be sued shall bedetermined by the law of the individual's domicile.The capacity of a corporation to sue or be suedshall be determined by the law under which it wasorganized. In all other cases capacity to sue or besued shall be determined by the law of theapplicable state, except (1) that a partnership orother unincorporated association, which has nocapacity by the law of its state, may sue or be suedin its common name for the purpose of enforcingfor or against it a substantive right existing underthe Constitution or laws of the United States, and

(2) that the capacity of a receiver appointed by acourt of the United States to sue or be sued in acourt 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 arepresentative, such as a general guardian,committee, conservator, or other like fiduciary, therepresentative may sue or defend on behalf of theinfant or incompetent person. An infant orincompetent person who does not have a dulyappointed representative may sue by a next friendor by a guardian ad litem. The court shall appointa guardian ad litem for an infant or incompetentperson not otherwise represented in an action orshall make such other order as it deems proper forthe protection of the infant or incompetent person.



RCFC 17 has been modified in minor respectsin order to achieve closer conformity with FRCP17. A difference between the court’s rule and thecorresponding FRCP occurs in subdivision (b).Subdivision (b) of the FRCP, subtitled “Capacity toSue or Be Sued,” provides generally that in thosecases for which no rule of decision is provided,“capacity to sue or be sued shall be determined bythe law of the state in which the district court isheld.” In recognition of this court’s nationwidejurisdiction, the quoted language was rewritten bysubstituting “by the law of the applicable state” for“by the law of the state in which the district courtis held.”

Rule 18. Joinder of Claims and Remedies(a) Joinder of Claims. A party asserting a

claim to relief as an original claim or counterclaim,may join, either as independent or as alternateclaims, as many claims as the party has against anopposing party. A third party may join, to theextent permitted by law, as many claims as theparty has against the opposing party.

(b) Joinder of Remedies. Whenever a claimis one heretofore cognizable only after anotherclaim has been prosecuted to a conclusion, the twoclaims may be joined in a single action; but the

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court shall grant relief in that action only inaccordance with the relative substantive rights ofthe parties.



The final sentence added to subdivision (a)was intended to recognize both the right of a thirdparty to assert a claim and the limitations on thatright as set forth in 41 U.S.C. § 114 and applicablecase law.

Rule 19. Joinder of Persons Needed for JustAdjudication

(a) Persons to be Joined if Feasible. Aperson who is subject to service of process andwhose joinder will not deprive the court ofjurisdiction over the subject matter of the actionshall be joined as a party in the action if (1) in theperson's absence complete relief cannot beaccorded among those already parties, or (2) theperson claims an interest relating to the subject ofthe action and is so situated that the disposition ofthe action in the person's absence may (i) as apractical matter impair or impede the person'sability to protect that interest or (ii) leave any ofthe persons already parties subject to a substantialrisk of incurring double, multiple, or otherwiseinconsistent obligations by reason of the claimedinterest. If the person has not been so joined, thecourt shall order that the person be made a party.If the person should join as a plaintiff but refuses todo so, the person may be made an involuntaryplaintiff.

(b) Determination by Court WheneverJoinder Not Feasible. If a person as described insubdivision (a)(1)–(2) hereof cannot be made aparty, the court shall determine whether in equityand good conscience the action should proceedamong the parties before it, or should be dismissed,the absent person being thus regarded asindispensable. The factors to be considered by thecourt include: first, to what extent a judgmentrendered in the person's absence might beprejudicial to the person or those already parties;second, the extent to which, by protectiveprovisions in the judgment, by the shaping of relief,

or other measures, the prejudice can be lessened oravoided; third, whether a judgment rendered in theperson's absence will be adequate; fourth, whetherthe plaintiff will have an adequate remedy if theaction is dismissed for nonjoinder.

(c) Pleading Reasons for Nonjoinder. Apleading asserting a claim for relief shall state thenames, if known to the pleader, of any persons asprescribed in subdivision (a)(1)–(2) hereof who arenot joined, and the reasons why they are not joined.

(d) Exception of Class Actions. This rule issubject to the provisions of RCFC 23.



Reference to RCFC 14 was deleted fromsubdivision (a) and other minor changes have beenmade in order to more closely conform to FRCP19. Some differences, however, wereretained—the most significant being the deletion ofthe last sentence of FRCP 19(a) from this court’srule. The last sentence addresses objections tovenue raised by a joined party. Such objectionswould not be assertable in this court.

Rule 20. Permissive Joinder of Parties(a) Permissive Joinder. All persons may join

in one action as plaintiffs if they assert any right torelief jointly, severally, or in the alternative inrespect of or arising out of the same transaction,occurrence, or series of transactions or occurrencesand if any question of law or fact common to allthese persons will arise in the action. A plaintiffneed not be interested in obtaining all the reliefdemanded. Judgment may be given for one ormore of the plaintiffs according to their respectiverights to relief.

(b) Separate Trials. The court may makesuch orders as will prevent a party from beingembarrassed, delayed, or put to expense by theinclusion of a party against whom the party assertsno claim and who asserts no claim against theparty, and may order separate trials or make otherorders to prevent delay or prejudice.


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The authority previously contained in RCFC20(a)(1)–(2), permitting unrestricted joinder ofadditional plaintiffs to a pending multi-partyaction, proved cumbersome in practice and animpediment to sound case management. Thejoinder of additional plaintiffs should proceed byappropriate motion under RCFC 15. Accordingly,RCFC 20 was modified so as to more closelyparallel the text of the corresponding FRCP.

Rule 21. Misjoinder and Non-Joinder of PartiesMisjoinder of parties is not ground for

dismissal of an action. Parties may be dropped oradded by order of the court on motion of any partyor of its own initiative at any stage of the actionand on such terms as are just. Any claim against aparty may be severed and proceeded withseparately.



The last sentence of the former rule, “To addplaintiffs, see RCFC 20(a)(1)–(2),” was eliminatedto more closely conform the rule to FRCP 21.

Rule 22. Interpleader [Not used.]


The interpleader practice permitted underFRCP 22 is, for the most part, incompatible withthe jurisdiction exercisable by this court.However, in those cases where the United States isin the position of a stakeholder facing the risks ofdouble liability, RCFC 14 provides the means forsummoning a third party.

Rule 23. Class Actions(a) Prerequisites to a Class Action. One or

more members of a class may sue as representativeparties on behalf of all only if (1) the class is sonumerous that joinder of all members isimpracticable, (2) there are questions of law or factcommon to the class, (3) the claims of therepresentative parties are typical of the claims of

the class, and (4) the representative parties willfairly and adequately protect the interests of theclass.

(b) Class Actions Maintainable. An actionmay be maintained as a class action if theprerequisites of subdivision (a) are satisfied, and inaddition:

(1) the United States has acted or refusedto act on grounds generally applicable to theclass; and

(2) the court finds that the questions oflaw or fact common to the members of theclass predominate over any questionsaffecting only individual members, and that aclass action is superior to other availablemethods for the fair and efficient adjudicationof the controversy. The matters pertinent tothe findings include: (A) the interest ofmembers of the class in individuallycontrolling the prosecution of separateactions; (B) the extent and nature of anylitigation concerning the controversy alreadycommenced by members of the class; and (C)the difficulties likely to be encountered in themanagement of a class action.(c) Determining by Order Whether to

Certify a Class Action; Appointing ClassCounsel; Notice and Membership in Class;Judgment; Multiple Classes and Subclasses.

(1)(A) When a person sues or is sued asa representative of a class, the courtmust—at an early practicabletime—determine by order whether tocertify the action as a class action.

(B) An order certifying a classaction must define the class and theclass claims, issues, or defenses, andmust appoint class counsel underRCFC 23(g).

(C) An order under RCFC 23(c)(1)may be altered or amended before finaljudgment.

(2)(A) [Not used.]

(B) For any class certified underRCFC 23(b), the court must direct toclass members the best noticepracticable under the circumstances,

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including individual notice to allmembers who can be identified throughreasonable effort. The notice mustconcisely and clearly state in plain,easily understood language:

• the nature of the action,• the definition of the class

certified,• the class claims, issues, or

defenses,• that a class member may

enter an appearance throughcounsel if the member so desires,

• that the court will include inthe class any member whorequests inclusion, stating whenand how members may elect to beincluded, and

• the binding effect of a classjudgment on class members underRCFC 23.

(3) The judgment in an actionmaintained as a class action undersubdivision (b), whether or not favorable tothe class, shall include and specify ordescribe those to whom the notice providedin subdivision (c)(2) was directed, andwhom the court finds to be members of theclass.

(4) When appropriate (A) an actionmay be brought or maintained as a classaction with respect to particular issues, or(B) a class may be divided into subclassesand each subclass treated as a class, and theprovisions of this rule shall then beconstrued and applied accordingly.(d) Orders in Conduct of Actions. In the

conduct of actions to which this rule applies, thecourt may make appropriate orders: (1)determining the course of proceedings orprescribing measures to prevent undue repetition orcomplication in the presentation of evidence orargument; (2) requiring, for the protection of themembers of the class or otherwise for the fairconduct of the action, that notice be given in suchmanner as the court may direct to some or all of themembers of any step in the action, or of the

proposed extent of the judgment, or of theopportunity of members to signify whether theyconsider the representation fair and adequate, tointervene and present claims or defenses, orotherwise to come into the action; (3) imposingconditions on the representative parties or onintervenors; (4) requiring that the pleadings beamended to eliminate therefrom allegations as torepresentation of absent persons, and that theaction proceed accordingly; (5) dealing withsimilar procedural matters. The orders may becombined with an order under RCFC 16, and maybe altered or amended as may be desirable fromtime to time.

(e) Settlement, Voluntary Dismissal, orCompromise.

(1)(A) The court must approve anysettlement, voluntary dismissal, orcompromise of the claims, issues, ordefenses of a certified class.

(B) The court must direct notice ina reasonable manner to all class memberswho would be bound by a proposedsettlement, voluntary dismissal, orcompromise.

(C) The court may approve asettlement, voluntary dismissal, orcompromise that would bind classmembers only after a hearing and onfinding that the settlement, voluntarydismissal, or compromise is fair,reasonable, and adequate.(2) The parties seeking approval of a

settlement, voluntary dismissal, orcompromise under RCFC 23(e)(1) must file astatement identifying any agreement made inconnection with the proposed settlement,voluntary dismissal, or compromise.

(3) [Not used.](4)(A) Any class member may object toa proposed settlement, voluntarydismissal, or compromise that requirescourt approval under RCFC 23(e)(1)(A).

(B) An objection made underRCFC 23(e)(4)(A) may be withdrawnonly with the court’s approval.

(f) Appeals. [Not used.](g) Class Counsel.

(1) Appointing Class Counsel.

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(A) Unless a statute providesotherwise, a court that certifies a classmust appoint class counsel.

(B) An attorney appointed to serveas class counsel must fairly andadequately represent the interests of theclass.

(C) In appointing class counsel, thecourt

(i) must consider:• the work counsel has

done in identifying orinvestigating potential claimsin the action,

• counsel’s experience inhandling class actions, othercomplex litigation, and claimsof the type asserted in theaction,

• counsel’s knowledge ofthe applicable law, and

• the resources counselwill commit to representing theclass;(ii) may consider any other

matter pertinent to counsel’s abilityto fairly and adequately representthe interests of the class;

(iii) may direct potential classcounsel to provide information onany subject pertinent to theappointment and to propose termsfor attorney fees and nontaxablecosts; and

(iv) may make further orders inconnection with the appointment.

(2) Appointment Procedure.(A) The court may designate interim

counsel to act on behalf of the putativeclass before determining whether tocertify the action as a class action.

(B) When there is one applicant forappointment as class counsel, the courtmay appoint that applicant only if theapp l ica n t i s adequa te underRCFC 23(g)(1)(B) and (C). If more thanone adequate applicant seeksappointment as class counsel, the courtmust appoint the applicant best able to

represent the interests of the class.(C) The order appointing class

counsel may include provisions about theaward of attorney fees or nontaxablecosts under RCFC 23(h).

(h) Attorney Fees Award. In an actioncertified as a class action, the court may awardreasonable attorney fees and nontaxable costsauthorized by law:

(1) Motion for Award of AttorneyFees. [Not used.]

(2) Objections to Motion. [Not used.]

(3) Hearing and Findings. [Not used.]

(4) Reference to Special Master orMagistrate Judge. [Not used.]

(As revised and reissued May 1, 2002; as amendedJuly 1, 2004.)


RCFC 23 has been completely rewritten.Although the court’s rule is modeled largely on thecomparable FRCP, there are significant differencesbetween the two rules. In the main, the court’s ruleadopts the criteria for certifying and maintaining aclass action as set forth in Quinault Allottee Ass’nv. United States, 197 Ct. Cl. 134, 453 F.2d 1272(1972).

Because the relief available in this court isgenerally confined to individual money claimsagainst the United States, the situations justifyingthe use of a class action are correspondinglynarrower than those addressed in FRCP 23. Thus,the court’s rule does not accommodate, inter alia,the factual situations redressable throughdeclaratory and injunctive relief contemplatedunder FRCP 23(b)(1) and (b)(2).

Additionally, unlike the FRCP, the court’srule contemplates only opt-in class certifications,not opt-out classes. The latter were viewed asinappropriate here because of the need forspecificity in money judgments against the UnitedStates, and the fact that the court’s injunctivepowers—the typical focus of an opt-out class—aremore limited than those of a district court.

Finally, the court’s rule does not contain a

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provision comparable to FRCP 23(f). Thatsubdivision, which provides that a “court ofappeals may in its discretion permit an appeal froman order . . . granting or denying classcertification,” has its origin in 28 U.S.C. § 1292(e),which authorizes the Supreme Court to promulgaterules that provide for an appeal of an interlocutorydecision other than those set out in Section 1292.Because no comparable statutory authority existsfor this court’s promulgation of a similar rule,subdivision (f) has been omitted. It should benoted, however, that the Court of Federal Claimsmay certify questions to the Court of Appeals forthe Federal Circuit pursuant to 28 U.S.C.§§ 1292(b), 1295.

2004 AmendmentIn addition to the rule changes introduced in

2002, the text of the current rule also incorporatesthe revisions to FRCP 23 effective December 1,2003. These revisions, which appear assubdivisions (c), (e), (g), and (h) of the rule, adoptthe text of the FRCP except where modification inwording was necessary to accommodate the “opt-in” character of this court’s class action practice.

Rule 23.1 Derivative Actions by ShareholdersIn a derivative action brought by one or more

shareholders or members to enforce a right of acorporation or of an unincorporated association,the corporation or association having failed toenforce a right which may properly be asserted byit, the complaint shall be verified and shall allege(1) that the plaintiff was a shareholder or memberat the time of the transaction of which the plaintiffcomplains or that the plaintiff’s share ormembership thereafter devolved on the plaintiff byoperation of law, and (2) that the action is not acollusive one to confer jurisdiction on this courtwhich it would not otherwise have. The complaintshall also allege with particularity the efforts, ifany, made by the plaintiff to obtain the action theplaintiff desires from the directors or comparableauthority and, if necessary, from the shareholdersor members, and the reasons for the plaintiff’sfailure to obtain the action or for not making theeffort. The derivative action may not bemaintained if it appears that the plaintiff does notfairly and adequately represent the interests of the

shareholders or members similarly situated inenforcing the right of the corporation orassociation. The action shall not be dismissed orcompromised without the approval of the court,and notice of the proposed dismissal orcompromise shall be given to shareholders ormembers in such manner as the court directs.

(As added May 1, 2002.)


This is a new rule. This version of RCFC 23.1is in conformity with the corresponding FRCP.The Federal Circuit has ruled that under certaincircumstances, this court has jurisdiction to hearshareholder derivative suits. First Hartford Corp.Pension Plan & Trust v. United States, 194 F.3d1279 (Fed. Cir. 1999). Cf. Branch v. United States,69 F.3d 1571 (Fed. Cir. 1995); and CaliforniaHousing Sec., Inc. v. United States, 959 F.2d 955(Fed. Cir. 1992).

Rule 23.2 Actions Relating to UnincorporatedAssociations [Not used.]


This rule is procedurally unnecessary in lightof the opt-in class-action procedures of RCFC 23.

Rule 24. Intervention(a) Intervention of Right. Upon timely

application anyone shall be permitted to intervenein an action: (1) when a statute of the United Statesconfers an unconditional right to intervene; or (2)when the applicant claims an interest relating to theproperty or transaction which is the subject of theaction and the applicant is so situated that thedisposition of the action may as a practical matterimpair or impede the applicant's ability to protectthat interest, unless the applicant's interest isadequately represented by existing parties.

(b) Permissive Intervention. Upon timelyapplication anyone may be permitted to intervenein an action: (1) when a statute of the United Statesconfers a conditional right to intervene; or (2)when an applicant's claim or defense and the mainaction have a question of law or fact in common. In

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exercising its discretion the court shall considerwhether the intervention will unduly delay orprejudice the adjudication of the rights of theoriginal parties.

(c) Procedure. A person desiring to interveneshall serve a motion to intervene upon the partiesas provided in RCFC 5. The motion shall state thegrounds therefor and shall be accompanied by apleading setting forth the claim or defense forwhich intervention is sought. The same procedureshall be followed when a statute of the UnitedStates gives a right to intervene.



Minor changes have been made to subdivision(c) of this rule in order to more closely conform toFRCP 24.

Rule 25. Substitution of Parties(a) Death.

(1) If a party dies and the claim is notthereby extinguished, the court may ordersubstitution of the proper parties. The motionfor substitution may be made by any party orby the successors or representatives of thedeceased party and shall be served as providedin RCFC 5. Unless the motion forsubstitution is made not later than 90 daysafter the death is suggested upon the record byservice of a statement of the fact of the deathas provided herein for the service of themotion, the action shall be dismissed as to thedeceased party.

(2) In the event of the death of one ormore of the plaintiffs in an action in which theright sought to be enforced survives only tothe surviving plaintiffs, the action does notabate. The death shall be suggested upon therecord and the action shall proceed in favor ofor against the surviving parties.(b) Incompetency. If a party becomes

incompetent, the court upon motion served asprovided in subdivision (a) of this rule may allowthe action to be continued by or against the party'srepresentative.

(c) Transfer of Interest. In case of any

transfer of interest, the action may be continued byor against the original party, unless the court uponmotion directs the person to whom the interest istransferred to be substituted in the action or joinedwith the original party. Service of the motion shallbe made as provided in subdivision (a) of this rule.

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



RCFC 25 omits the text of subdivision (d) ofFRCP 25 which addresses the substitution of asuccessor in an action naming a public officer whodies or is separated from service while the action ispending.

V. DEPOSITIONS AND DISCOVERY

Rule 26. General Provisions GoverningDiscovery; Duty of Disclosure

(a) Required Disclosures; Methods toDiscover Additional Matter.

(1) Initial Disclosures. Except incategories of proceedings specified in RCFC26(a)(1)(E), or to the extent otherwisestipulated or directed by order, a party must,without awaiting a discovery request, provideto other parties:

(A) the name and, if known, theaddress and telephone number of eachindividual likely to have discoverableinformation that the disclosing party mayuse to support its claims or defenses,unless solely for impeachment,identifying the subjects of theinformation;

(B) a copy of, or a description bycategory and location of, all documents,electronically stored information, andtangible things that are in the possession,custody, or control of the party and thatthe disclosing party may use to supportits claims or defenses, unless solely forimpeachment; and

(C) a computation of any category

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of damages claimed by the disclosingparty, making available for inspectionand copying as under RCFC 34 thedocuments or other evidentiary material,not privileged or protected fromdisclosure, on which such computation isbased, including materials bearing on thenature and extent of injuries suffered.

(D) [Not used.](E) The following categories of

proceedings are exempt from initialdisclosure under RCFC 26(a)(1):

(i) an action for review on anadministrative record, includingprocurement protest and militarypay cases;

(ii) [not used];(iii) [not used];(iv) an action brought without

counsel by a person in custody ofthe United States, a state, or a statesubdivision;

(v, vi, vii, viii) [not used];(ix) an action to enforce an

arbitration award; and(x) an action under the

National Childhood Vaccine InjuryAct.

These disclosures must be made within 14 daysafter the filing of the Joint Preliminary StatusReport (see Appendix A ¶ 4) unless a different timeis set by stipulation or court order, or unless a partyobjects during the Early Meeting of Counsel (seeAppendix A ¶ 3) that initial disclosures are notappropriate in the circumstances of the action andstates the objection in the Joint Preliminary StatusReport. In ruling on the objection, the court mustdetermine what disclosures—if any—are to bemade, and set the time for disclosure. Any partyfirst served or otherwise joined after the JointPreliminary Status Report must make thesedisclosures within 30 days after being served orjoined unless a different time is set by stipulationor court order. A party must make its initialdisclosures based on the information thenreasonably available to it and is not excused frommaking its disclosures because it has not fullycompleted its investigation of the case or becauseit challenges the sufficiency of another party's

disclosures or because another party has not madeits disclosures.

(2) Disclosure of Expert Testimony.(A) In addition to the disclosures

required by paragraph (1), a party shalldisclose to other parties the identity ofany person who may be used at trial topresent evidence under Rules 702, 703,or 705 of the Federal Rules of Evidence.

(B) Except as otherwise stipulatedor directed by the court, this disclosureshall, with respect to a witness who isretained or specially employed to provideexpert testimony in the case or whoseduties as an employee of the partyregularly involve giving experttestimony, be accompanied by a writtenreport prepared and signed by thewitness. The report shall contain acomplete statement of all opinions to beexpressed and the basis and reasonstherefor; the data or other informationconsidered by the witness in forming theopinions; any exhibits to be used as asummary of or support for the opinions;the qualifications of the witness,including a list of all publicationsauthored by the witness within thepreceding ten years; the compensation tobe paid for the study and testimony; anda listing of any other cases in which thewitness has testified as an expert at trialor by deposition within the precedingfour years.

(C) These disclosures shall be madeat the times and in the sequence directedby the court. In the absence of otherdirections from the court or stipulationby the parties, see Appendix A ¶¶ 5, 8,the disclosures shall be made at least 70days before the scheduled close ofdiscovery or, if the evidence is intendedsolely to contradict or rebut evidence onthe same subject matter identified byanother party under paragraph (2)(B),within 30 days after the disclosure madeby the other party. The parties shallsupplement these disclosures whenrequired under subdivision (e)(1).

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(3) Pretrial Disclosures. [Not used. SeeAppendix A ¶¶ 13, 15, 16.]

(4) Form of Disclosures. Unless thecourt orders otherwise, all disclosures underRCFC 26(a)(1) through (3) must be made inwriting, signed, and served.

(5) Methods to Discover AdditionalMatter. Parties may obtain discovery by oneor more of the following methods:depositions upon oral examination or writtenquestions; written interrogatories; productionof documents or things or permission to enterupon land or other property under RCFC 34 or45(a)(1)(C), for inspection and otherpurposes; physical and mental examinations;and requests for admission.(b) Discovery Scope and Limits. Unless

otherwise limited by order of the court inaccordance with these rules, the scope of discoveryis as follows:

(1) In General. Parties may obtaindiscovery regarding any matter, notprivileged, that is relevant to the claim ordefense of any party, including the existence,description, nature, custody, condition, andlocation of any books, documents, or othertangible things and the identity and location ofpersons having knowledge of anydiscoverable matter. For good cause, thecourt may order discovery of any matterrelevant to the subject matter involved in theaction. Relevant information need not beadmissible at the trial if the discovery appearsreasonably calculated to lead to the discoveryof admissible evidence. All discovery issubject to the limitations imposed by RCFC26(b)(2)(C)(i), (ii), and (iii).

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

limits in these rules on the number ofdepositions and interrogatories or thelength of depositions under RCFC 30.By order, the court may also limit thenumber of requests under RCFC 36.

(B) A party need not providediscovery of electronically storedinformation from sources that the partyidentifies as not reasonably accessiblebecause of undue burden or cost. On

motion to compel discovery or for aprotective order, the party from whomdiscovery is sought must show that theinformation is not reasonably accessiblebecause of undue burden or cost. If thatshowing is made, the court maynonetheless order discovery from suchsources if the requesting party showsgood cause, considering the limitationsof Rule 26(b)(2)(C). The court mayspecify conditions for the discovery.

(C) The frequency or extent of useof the discovery methods otherwisepermitted under these rules shall belimited by the court if it determines that:(i) the discovery sought is unreasonablycumulative or duplicative, or isobtainable from some other source that ismore convenient, less burdensome, orless expensive; (ii) the party seekingdiscovery has had ample opportunity bydiscovery in the action to obtain theinformation sought; or (iii) the burden orexpense of the proposed discoveryoutweighs its likely benefit, taking intoaccount the needs of the case, the amountin controversy, the parties' resources, theimportance of the issues at stake in thelitigation, and the importance of theproposed discovery in resolving theissues. The court may act upon its owninitiative after reasonable notice orpursuant to a motion under RCFC 26(c).(3) Trial Preparation: Materials.

Subject to the provisions of subdivision(b)(4), a party may obtain discovery ofdocuments and tangible things otherwisediscoverable under subdivision (b)(1) of thisrule and prepared in anticipation of litigationor for trial by or for another party or by or forthat other party's representative (including theother party's attorney, consultant, surety,indemnitor, insurer, or agent) only upon ashowing that the party seeking discovery hassubstantial need of the materials in thepreparation of the party's case and that theparty is unable without undue hardship toobtain the substantial equivalent of thematerials by other means. In ordering

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discovery of such materials when the requiredshowing has been made, the court shallprotect against disclosure of the mentalimpressions, conclusions, opinions, or legaltheories of an attorney or other representativeof a party concerning the litigation.

A party may obtain without the requiredshowing a statement concerning the action orits subject matter previously made by thatparty. Upon request, a person not a party mayobtain without the required showing astatement concerning the action or its subjectmatter previously made by that person. If therequest is refused, the person may move for acourt order. The provisions of RCFC 37(a)(4)apply to the award of expenses incurred inrelation to the motion. For purposes of thisparagraph, a statement previously made is (A)a written statement signed or otherwiseadopted 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 anoral statement by the person making it andcontemporaneously recorded.

(4) Trial Preparation: Experts.(A) A party may depose any person

who has been identified as an expertwhose opinions may be presented at trial.If a report from the expert is requiredunder subdivision (a)(2)(B), thedeposition shall not be conducted untilafter the report is provided.

(B) A party may, throughinterrogatories or by deposition, discoverfacts known or opinions held by anexpert who has been retained or speciallyemployed by another party inanticipation of litigation or preparationfor trial and who is not expected to becalled as a witness at trial only asprovided in RCFC 35(b) or upon ashowing of exceptional circumstancesunder which it is impracticable for theparty seeking discovery to obtain facts oropinions on the same subject by othermeans.

(C) Unless manifest injustice wouldresult, (i) the court shall require that the

party seeking discovery pay the expert areasonable fee for time spent inresponding to the discovery under thissubdivision; and (ii) with respect todiscovery obtained under subdivision(b)(4)(B) of this rule the court shallrequire the party seeking discovery topay the other party a fair portion of thefees and expenses reasonably incurred bythe latter party in obtaining facts andopinions from the expert.(5) Claims of Privilege or Protection of

Trial-Preparation Materials. (A) Information Withheld. When

a party withholds information otherwisediscoverable under these rules byclaiming that it is privileged or subject toprotection as trial preparation material,the party shall make the claim expresslyand shall describe the nature of thedocuments, communications, or thingsnot produced or disclosed in a mannerthat, without revealing information itselfprivileged or protected, will enable otherparties to assess the applicability of theprivilege or protection.

(B) Information Produced. Ifinformation is produced in discovery thatis subject to a claim of privilege or ofprotection as trial-preparation material,the party making the claim may notifyany party that received the information ofthe claim and the basis for it. Afterbeing notified, a party must promptlyreturn, sequester, or destroy the specifiedinformation and any copies it has andmay not use or disclose the informationuntil the claim is resolved. A receivingparty may promptly present theinformation to the court under seal for adetermination of the claim. If thereceiving party disclosed the informationbefore being notified, it must takereasonable steps to retrieve it. Theproducing party must preserve theinformation until the claim is resolved.

(c) Protective Orders. Upon motion by aparty or by the person from whom discovery issought, accompanied by a certification that the

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movant has in good faith conferred or attempted toconfer with other affected parties in an effort toresolve the dispute without court action, and forgood cause shown, the court may make any orderwhich justice requires to protect a party or personfrom annoyance, embarrassment, oppression, orundue burden or expense, including one or more ofthe following:

(1) that the disclosure or discovery not behad;

(2) that the disclosure or discovery maybe had only on specified terms and conditions,including a designation of the time or place;

(3) that the discovery may be had only bya method of discovery other than that selectedby the party seeking discovery;

(4) that certain matters not be inquiredinto, or that the scope of the disclosure ordiscovery be limited to certain matters;

(5) that discovery be conducted with noone present except persons designated by thecourt;

(6) that a deposition, after being sealed,be opened only by order of the court;

(7) that a trade secret or otherconfidential research, development, orcommercial information not be revealed or berevealed only in a designated way; and

(8) that the parties simultaneously filespecified documents or information enclosedin sealed envelopes to be opened as directedby the court.

If the motion for a protective order is denied inwhole or in part, the court may, on such terms andconditions as are just, order that any party or otherperson provide or permit discovery. Theprovisions of RCFC 37(a)(4) apply to the award ofexpenses incurred in relation to the motion.

(d) Timing and Sequence of Discovery.Except in categories of proceedings exempted frominitial disclosure under RCFC 26(a)(1)(E), or whenauthorized under these rules or by order oragreement of the parties, a party may not seekdiscovery from any source before the parties haveconferred as required by Appendix A ¶ 3. Unlessthe court upon motion, for the convenience ofparties and witnesses and in the interests of justice,orders otherwise, methods of discovery may beused in any sequence, and the fact that a party is

conducting discovery, whether by deposition orotherwise, does not operate to delay any otherparty's discovery.

(e) Supplementation of Disclosures andResponses. A party who has made a disclosureunder subdivision (a) or responded to a request fordiscovery with a disclosure or response is under aduty to supplement or correct the disclosure orresponse to include information thereafter acquiredif ordered by the court or in the followingcircumstances:

(1) A party is under a duty to supplementat appropriate intervals its disclosures undersubdivision (a) if the party learns that in somematerial respect the information disclosed isincomplete or incorrect and if the additionalor corrective information has not otherwisebeen made known to the other parties duringthe discovery process or in writing. Withrespect to testimony of an expert from whoma report is required under subdivision(a)(2)(B) the duty extends both to informationcontained in the report and to informationprovided through a deposition of the expert.

(2) A party is under a duty seasonably toamend a prior response to an interrogatory,request for production, or request foradmission if the party learns that the responseis in some material respect incomplete orincorrect and if the additional or correctiveinformation has not otherwise been madeknown to the other parties during thediscovery 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 individualname, whose address shall be stated. Anunrepresented party shall sign the disclosureand state the party's address. The signature ofthe attorney or party constitutes a certificationthat to the best of the signer's knowledge,information, and belief, formed after areasonable inquiry, the disclosure is completeand correct as of the time it is made.

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(2) Every discovery request, response, orobjection made by a party represented by anattorney shall be signed by the attorney ofrecord in the attorney's individual name,whose address shall be stated. Anunrepresented party shall sign the request,response, or objection and state the party'saddress. The signature of the attorney orparty constitutes a certification that to the bestof the signer's knowledge, information, andbelief, formed after a reasonable inquiry, therequest, response, or objection is:

(A) consistent with these rules andwarranted by existing law or a good faithargument for the extension, modification,or reversal of existing law;

(B) not interposed for any improperpurpose, such as to harass or to causeunnecessary delay or needless increase inthe cost of litigation; and

(C) not unreasonable or undulyburdensome or expensive, given theneeds of the case, the discovery alreadyhad in the case, the amount incontroversy, and the importance of theissues at stake in the litigation.

If a request, response, or objection is notsigned, it shall be stricken unless it is signedpromptly after the omission is called to theattention of the party making the request,response, or objection, and a party shall not beobligated to take any action with respect to ituntil it is signed.

(3) If without substantial justification acertification is made in violation of the rule,the court, upon motion or upon its owninitiative, shall impose upon the person whomade the certification, the party on whosebehalf the disclosure, request, response, orobjection is made, or both, an appropriatesanction, which may include an order to paythe amount of the reasonable expensesincurred because of the violation, including areasonable attorney's fee.


Rules Committee Notes

2002 RevisionRCFC 26 has been revised to parallel the

structure and content of its counterpart in theFRCP. The limited number of changes to thecurrent FRCP, as amended in 2000, reflect thosedeemed necessary to accommodate the nature andjurisdiction of this court. Except for these changes,the rule shown conforms fully to the text of FRCP26. Because the Appendix A Early Meeting ofCounsel substantially accomplishes the samepurpose as the FRCP 26(f) Conference of Parties,the timing of initial disclosures was keyed to theformer. Consequently, in lieu of the language ofFRCP 26(f), cross reference is made to AppendixA ¶ 3.

2007 AmendmentRule 26 has been amended to reflect the

changes to subdivisions (a) and (b) of FRCP 26that became effective December 1, 2006. Thechanges to subdivision (f) of FRCP 26 that becameeffective December 1, 2006, were also adopted bythe court but appear as changes to Appendix A, ¶ 3.

Rule 27. Depositions Before Action or PendingAppeal

(a) Before Action.(1) Petition. A person who desires to

perpetuate testimony regarding any matter thatmay be cognizable in the court may file averified petition. The petition shall be entitledin the name of the petitioner and shall show:1, that the petitioner expects to be a party toan action cognizable in the court but ispresently unable to bring it or cause it to bebrought, 2, the subject matter of the expectedaction and the petitioner's interest therein, 3,the facts which the petitioner desires toestablish by the proposed testimony and thereasons for desiring to perpetuate it, 4, [Notused.], and 5, the names and addresses of thepersons to be examined and the substance ofthe testimony which the petitioner expects toelicit from each, and shall ask for an orderauthorizing the petitioner to take thedepositions of the persons to be examinednamed in the petition, for the purpose ofperpetuating their testimony.

(2) Notice and Service. The petition

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shall be served upon the United States in thesame manner as a complaint. See RCFC 4.The petitioner may thereafter, by motionserved upon counsel for the United States (seeRCFC 5), request a hearing or the court may,sua sponte, by order, set a hearing on thepetition.

(3) Order and Examination. If thecourt is satisfied that the perpetuation of thetestimony may prevent a failure or delay ofjustice, it shall make an order designating ordescribing the persons whose depositions maybe taken and specifying the subject matter ofthe examination and whether the depositionsshall be taken upon oral examination orwritten interrogatories. The depositions maythen be taken in accordance with these rules;and the court may make orders of thecharacter provided for by RCFC 34 and 35.

(4) Use of Deposition. If a deposition toperpetuate testimony is taken under theserules, it may be used in any action involvingthe same subject matter subsequently broughtin this court, in accordance with theprovisions of RCFC 32(a).(b) Pending Appeal. If an appeal has been

taken from a judgment of the court or before thetaking of an appeal if the time therefor has notexpired, the court may allow the taking of thedepositions of witnesses to perpetuate theirtestimony for use in the event of furtherproceedings in this court. In such case the partywho desires to perpetuate the testimony may makea motion for leave to take the depositions, upon thesame notice and service thereof as if the action waspending in this court. The motion shall show (1)the names and addresses of persons to be examinedand the substance of the testimony which the partyexpects to elicit from each; (2) the reasons forperpetuating their testimony. If the court finds thatthe perpetuation of the testimony is proper to avoida failure or delay of justice, it may make an orderallowing the depositions to be taken and may makeorders of the character provided for by RCFC 34and 35, and thereupon the depositions may betaken and used in the same manner and under thesame conditions as are prescribed in these rules fordepositions taken in actions pending in this court.

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



RCFC 27 closely parallels FRCP 27, the onlydifferences being those necessary for compatibilitywith the jurisdiction and other rules of the court.

Rule 28. Persons Before Whom DepositionsMay Be Taken

(a) Within the United States. Within theUnited States or within a territory or insularpossession subject to the jurisdiction of the UnitedStates, depositions shall be taken before an officerauthorized to administer oaths by the laws of theUnited States or of the place where theexamination is held, or before a person appointedby the court. A person so appointed has power toadminister oaths and take testimony. The termofficer as used in RCFC 30, 31 and 32 includes aperson appointed by the court or designated by theparties under RCFC 29.

(b) In Foreign Countries. Depositions maybe taken in a foreign country (1) pursuant to anyapplicable treaty or convention, or (2) pursuant toa letter of request (whether or not captioned a letterrogatory), or (3) on notice before a personauthorized to administer oaths in the place wherethe examination is held, either by the law thereof orby the law of the United States, or (4) before aperson commissioned by the court, and a person socommissioned shall have the power by virtue of thecommission to administer any necessary oath andtake testimony. A commission or a letter of requestshall be issued on application and notice and onterms that are just and appropriate. It is notrequisite to the issuance of a commission or a letterof request that the taking of the deposition in anyother manner is impracticable or inconvenient; andboth a commission and a letter of request may beissued in proper cases. A notice or commissionmay designate the person before whom thedeposition is to be taken either by name ordescriptive title. A letter of request may beaddressed "To the Appropriate Authority in [herename the country]." When a letter of request orany other device is used pursuant to any applicabletreaty or convention, it shall be captioned in theform prescribed by that treaty or convention.

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Evidence obtained in response to a letter of requestneed not be excluded merely because it is not averbatim transcript, because the testimony was nottaken under oath, or because of any similardeparture from the requirements for depositionstaken within the United States under these rules.

(c) Disqualification for Interest. Nodeposition shall be taken before a person who is arelative or employee or attorney or counsel of anyof the parties, or is a relative or employee of suchattorney or counsel, or is financially interested inthe action.



RCFC 28 parallels in form and content FRCP28. The single difference between the two rulesoccurs in subdivision (a): the court’s ruleeliminates the reference to other courts by omittingthe phrasing “in which the action is pending.”

Rule 29. Stipulations Regarding DiscoveryProcedure

Unless otherwise directed by the court, theparties may by written stipulation (1) provide thatdepositions may be taken before any person, at anytime or place, upon any notice, and in any mannerand when so taken may be used like otherdepositions, and (2) modify other proceduresgoverning or limitations placed upon discovery,except that stipulations extending the timeprovided in RCFC 33, 34, and 36 for responses todiscovery may, if they would interfere with anytime set for completion of discovery, for hearing ofa motion, or for trial, be made only with theapproval of the court.



RCFC 29 is identical to its FRCP counterpart.

Rule 30. Depositions Upon Oral Examination(a) When Depositions May Be Taken;

When Leave Required.(1) A party may take the testimony of any

person, including a party, by deposition uponoral examination without leave of court exceptas provided in paragraph (2). The attendanceof witnesses may be compelled by subpoenaas provided in RCFC 45.

(2) A party must obtain leave of court,which shall be granted to the extent consistentwith the principles stated in RCFC 26(b)(2), ifthe person to be examined is confined inprison or if, without the written stipulation ofthe parties,

(A) a proposed deposition wouldresult in more than ten depositions beingtaken under this rule or RCFC 31 by theplaintiffs, or by the defendants, or bythird-party defendants;

(B) the person to be examinedalready has been deposed in the case; or

(C) a party seeks to take adeposition before the time specified inRCFC 26(d) unless the notice contains acertification, with supporting facts, thatthe person to be examined is expected toleave the United States and beunavailable for examination in thiscountry unless deposed before that time.

(b) Notice of Examination: GeneralRequirements; Method of Recording;Production of Documents and Things;Deposition of Organization; Deposition byTelephone.

(1) A party desiring to take thedeposition of any person upon oralexamination shall give reasonable notice inwriting to every other party to the action. Thenotice shall state the time and place for takingthe deposition and the name and address ofeach person to be examined, if known, and, ifthe name is not known, a general descriptionsufficient to identify the person or theparticular class or group to which the personbelongs. If a subpoena duces tecum is to beserved on the person to be examined, thedesignation of the materials to be produced asset forth in the subpoena shall be attached to,or included in, the notice.

(2) The party taking the deposition shallstate in the notice the method by which thetestimony shall be recorded. Unless the court

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orders otherwise, it may be recorded bysound, sound-and-visual, or stenographicmeans, and the party taking the depositionshall bear the cost of the recording. Any partymay arrange for a transcription to be madefrom the recording of a deposition taken bynon-stenographic means.

(3) With prior notice to the deponent andother parties, any party may designate anothermethod to record the deponent's testimony inaddition to the method specified by the persontaking the deposition. The additional recordor transcript shall be made at that party'sexpense unless the court otherwise orders.

(4) Unless otherwise agreed by theparties, a deposition shall be conducted beforean officer appointed or designated underRCFC 28 and shall begin with a statement onthe record by the officer that includes (A) theofficer's name and business address; (B) thedate, time, and place of the deposition; (C) thename of the deponent; (D) the administrationof the oath or affirmation to the deponent; and(E) an identification of all persons present. Ifthe deposition is recorded other thanstenographically, the officer shall repeat items(A) through (C) at the beginning of each unitof recorded tape or other recording medium.The appearance or demeanor of deponents orattorneys shall not be distorted throughcamera or sound-recording techniques. At theend of the deposition, the officer shall state onthe record that the deposition is complete andshall set forth any stipulations made bycounsel concerning the custody of thetranscript or recording and the exhibits, orconcerning other pertinent matters.

(5) The notice to a party deponent maybe accompanied by a request made incompliance with RCFC 34 for the productionof documents and tangible things at the takingof the deposition. The procedure of RCFC 34shall apply to the request.

(6) A party may in the party's notice andin a subpoena name as the deponent a publicor private corporation or a partnership orassociation or governmental agency anddescribe with reasonable particularity thematters on which examination is requested. In

that event, the organization so named shalldesignate one or more officers, directors, ormanaging agents, or other persons whoconsent to testify on its behalf, and may setforth, for each person designated, the matterson which the person will testify. A subpoenashall advise a non-party organization of itsduty to make such a designation. The personsso designated shall testify as to matters knownor reasonably available to the organization.This subdivision (b)(6) does not precludetaking a deposition by any other procedureauthorized in these rules.

(7) The parties may stipulate in writingor the court may upon motion order that adeposition be taken by telephone or otherremote electronic means. For the purposes ofthis rule and RCFC 28(a), a deposition takenby such means is taken at the place where thedeponent is to answer questions.(c) Examination and Cross-Examination;

Record of Examination; Oath; Objections.Examination and cross-examination of witnessesmay proceed as permitted at the trial under theprovisions of the Federal Rules of Evidence exceptRules 103 and 615. The officer before whom thedeposition is to be taken shall put the witness onoath or affirmation and shall personally, or bysomeone acting under the officer's direction and inthe officer's presence, record the testimony of thewitness. The testimony shall be takenstenographically or recorded by any other methodauthorized by subdivision (b)(2) of this rule. Allobjections made at the time of the examination tothe qualifications of the officer taking thedeposition, to the manner of taking it, to theevidence presented, to the conduct of any party, orto any other aspect of the proceedings shall benoted by the officer upon the record of thedeposition; but the examination shall proceed, withthe testimony being taken subject to the objections.In lieu of participating in the oral examination,parties may serve written questions in a sealedenvelope on the party taking the deposition and theparty taking the deposition shall transmit them tothe officer, who shall propound them to the witnessand record the answers verbatim.

(d) Schedule and Duration; Motion toTerminate or Limit Examination.

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(1) Any objection during a depositionmust be stated concisely and in a non-argumentative and non-suggestive manner. Aperson may instruct a deponent not to answeronly 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 thecourt or stipulated by the parties, a depositionis limited to one day of seven hours. Thecourt must allow additional time consistentwith RCFC 26(b)(2) if needed for a fairexamination of the deponent or if thedeponent or another person, or othercircumstance, impedes or delays theexamination.

(3) If the court finds that anyimpediment, delay, or other conduct hasfrustrated the fair examination of thedeponent, it may impose upon the personsresponsible an appropriate sanction, includingthe reasonable costs and attorney's feesincurred by any parties as a result thereof.

(4) At any time during the deposition, onmotion of a party or of the deponent and upona showing that the examination is beingconducted in bad faith or in such manner asunreasonably to annoy, embarrass, or oppressthe deponent or party, the court may order theofficer conducting the examination to ceaseforthwith from taking the deposition, or maylimit the scope and manner of the taking of thedeposition as provided in RCFC 26(c). If theorder made terminates the examination, it maybe resumed thereafter only upon the order ofthe court. Upon demand of the objectingparty or deponent, the taking of the depositionmust be suspended for the time necessary tomake a motion for an order. The provisionsof RCFC 37(a)(4) apply to the award ofexpenses incurred in relation to the motion.(e) Review by Witness; Changes; Signing.

If requested by the deponent or a party beforecompletion of the deposition, the deponent shallhave 30 days after being notified by the officer thatthe transcript or recording is available in which toreview the transcript or recording and, if there arechanges in form or substance, to sign a statementreciting such changes and the reasons given by the

deponent for making them. The officer shallindicate in the certificate prescribed by subdivision(f)(1) whether any review was requested and, if so,shall append any changes made by the deponentduring the period allowed.

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

(1) The officer must certify that thewitness was duly sworn by the officer and thatthe deposition is a true record of the testimonygiven by the witness. This certificate must bein writing and accompany the record of thedeposition. Unless otherwise ordered by thecourt, the officer must securely seal thedeposition in an envelope or package indorsedwith the title of the action and marked"Deposition of [here insert name of witness]"and must promptly send it to the attorney whoarranged for the transcript or recording, whomust store it under conditions that will protectit against loss, destruction, tampering, ordeterioration. Documents and thingsproduced for inspection during theexamination of the witness must, upon therequest of a party, be marked for identificationand annexed to the deposition and may beinspected and copied by any party, except thatif the person producing the materials desiresto retain them the person may (A) offer copiesto be marked for identification and annexed tothe deposition and to serve thereafter asoriginals if the person affords to all partiesfair opportunity to verify the copies bycomparison with the originals, or (B) offer theoriginals to be marked for identification, aftergiving to each party an opportunity to inspectand copy them, in which event the materialsmay then be used in the same manner as ifannexed to the deposition. Any party maymove for an order that the original be annexedto and returned with the deposition to thecourt, pending final disposition of the case.

(2) Unless otherwise ordered by the courtor agreed by the parties, the officer shallretain stenographic notes of any depositiontaken stenographically or a copy of therecording of any deposition taken by anothermethod. Upon payment of reasonable chargestherefor, the officer shall furnish a copy of the

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transcript or other recording of the depositionto 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 andproceed therewith and another party attends inperson or by attorney pursuant to the notice,the court may order the party giving the noticeto pay to such other party the reasonableexpenses incurred by that party and thatparty's attorney in attending, includingreasonable attorney's fees.

(2) If the party giving the notice of thetaking of a deposition of a witness fails toserve a subpoena upon the witness and thewitness because of such failure does notattend, and if another party attends in personor by attorney because that party expects thedeposition of that witness to be taken, thecourt may order the party giving the notice topay to such other party the reasonableexpenses incurred by that party and thatparty's attorney in attending, includingreasonable attorney's fees.



RCFC 30 parallels the structure and content ofits FRCP counterpart. The limited number ofdifferences between the two rules reflects thosenecessary for compatibility with the jurisdictionand other rules of the court.

Rule 31. Depositions Upon Written Questions(a) Serving Questions; Notice.

(1) A party may take the testimony of anyperson, including a party, by deposition uponwritten questions without leave of courtexcept as provided in paragraph (2). Theattendance of witnesses may be compelled bythe use of subpoena as provided in RCFC 45.

(2) A party must obtain leave of court,which shall be granted to the extent consistentwith the principles stated in RCFC 26(b)(2), ifthe person to be examined is confined in

prison or if, without the written stipulation ofthe parties,

(A) a proposed deposition wouldresult in more than ten depositions beingtaken under this rule or RCFC 30 by theplaintiffs, or by the defendants, or bythird-party defendants;

(B) the person to be examined hasalready been deposed in the case; or

(C) a party seeks to take adeposition before the time specified inRCFC 26(d).(3) A party desiring to take a deposition

upon written questions shall serve them uponevery other party with a notice stating (1) thename and address of the person who is toanswer them, if known, and if the name is notknown, a general description sufficient toidentify the person or the particular class orgroup to which the person belongs, and (2) thename or descriptive title and address of theofficer before whom the deposition is to betaken. A deposition upon written questionsmay be taken of a public or privatecorporation or a partnership or association orgovernmental agency in accordance with theprovisions of RCFC 30(b)(6).

(4) Within 14 days after the notice andwritten questions are served, a party mayserve cross questions upon all other parties.Within 7 days after being served with crossquestions, a party may serve redirect questionsupon all other parties. Within 7 days afterbeing served with redirect questions, a partymay serve recross questions upon all otherparties. The court may for cause shownenlarge or shorten the time.(b) Officer to Take Responses and Prepare

Record. A copy of the notice and copies of allquestions served shall be delivered by the partytaking the deposition to the officer designated inthe notice, who shall proceed promptly, in themanner provided by RCFC 30(c), (e), and (f), totake the testimony of the witness in response to thequestions and to prepare, certify, and deliver thedeposition to the party taking it, attaching theretothe copy of the notice and the questions receivedby the officer.

(c) Notice of Receipt. When the deposition

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is received, the party taking it shall promptly givenotice thereof to all other parties.



RCFC 31 closely parallels the text of FRCP31. Subdivision (a) is identical in wording to thecurrent FRCP. Subdivisions (b) and (c) are nearlyidentical, the only differences being thosenecessary to reflect the court's practice of notrequiring depositions to be filed.

Rule 32. Use of Depositions in CourtProceedings

(a) Use of Depositions. At the trial or uponthe hearing of a motion or an interlocutoryproceeding, any part or all of a deposition, so far asadmissible under the rules of evidence applied asthough the witness were then present andtestifying, may be used against any party who waspresent or represented at the taking of thedeposition or who had reasonable notice thereof, inaccordance with any of the following provisions:

(1) Any deposition may be used by anyparty for the purpose of contradicting orimpeaching the testimony of deponent as awitness, or for any other purpose permitted bythe Federal Rules of Evidence.

(2) The deposition of a party or ofanyone who at the time of taking thedeposition was an officer, director, ormanaging agent, or a person designated underRCFC 30(b)(6) or 31(a) to testify on behalf ofa public or private corporation, partnership orassociation or governmental agency which isa party may be used by an adverse party forany purpose.

(3) The deposition of a witness, whetheror not a party, may be used by any party forany 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 theabsence of the witness was procured bythe party offering the deposition; or

(C) that the witness is unable toattend or testify because of age, illness,

infirmity, or imprisonment; or (D) that the party offering the

deposition has been unable to procure theattendance of the witness by subpoena;or

(E) upon application and notice, thatthe witness is at a greater distance than100 miles from the place of trial orhearing, unless the court also finds (i)that the absence of the witness wasprocured by the party offering thedeposition or (ii) that it is not in theinterest of justice, with due regard to theimportance of presenting the testimonyof witnesses orally in open court, toallow the deposition to be used; or

(F) upon application and notice, thatsuch exceptional circumstances exist asto make it desirable, in the interest ofjustice and with due regard to theimportance of presenting the testimonyof witnesses orally in open court, toallow the deposition to be used.

A deposition taken without leave of courtpursuant to a notice under RCFC 30(a)(2)(C)shall not be used against a party whodemonstrates that, when served with thenotice, it was unable through the exercise ofdiligence to obtain counsel to represent it atthe taking of the deposition; nor shall adeposition be used against a party who,having received less than 11 days notice of adeposition, has promptly upon receiving suchnotice filed a motion for a protective orderunder RCFC 26(c)(2) requesting that thedeposition not be held or be held at a differenttime or place and such motion is pending atthe time the deposition is held.

(4) If only part of a deposition is offeredin evidence by a party, an adverse party mayrequire the offeror to introduce any other partwhich ought in fairness to be considered withthe part introduced, and any party mayintroduce any other parts.

Substitution of parties pursuant to RCFC25 does not affect the right to use depositionspreviously taken; and, when an action hasbeen brought in any court of the United Statesor of any state and another action involving

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the same subject matter is afterward broughtbetween the same parties or theirrepresentatives or successors in interest, alldepositions lawfully taken and duly filed inthe former action may be used in the latter asif originally taken therefor. A depositionpreviously taken may also be used aspermitted 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 thetrial or hearing to receiving in evidence anydeposition or part thereof for any reason whichwould require the exclusion of the evidence if thewitness were then present and testifying.

(c) Form of Presentation. Except asotherwise directed by the court, a party offeringdeposition testimony pursuant to this rule mayoffer it in stenographic or nonstenographic form,but, if in nonstenographic form, the party shall alsoprovide the court with a transcript of the portionsso offered.

(d) Effect of Errors and Irregularities inDepositions.

(1) As to Notice. All errors andirregularities in the notice for taking adeposition are waived unless written objectionis promptly served upon the party giving thenotice.

(2) As to Disqualification of Officer.Objection to taking a deposition because ofdisqualification of the officer before whom itis to be taken is waived unless made beforethe taking of the deposition begins or as soonthereafter as the disqualification becomesknown or could be discovered with reasonablediligence.

(3) As to Taking of Deposition. (A) Objections to the competency of

a witness or to the competency,relevancy, or materiality of testimony arenot waived by failure to make thembefore or during the taking of thedeposition, unless the ground of theobjection is one which might have beenobviated or removed if presented at thattime.

(B) Errors and irregularitiesoccurring at the oral examination in the

manner of taking the deposition, in theform of the questions or answers, in theoath or affirmation, or in the conduct ofparties, and errors of any kind whichmight be obviated, removed, or cured ifpromptly presented, are waived unlessseasonable objection thereto is made atthe taking of the deposition.

(C) Objections to the form ofwritten questions submitted under RCFC31 are waived unless served in writingupon the party propounding them withinthe time allowed for serving thesucceeding cross or other questions andwithin 5 days after service of the lastquestions authorized.(4) As to Completion and Return of

Deposition. Errors and irregularities in themanner in which the testimony is transcribedor the deposition is prepared, signed, certified,sealed, indorsed, transmitted, or otherwisedealt with by the officer under RCFC 30 and31 are waived unless a motion to suppress thedeposition or some part thereof is made withreasonable promptness after such defect is, orwith due diligence might have been,ascertained.



RCFC 32 is identical to its FRCP counterpart,except for (1) omission of the last sentence insubdivision (c), applicable only in jury trials, (2)deletion of the word "filed" in subdivision (d)(4),because this court does not require that depositionsroutinely be filed, and (3) revision ofsubparagraphs (a)(3)(B) and (E) to requireapplication and notice for the use of depositions ofa witness who is at a greater distance than 100miles from the place of trial or hearing.

Rule 33. Interrogatories to Parties(a) Availability. Without leave of court or

written stipulation, any party may serve upon anyother party written interrogatories, not exceeding25 in number including all discrete subparts, to beanswered by the party served or, if the party served

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is a public or private corporation or a partnershipor association or governmental agency, by anyofficer or agent, who shall furnish such informationas is available to the party. Leave to serveadditional interrogatories shall be granted to theextent consistent with the principles ofRCFC 26(b)(2). Without leave of court or writtenstipulation, interrogatories may not be servedbefore 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 theobjecting party shall state the reasons forobjection and shall answer to the extent theinterrogatory is not objectionable.

(2) The answers are to be signed by theperson making them, and the objectionssigned by the attorney making them.

(3) The party upon whom theinterrogatories have been served shall serve acopy of the answers, and objections if any,within 30 days after the service of theinterrogatories. A shorter or longer time maybe directed by the court or, in the absence ofsuch an order, agreed to in writing by theparties subject to RCFC 29.

(4) All grounds for an objection to aninterrogatory shall be stated with specificity.Any ground not stated in a timely objection iswaived unless the party's failure to object isexcused by the court for good cause shown.

(5) The party submitting theinterrogatories may move for an order underRCFC 37(a) with respect to any objection toor other failure to answer an interrogatory.(c) Scope; Use at Trial. Interrogatories may

relate to any matters which can be inquired intounder RCFC 26(b)(1), and the answers may beused to the extent permitted by the rules ofevidence.

An interrogatory otherwise proper is notnecessarily objectionable merely because ananswer to the interrogatory involves an opinion orcontention that relates to fact or the application oflaw to fact, but the court may order that such aninterrogatory need not be answered until afterdesignated 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 bederived or ascertained from the business records,including electronically stored information, of theparty upon whom the interrogatory has been servedor from an examination, audit or inspection of suchbusiness records, including a compilation, abstractor summary thereof, and the burden of deriving orascertaining the answer is substantially the samefor the party serving the interrogatory as for theparty served, it is a sufficient answer to suchinterrogatory to specify the records from which theanswer may be derived or ascertained and to affordto the party serving the interrogatory reasonableopportunity to examine, audit or inspect suchrecords and to make copies, compilations, abstractsor summaries. A specification shall be in sufficientdetail to permit the interrogating party to locate andto identify, as readily as can the party served, therecords from which the answer may be ascertained.



RCFC 33 is identical to FRCP 33.


corresponding changes to FRCP 33 that becameeffective December 1, 2006.

Rule 34. Production of Documents,Electronically Stored Information, and Thingsand Entry Upon Land for Inspection and OtherPurposes

(a) Scope. Any party may serve on any otherparty a request (1) to produce and permit the partymaking the request, or someone acting on therequestor’s behalf, to inspect, copy, test, or sampleany designated documents or electronically storedinformation—including writings, drawings, graphs,charts, photographs, sound recordings, images, andother data or data compilations stored in anymedium from which information can beobtained—translated, if necessary, by therespondent into reasonably usable form, or to

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inspect, copy, test, or sample any designatedtangible things which constitute or contain matterswithin the scope of RCFC 26(b) and which are inthe possession, custody or control of the party uponwhom the request is served; or (2) to permit entryupon designated land or other property in thepossession or control of the party upon whom therequest is served for the purpose of inspection andmeasuring, surveying, photographing, testing, orsampling the property or any designated object oroperation thereon, within the scope of RCFC 26(b).

(b) Procedure. The request shall set forth,either by individual item or by category, the itemsto be inspected, and describe each with reasonableparticularity. The request shall specify a reasonabletime, place, and manner of making the inspectionand performing the related acts. The request mayspecify the form or forms in which electronicallystored information is to be produced. Withoutleave of court or written stipulation, a request maynot be served before the time specified in RCFC26(d).

The party upon whom the request is servedshall serve a written response within 30 days afterthe service of the request. A shorter or longer timemay be directed by the court or, in the absence ofsuch an order, agreed to by the parties, subject toRCFC 29. The response shall state, with respect toeach item or category, that inspection and relatedactivities will be permitted as requested, unless therequest is objected to, including an objection to therequested form or forms for producingelectronically stored information, stating thereasons for objection. If objection is made to partof an item or category, the part shall be specifiedand inspection permitted of the remaining parts. Ifobjection is made to the requested form or formsfor producing electronically stored information—orif no form was specified in the request—theresponding party must state the form or forms itintends to use. The party submitting the requestmay move for an order under RCFC 37(a) withrespect to any objection to or other failure torespond to the request or any part thereof, or anyfailure to permit inspection as requested.

Unless the parties otherwise agree, or thecourt otherwise orders:

(i) a party who produces documents forinspection shall produce them as they are kept in

the usual course of business or shall organize andlabel them to correspond with the categories in therequest;

(ii) if a request does not specify the form orforms for producing electronically storedinformation, a responding party must produce theinformation in a form or forms in which it isordinarily maintained or in a form or forms that arereasonably usable; and

(iii) a party need not produce the sameelectronically stored information in more than oneform.

(c) Persons Not Parties. A person not a partyto the action may be compelled to producedocuments and things or to submit to an inspectionas provided in RCFC 45.






Rule 35. Physical and Mental Examinations ofPersons

(a) Order for Examination. When themental or physical condition (including the bloodgroup) of a party or of a person in the custody orunder the legal control of a party, is in controversy,the court may order the party to submit to aphysical or mental examination by a suitablylicensed or certified examiner or to produce forexamination the person in the party's custody orlegal control. The order may be made only onmotion for good cause shown and upon notice tothe person to be examined and to all parties andshall specify the time, place, manner, conditions,and scope of the examination and the person orpersons 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) orthe person examined, the party causing the

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examination to be made shall deliver to therequesting party a copy of the detailed writtenreport of the examiner setting out theexaminer's findings, including results of alltests made, diagnoses and conclusions,together with like reports of all earlierexaminations of the same condition. Afterdelivery the party causing the examinationshall be entitled upon request to receive fromthe party against whom the order is made alike report of any examination, previously orthereafter made, of the same condition, unless,in the case of a report of examination of aperson not a party, the party shows that theparty is unable to obtain it. The court onmotion may make an order against a partyrequiring delivery of a report on such terms asare just, and if an examiner fails or refuses tomake a report the court may exclude theexaminer's testimony if offered at trial.

(2) By requesting and obtaining a reportof the examination so ordered or by taking thedeposition of the examiner, the partyexamined waives any privilege the party mayhave in that action or any other involving thesame controversy, regarding the testimony ofevery other person who has examined or maythereafter examine the party in respect of thesame mental or physical condition.

(3) This subdivision applies toexaminations made by agreement of theparties, unless the agreement expresslyprovides otherwise. This subdivision does notpreclude discovery of a report of an examineror the taking of a deposition of the examinerin accordance with the provisions of any otherrule.



RCFC 35 is identical to FRCP 35, except forthe omission of the words “in which the action ispending” in subdivision (a).

Rule 36. Requests for Admission(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 ofRCFC 26(b)(1) set forth in the request that relate tostatements or opinions of fact or of the applicationof law to fact, including the genuineness of anydocuments described in the request. Copies ofdocuments shall be served with the request unlessthey have been or are otherwise furnished or madeavailable for inspection and copying. Withoutleave of court or written stipulation, requests foradmission may not be served before the timespecified in RCFC 26(d).

Each matter of which an admission isrequested shall be separately set forth. The matteris admitted unless, within 30 days after service ofthe request, or within such shorter or longer time asthe court may allow or as the parties may agree toin writing, subject to RCFC 29, the party to whomthe request is directed serves upon the partyrequesting the admission a written answer orobjection addressed to the matter, signed by theparty or by the party's attorney. If objection ismade, the reasons therefor shall be stated. Theanswer shall specifically deny the matter or setforth in detail the reasons why the answering partycannot truthfully admit or deny the matter. A denialshall fairly meet the substance of the requestedadmission, and when good faith requires that aparty qualify an answer or deny only a part of thematter of which an admission is requested, theparty shall specify so much of it as is true andqualify or deny the remainder. An answering partymay not give lack of information or knowledge asa reason for failure to admit or deny unless theparty states that the party has made reasonableinquiry and that the information known or readilyobtainable by the party is insufficient to enable theparty to admit or deny. A party who considers thata matter of which an admission has been requestedpresents a genuine issue for trial may not, on thatground alone, object to the request; the party may,subject to the provisions of RCFC 37(c), deny thematter or set forth reasons why the party cannotadmit or deny it.

The party who has requested the admissionsmay move to determine the sufficiency of theanswers or objections. Unless the court determinesthat an objection is justified, it shall order that ananswer be served. If the court determines that an

46

answer does not comply with the requirements ofthis rule, it may order either that the matter isadmitted or that an amended answer be served.The court may, in lieu of these orders, determinethat final disposition of the request be made at apre-trial conference or at a designated time prior totrial. The provisions of RCFC 37(a)(4) apply tothe award of expenses incurred in relation to themotion.

(b) Effect of Admission. Any matteradmitted under this rule is conclusively establishedunless the court on motion permits withdrawal oramendment of the admission. Subject to theprovision of RCFC 16 governing amendment of apre-trial order, the court may permit withdrawal oramendment when the presentation of the merits ofthe action will be subserved thereby and the partywho obtained the admission fails to satisfy thecourt that withdrawal or amendment will prejudicethat party in maintaining the action or defense onthe merits. Any admission made by a party underthis rule is for the purpose of the pending actiononly and is not an admission by the party for anyother purpose nor may it be used against the partyin any other proceeding.




Rule 37. Failure to Make Disclosures orCooperate in Discovery; Sanctions

(a) Motion for Order CompellingDisclosure or Discovery. A party, uponreasonable notice to other parties and all personsaffected thereby, may apply for an ordercompelling disclosure or discovery as follows:

(1) Appropriate Court. [Not used.](2) Motion.

(A) If a party fails to make adisclosure required by RCFC 26(a), anyother party may move to compeldisclosure and for appropriate sanctions.The motion must include a certificationthat the movant has in good faithconferred or attempted to confer with theparty not making the disclosure in an

effort to secure the disclosure withoutcourt action.

(B) If a deponent fails to answer aquestion propounded or submitted underRCFC 30 or 31, or a corporation or otherentity fails to make a designation underRCFC 30(b)(6) or 31(a), or a party failsto answer an interrogatory submittedunder RCFC 33, or if a party, in responseto a request for inspection submittedunder RCFC 34, fails to respond thatinspection will be permitted as requestedor fails to permit inspection as requested,the discovering party may move for anorder compelling an answer, or adesignation, or an order compellinginspection in accordance with therequest. The motion must include acertification that the movant has in goodfaith conferred or attempted to conferwith the person or party failing to makethe discovery in an effort to secure theinformation or material without courtaction. When taking a deposition on oralexamination, the proponent of thequestion may complete or adjourn theexamination before applying for anorder.(3) Evasive or Incomplete Disclosure,

Answer, or Response. For purposes of thissubdivision an evasive or incompletedisclosure, answer, or response is to be treatedas a failure to disclose, answer, or respond.

(4) Expenses and Sanctions. (A) If the motion is granted or if the

disclosure or requested discovery isprovided after the motion was filed, thecourt shall, after affording an opportunityto be heard, require the party or deponentwhose conduct necessitated the motionor the party or attorney advising suchconduct or both of them to pay to themoving party the reasonable expensesincurred in making the motion, includingattorney's fees, unless the court finds thatthe motion was filed without themovant's first making a good faith effortto obtain the disclosure or discoverywithout court action, or that the opposing

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party's nondisclosure, response, orobjection was substantially justified, orthat other circumstances make an awardof expenses unjust.

(B) If the motion is denied, thecourt may enter any protective orderauthorized under RCFC 26(c) and shall,after affording an opportunity to beheard, require the moving party or theattorney filing the motion or both ofthem to pay to the party or deponent whoopposed the motion the reasonableexpenses incurred in opposing themotion, including attorney's fees, unlessthe court finds that the making of themotion was substantially justified or thatother circumstances make an award ofexpenses unjust.

(C) If the motion is granted in partand denied in part, the court may enterany protective order authorized underRCFC 26(c) and may, after affording anopportunity to be heard, apportion thereasonable expenses incurred in relationto the motion among the parties andpersons in a just manner.

(b) Failure to Comply With Order.(1) Sanctions Concerning Deponents. If

a deponent fails to be sworn or to answer aquestion after being directed to do so by thecourt, the failure may be considered acontempt of court.

(2) Sanctions Concerning Parties. If aparty or an officer, director, or managingagent of a party or a person designated underRCFC 30(b)(6) or 31(a) to testify on behalf ofa party fails to obey an order to provide orpermit discovery, including an order madeunder subdivision (a) of this rule or RCFC 35,or if a party fails to obey an order enteredunder RCFC 16(b), the court may make suchorders in regard to the failure as are just, andamong others the following:

(A) An order that the mattersregarding which the order was made orany other designated facts shall be takento be established for the purposes of theaction in accordance with the claim ofthe party obtaining the order;

(B) An order refusing to allow thedisobedient party to support or opposedesignated claims or defenses, orprohibiting that party from introducingdesignated matters in evidence;

(C) An order striking out pleadingsor parts thereof, or staying furtherproceedings until the order is obeyed, ordismissing the action or proceeding orany part thereof, or rendering a judgmentby default against the disobedient party;

(D) In lieu of any of the foregoingorders or in addition thereto, an ordertreating as a contempt of court the failureto obey any orders except an order tosubmit to a physical or mentalexamination;

(E) Where a party has failed tocomply with an order under RCFC 35(a)requiring the party to produce another forexamination, such orders as are listed inparagraphs (A), (B) and (C) of thissubdivision, unless the party failing tocomply shows that that party is unable toproduce such person for examination.

In lieu of any of the foregoingorders or in addition thereto, the courtshall require the party failing to obey theorder or the attorney advising that partyor both to pay the reasonable expenses,including attorney's fees, caused by thefailure, unless the court finds that thefailure was substantially justified or thatother circumstances make an award ofexpenses unjust.

(c) Failure to Disclose; False or MisleadingDisclosure; Refusal to Admit.

(1) A party that without substantialjustification fails to disclose informationrequired by RCFC 26(a) or 26(e)(1), or toamend a prior response to discovery asrequired by RCFC 26(e)(2), is not, unlesssuch failure is harmless, permitted to use asevidence at a trial, at a hearing, or on a motionany witness or information not so disclosed.In addition to or in lieu of this sanction, thecourt, on motion and after affording anopportunity to be heard, may impose otherappropriate sanctions. In addition to requiring

48

payment of reasonable expenses, includingattorney's fees, caused by the failure, thesesanctions may include any of the actionsauthorized under RCFC 37(b)(2)(A), (B), and(C).

(2) If a party fails to admit the genuine-ness of any document or the truth of anymatter as requested under RCFC 36, and if theparty requesting the admissions thereafterproves the genuineness of the document or thetruth of the matter, the requesting party mayapply to the court for an order requiring theother party to pay the reasonable expensesincurred in making that proof, includingreasonable attorney's fees. The court shallmake the order unless it finds that (A) therequest was held objectionable pursuant toRCFC 36(a), or (B) the admission sought wasof no substantial importance, or (C) the partyfailing to admit had reasonable ground tobelieve that the party might prevail on thematter, or (D) there was other good reason forthe failure to admit.(d) Failure of Party to Attend at Own

Deposition or Serve Answers to Interrogatoriesor Respond to Request for Inspection. If a partyor an officer, director, or managing agent of a partyor a person designated under RCFC 30(b)(6) or31(a) to testify on behalf of a party fails (1) toappear before the officer who is to take thedeposition, after being served with a proper notice,or (2) to serve answers or objections tointerrogatories submitted under RCFC 33, afterproper service of the interrogatories, or (3) to servea written response to a request for inspectionsubmitted under RCFC 34, after proper service ofthe request, the court in which the action is pendingon motion may make such orders in regard to thefailure as are just, and among others it may takeany action authorized under subparagraphs (A),(B), and (C) of subdivision (b)(2) of this rule. Anymotion specifying a failure under clause (2) or (3)of this subdivision shall include a certification thatthe movant has in good faith conferred orattempted to confer with the party failing to answeror respond in an effort to obtain such answer orresponse without court action. In lieu of any orderor in addition thereto, the court shall require theparty failing to act or the attorney advising that

party or both to pay the reasonable expenses,including attorney's fees, caused by the failureunless the court finds that the failure wassubstantially justified or that other circumstancesmake an award of expenses unjust.

The failure to act described in this subdivisionmay not be excused on the ground that thediscovery sought is objectionable unless the partyfailing to act has a pending motion for a protectiveorder as provided by RCFC 26(c).

(e) Subpoena of Person in Foreign Country. [Abrogated in FRCP.]

(f) Electronically Stored Information.Absent exceptional circumstances, a court may notimpose sanctions under these rules on a party forfailing to provide electronically stored informationlost as a result of the routine, good-faith operationof an electronic information system.

(g) Failure to Participate in the Framing ofa Discovery Plan. If a party or a party's attorneyfails to participate in good faith in the developmentand submission of a proposed discovery plan asrequired by Appendix A ¶ 3, the court may, afteropportunity for hearing, require such party orattorney to pay to any other party the reasonableexpenses, including attorney's fees, caused by thefailure.



RCFC 37 parallels the structure and content ofFRCP 37. The limited number of differencesbetween the two rules reflects those necessary forcompatibility with the jurisdiction and other rulesof the court.



VI. TRIALS

Rule 38. Jury Trial of Right [Not used.]

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Rule 39. Trial by Jury or by the Court [Notused.]

Rule 40. Setting Cases for TrialSetting a case for trial is the responsibility of

the judge to whom the case is assigned, and may bemade (1) without request of the parties or (2) uponrequest of a party and notice to the other parties or(3) in such other manner as the court deemsexpedient. All trials shall be scheduled by thejudge by order filed with the clerk. Precedenceshall be given to actions entitled thereto by anystatute of the United States.



RCFC 40 parallels, but is not identical to,FRCP 40. Like its FRCP counterpart, however, thepurpose of the rule is to identify the responsibilityof the judge in scheduling a matter for trial. Thechanges made to the text of the rule are minor andintended to clarify the rule’s essential purpose, i.e.,that it is the judge’s responsibility to determine thedate and place of trial in accordance with 28 U.S.C.§§ 173, 798(a), and 2503(c).

Rule 40.1 Assignment and Transfer of Cases(a) After the complaint has been served on the

United States, or after recusal or disqualification ofa judge to whom a case has been assigned, the caseshall be assigned (or reassigned) forthwith to ajudge at random.

(b) To promote docket efficiency, to conformto the requirements of any case management plan,or for the efficient administration of justice, a casemay be transferred by order of the assigned judgeto another judge upon the agreement of bothjudges. A motion to transfer may be initiated by aparty. See RCFC 40.2.

(c) The chief judge may reassign any case ifthe chief judge deems such action necessary for theefficient administration of justice.



RCFC 40.1 has no FRCP counterpart. Thesubstance of the rule formerly appeared in theserules as part of paragraph (1) of RCFC 77(f). Therenumbering of RCFC 77(f) reflects its morelogical placement in the structure of the court’srules.

The new language introduced by therule—subdivision (b)—represents a codification ofinternal procedures.

Rule 40.2 Related Cases(a) Directly Related Cases.

(1) At the time a complaint is filed, thefiling attorney (or pro se plaintiff) shall fileand serve on all parties who have appeared aNotice of Directly Related Case(s). Cases aredeemed directly related when an earlier-filedcase and the action being filed:

(A) involve the same parties and arebased on the same or similar claims; or

(B) involve the same contract,property, or patent.(2) Where a Notice of Directly Related

Case(s) is filed along with a new complaint,the clerk shall assign the case to the judge towhom the earliest-filed directly related case isassigned. If the judge to whom the relatedcase is assigned determines that the case inquestion is not in fact directly related, thejudge will return the case to the clerk forrandom assignment.

(3) Where the existence of directlyrelated cases becomes apparent only afterinitial assignment, the Notice of DirectlyRelated Case(s) shall be filed in all relatedcases, captioned in the name of the earliest-filed case. Solely for the purpose of filing thisnotice, counsel in the later-filed case mayappear in the earlier-filed case. The noticemay be accompanied by a motion to transferand a suggestion for consolidation underRCFC 42.1. The assigned judge in theearliest-filed case, after consultation with thejudge in the later-filed case, will grant or denythe motion to transfer.

(4) Content of the Notice of DirectlyRelated Case(s). The notice shall contain thetitle and case number of the related case, abrief statement of the relationship of the

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actions according to the criteria set forth insubdivision (a), and a statement addressingwhether assignment to a single judge or otheraction, including consolidation, is or is notlikely to conserve judicial resources andpromote an efficient determination of theactions. (b) Indirectly Related Cases.

(1) Whenever it appears to a party thatthere are two or more cases before the courtthat present common issues of fact and thattransfer, consolidation, or the adoption of acoordinated discovery schedule wouldsignificantly promote the efficientadministration of justice, the party may file aNotice of Indirectly Related Case(s). Thenotice shall be captioned in the name of theearliest-filed case. Solely for purposes offiling the notice, counsel may appear in anearlier-filed case.

(2) The notice shall list the name anddocket number of all indirectly related casesand shall detail the reasons supporting theproposed action. Counsel shall serve allparties in the related cases. The clerk shallfile the notice in those cases and furnish acourtesy copy of the notice to the chief judge.Solely for the purpose of responding to thenotice, counsel in the related cases mayappear in the earliest-filed case to file aresponse to the notice. The response shall befiled within 21 days after service andcaptioned in the name of the earliest-filedcase. Responses shall be served on counsel inall cases. The clerk shall file copies of theresponses in each of the cases and shallfurnish courtesy copies to the chief judge.

(3) The assigned judge of the earliest-filed case shall call a meeting of all of theassigned judges to determine what, if any,action is appropriate. The parties to eachaction shall be notified of any resultingdecision.



RCFC 40.2 has no FRCP counterpart. The

subject of the rule—Related Cases—previouslyappeared in these rules as RCFC 77(f) (as revisedby General Order No. 36). The renumbering of therule reflects its more logical placement in thestructure of the court’s rules.

Unlike the predecessor rule, RCFC 40.2recognizes two types of related cases: directlyrelated cases and indirectly related cases. Directlyrelated cases retain the definition that appliedunder former RCFC 77(f). Thus, cases that“involve the same parties and are based on thesame or similar claims” or “involve the samecontract, property, or patent” are deemed to bedirectly related. Cases that are directly relatedshare an identity of parties and/or subject matterthat, 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 ofefficiency and the conservation of resources, suchcases may warrant consolidated managementduring the pretrial stage.

In addition to recognizing two forms of relatedcases, RCFC 40.2 also prescribes the noticeprocedures that are to be followed for theidentification of such cases to the court andinterested counsel.

Rule 40.3 Complaints Against Judges(a) The Judicial Improvements Act of 2002,

28 U.S.C. § 363, directs the United States Court ofFederal Claims to prescribe rules for the filing ofcomplaints against judges of the court who haveengaged in conduct prejudicial to the effective andexpeditious administration of the business of thecourt or who are unable to discharge all the dutiesof the office by reason of mental or physicaldisability.

(b) A copy of these rules, titled “Rules forJudicial-Conduct and Judicial-DisabilityProceedings,” is available upon request from theOffice of the Clerk of the United States Court ofFederal Claims, 717 Madison Place, NW,Washington, DC 20005, or may be obtained fromthe court’s website at www.uscfc.uscourts.gov.Pursuant to these rules, written complaints may befiled with the clerk.

(As revised and reissued May 1, 2002; as amended


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August 1, 2004.)


RCFC 40.3 has no FRCP counterpart.However, the notice provided by the rule is inaccordance with the recommendations of theJudicial Conference of the United States, urgingthat such notice be made part of the court’s rules.

The rule replaces former Appendix B(“Procedures for Processing Complaints of JudicialMisconduct”) and its supplementing order, GeneralOrder No. 34 dated June 3, 1993. Inclusion of therule as a subpart of RCFC 40 is intended to furthera more coherent organizational structure of thecourt’s rules.

2004 AmendmentPursuant to the Judicial Improvements Act of

2002, Pub. L. No. 107-203, 116 Stat. 1758, thestatutory directive requiring the court’s issuance ofrules for the filing of complaints of judicialmisconduct, originally set forth in the JudicialConduct and Disability Act of 1980, 28 U.S.C.§ 372(c)(1)–(18), was amended and recodified as28 U.S.C. §§ 351–364. This change is reflected inthe 2004 amendment to RCFC 40.3 in the openingsentence of subdivision (a) by the deletion of theformer statutory reference and the substitution ofthe new statutory reference.

Additionally, the rule has been amended toinclude notice of the availability on the court’swebsite of the Rules of the United States Court ofFederal Claims Governing Complaints of JudicialMisconduct and Disability.

2008 AmendmentRCFC 40.3(b) has been amended to reflect the

change in the title of the rules establishingstandards and procedures for addressing complaintsagainst judges, as revised and promulgated by theJudicial Conference of the United States pursuantto 28 U.S.C. §§ 351–364 on March 11, 2008.

Rule 41. Dismissal of Actions(a) Voluntary Dismissal: Effect Thereof.

(1) By Plaintiff; by Stipulation. Subjectto the provisions of RCFC 23 and of anystatute of the United States, an action may be

dismissed by the plaintiff without order ofcourt (i) by filing a notice of dismissal at anytime before service of an answer or of amotion for summary judgment, whicheverfirst occurs, or (ii) by filing a stipulation ofdismissal signed by all parties who haveappeared in the action. Unless otherwisestated in the notice of dismissal or stipulation,the dismissal is without prejudice, except thata notice of dismissal operates as anadjudication upon the merits when filed by aplaintiff who has once dismissed in any courtof the United States an action based on orincluding the same claim.

(2) By Order of Court. Except asprovided in paragraph (1) of this subdivisionof this rule, an action shall not be dismissed atthe plaintiff's instance save upon order of thecourt and upon such terms and conditions asthe court deems proper. If a counterclaim hasbeen pleaded by the United States prior to theservice upon it of the plaintiff's motion todismiss, the action shall not be dismissedagainst the defendant's objection unless thecounterclaim can remain pending forindependent adjudication by the court. Unlessotherwise specified in the order, a dismissalunder this paragraph is without prejudice.(b) Involuntary Dismissal: Effect Thereof.

For failure of the plaintiff to prosecute or tocomply with these rules or any order of court, thecourt may dismiss on its own motion or defendantmay move for dismissal of an action or any claim.Unless the court in its order for dismissal otherwisespecifies, a dismissal under this subdivision of thisrule and any dismissal not provided for in this rule,other than a dismissal for lack of jurisdiction or forfailure to join a party under RCFC 19, operates asan adjudication upon the merits.

(c) Dismissal of Counterclaim orThird-Party Claim. The provisions of this ruleapply to the dismissal of any counterclaim orthird-party claim. A voluntary dismissal by theclaimant alone pursuant to paragraph (1) ofsubdivision (a) of this rule shall be made before aresponsive pleading is served or, if there is none,before the introduction of evidence at the trial orhearing.

(d) Costs of Previously Dismissed Action. If

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a plaintiff who has once dismissed an action in anycourt commences an action based upon orincluding the same claim against the defendant, thecourt may make such order for the payment ofcosts of the action previously dismissed as it maydeem proper and may stay the proceedings in theaction until the plaintiff has complied with theorder.



Minor changes have been made to moreclosely conform to FRCP 41. Substantively,however, the rule remains unchanged.

Rule 42. Consolidation; Separate Trials(a) Consolidation. When actions involving a

common question of law or fact are pending beforethe court, it may order a joint hearing or trial of anyor all the matters in issue in the actions; it mayorder all the actions consolidated; and it may makesuch orders concerning proceedings therein as maytend to avoid unnecessary costs or delay.

(b) Separate Trials. The court, in furtheranceof convenience or to avoid prejudice, or whenseparate trials will be conducive to expedition andeconomy, may order a separate trial of any claim,counterclaim, or third-party claim, or of anyseparate issue or of any number of claims,counterclaims, third-party claims, or issues.

(c) Separate Determination of Liability.Upon stipulation of the parties, as approved by thecourt, or upon order of the court, a trial may belimited to the issues of law and fact relating to theright of a party to recover, reserving thedetermination of the amount of recovery, if any, forfurther proceedings. In any case, whether or not astipulation or order has been made undersubdivision (c) of this rule, the court, upondetermining that a party is entitled to recover, mayreserve determination of the amount of therecovery for further proceedings. Any motion forreconsideration shall be filed not later than 10 daysafter a separate determination of liability.



RCFC 42 remains unchanged. Thus, asbefore, the rule parallels in part FRCP 42 and, inaddition, includes subdivision (c) (“SeparateDetermination of Liability”) permitting the liabilityphase of a lawsuit to be separated from, anddecided independently of, the quantum phase.

Rule 42.1 Motions to ConsolidateMotions to consolidate shall be directed to the

judge to whom the relevant cases are assigned. Inthe event the relevant cases are assigned todifferent judges, a motion to transfer may be madepursuant to RCFC 40.1, with a suggestion of theappropriateness of consolidation.



RCFC 42.1 has no FRCP counterpart. Itidentifies the procedure applicable to motions forthe consolidation of actions pending beforedifferent judges.

Rule 43. Taking of Testimony(a) Form. In every trial, the testimony of

witnesses shall be taken in open court, unless afederal law, these rules, the Federal Rules ofEvidence, or other rules adopted by the SupremeCourt provide otherwise. The court may, for goodcause shown in compelling circumstances and uponappropriate safeguards, permit presentation oftestimony in open court by contemporaneoustransmission from a different location.

(b) Scope of Examination and Cross-Examination. [Abrogated in FRCP.]

(c) Record of Excluded Evidence.[Abrogated in FRCP.]

(d) Affirmation in Lieu of Oath. Wheneverunder these rules an oath is required to be taken, asolemn affirmation may be accepted in lieu thereof.

(e) Evidence on Motions. When a motion isbased on facts not appearing of record the courtmay hear the matter on affidavits presented by therespective parties, but the court may direct that thematter be heard wholly or partly on oral testimonyor deposition.

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(f) Interpreters. The court may appoint aninterpreter of its own selection and may fix theinterpreter's reasonable compensation. Thecompensation shall be paid out of funds providedby law or by one or more of the parties as the courtmay direct, and may be taxed ultimately as costs, inthe discretion of the court.




Rule 44. Proof of Official Record(a) Authentication.

(1) Domestic. An official record keptwithin the United States, or any state, district,or commonwealth, or within a territorysubject to the administrative or judicialjurisdiction of the United States, or an entrytherein, when admissible for any purpose, maybe evidenced by an official publication thereofor by a copy attested by the officer having thelegal custody of the record, or by the officer'sdeputy, and accompanied by a certificate thatsuch officer has the custody. The certificatemay be made by a judge of a court of recordof the district or political subdivision in whichthe record is kept, authenticated by the seal ofthe court, or may be made by any publicofficer having a seal of office and havingofficial duties in the district or politicalsubdivision in which the record is kept,authenticated by the seal of the officer'soffice.

(2) Foreign. A foreign official record, oran entry therein, when admissible for anypurpose, may be evidenced by an officialpublication thereof; or a copy thereof, attestedby a person authorized to make the attestation,and accompanied by a final certification as tothe genuineness of the signature and officialposition (i) of the attesting person, or (ii) ofany foreign official whose certificate ofgenuineness of signature and official positionrelates to the attestation or is in a chain ofcertificates of genuineness of signature andofficial position relating to the attestation. A

final certification may be made by a secretaryof embassy or legation, consul general, viceconsul, or consular agent of the United States,or a diplomatic or consular official of theforeign country assigned or accredited to theUnited States. If reasonable opportunity hasbeen given to all parties to investigate theauthenticity and accuracy of the documents,the court may, for good cause shown, (i) admitan attested copy without final certification or(ii) permit the foreign official record to beevidenced by an attested summary with orwithout a final certification. The finalcertification is unnecessary if the record andthe attestation are certified as provided in atreaty or convention to which the UnitedStates and the foreign country in which theofficial record is located are parties.(b) Lack of Record. A written statement that

after diligent search no record or entry of aspecified tenor is found to exist in the recordsdesignated by the statement, authenticated asprovided in subdivision (a)(1) of this rule in thecase of a domestic record, or complying with therequirements of subdivision (a)(2) of this rule fora summary in the case of a foreign record, isadmissible as evidence that the records contain nosuch record or entry.

(c) Other Proof. This rule does not preventthe proof of official records or of entry or lack ofentry therein by any other method authorized bylaw.




Rule 44.1 Determination of Foreign LawA party who intends to raise an issue

concerning the law of a foreign country shall givenotice by pleadings or other reasonable writtennotice. The court, in determining foreign law, mayconsider any relevant material or source, includingtestimony, whether or not submitted by a party oradmissible under the Federal Rules of Evidence.The court's determination shall be treated as aruling on a question of law.

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RCFC 44.1 is identical to FRCP 44.1.

Rule 45. Subpoena(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 testimonyor to produce and permit inspection,copying, testing, or sampling ofdesignated books , documents ,electronically stored information, ortangible things in the possession, custodyor control of that person, or to permitinspection of premises, at a time andplace therein specified; and

(D) set forth the text of subdivisions(c) and (d) of this rule.

A command to produce evidence or to permitinspection, copying, testing, or sampling maybe joined with a command to appear at trial orhearing or at deposition, or may be issuedseparately. A subpoena may specify the formor forms in which electronically storedinformation is to be produced.

(2) [Not used.](3) The clerk shall issue a subpoena,

signed but otherwise in blank, to a partyrequesting it, who shall complete it beforeservice. An attorney as officer of the court,authorized to sign filings under RCFC 83.1,may also issue and sign a subpoena on behalfof the court. (b) Service.

(1) A subpoena may be served by anyperson who is not a party and is not less than18 years of age. Service of a subpoena upon aperson named therein shall be made bydelivering a copy thereof to such person and,if the person's attendance is commanded, bytendering to that person the fees for one day'sattendance and the mileage allowed by law.

See 28 U.S.C. § 1821. When the subpoena isissued on behalf of the United States or anofficer or agency thereof, fees and mileageneed not be tendered. Prior notice of anycommanded production of documents andthings or inspection of premises before trialshall be served on each party in the mannerprescribed by RCFC 5(b).

(2) Subject to the provisions of clause(ii) of subparagraph (c)(3)(A) of this rule, asubpoena may be served at any place that iswithin 100 miles of the place of thedeposition, hearing, trial, production,inspection, copying, testing, or samplingspecified in the subpoena, but the court uponproper application and good cause shown mayauthorize the service of a subpoena at anyother place. A subpoena directed to a witnessin a foreign country who is a national orresident of the United States shall issue underthe circumstances and in the manner and beserved as provided in Title 28 U.S.C. § 1783.

(3) Proof of service when necessary shallbe made by filing with the clerk of the court astatement of the date and manner of serviceand of the names of the persons served,certified by the person who made the service.

(c) Protection of Persons Subject toSubpoenas.

(1) A party or an attorney responsible forthe issuance and service of a subpoena shalltake reasonable steps to avoid imposing undueburden or expense on a person subject to thatsubpoena. The court shall enforce this dutyand impose upon the party or attorney inbreach of this duty an appropriate sanction,which may include, but is not limited to, lostearnings and a reasonable attorney's fee.

(2)(A) A person commanded to produceand permit inspection, copying, testing,or sampling of designated electronicallystored information, books, papers,documents or tangible things, orinspection of premises need not appear inperson at the place of production orinspection unless commanded to appearfor deposition, hearing or trial.

(B) Subject to paragraph (d)(2) ofthis rule, a person commanded to

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produce and permit inspection, copying,testing, or sampling may, within 14 daysafter service of the subpoena or beforethe time specified for compliance if suchtime is less than 14 days after service,serve upon the party or attorneydesignated in the subpoena writtenobjection to producing any or all of thedesignated materials or inspection of thepremises—or to producing electronicallystored information in the form or formsrequested. If objection is made, the partyserving the subpoena shall not be entitledto inspect, copy, test, or sample thematerials or inspect the premises exceptpursuant to an order of the court. Ifobjection has been made, the partyserving the subpoena may, upon notice tothe person commanded to produce, moveat any time for an order to compel theproduction, inspection, copying, testing,or sampling. Such an order to compelshall protect any person who is not aparty or an officer of a party fromsignificant expense resulting from theinspection, copying, testing, or samplingcommanded. (3)(A) On timely motion, the court shallquash or modify the subpoena if it

(i) fails to allow reasonabletime for compliance;

(ii) requires a person who isnot a party or an officer of a party totravel to a place more than 100miles from the place where thatperson resides, is employed orregularly transacts business inperson, except that, subject to theprovisions of clause (c)(3)(B)(iii) ofthis rule, such a person may in orderto attend trial be commanded totravel from any such place;

(iii) requires disclosure ofprivileged or other protected matterand no exception or waiver applies;or

(iv) subjects a person to undueburden. (B) If a subpoena

(i) requires disclosure of atrade secret or other confidentialresearch, development , orcommercial information, or

(ii) requires disclosure of anunretained expert's opinion orinformation not describing specificevents or occurrences in disputeand resulting from the expert's studymade not at the request of any party,or

(iii) requires a person who isnot a party or an officer of a party toincur substantial expense to travelmore than 100 miles to attend trial,the court may, to protect a personsubject to or affected by thesubpoena, quash or modify thesubpoena or, if the party in whosebehalf the subpoena is issued showsa substantial need for the testimonyor material that cannot be otherwisemet without undue hardship andassures that the person to whom thesubpoena is addressed will bereasonably compensated, the courtmay order appearance or productiononly upon specified conditions.

(d) Duties in Responding to Subpoena. (1)(A) A person responding to asubpoena to produce documents shallproduce them as they are kept in theusual course of business or shall organizeand label them to correspond with thecategories in the demand.

(B) If a subpoena does not specifythe form or forms for producingelectronically stored information, aperson responding to a subpoena mustproduce the information in a form orforms in which the person ordinarilymaintains it or in a form or forms that arereasonably usable.

(C) A person responding to asubpoena need not produce the sameelectronically stored information in morethan one form.

(D) A person responding to asubpoena need not provide discovery of

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electronically stored information fromsources that the person identifies as notreasonably accessible because of undueburden or cost. On motion to compeldiscovery or to quash, the person fromwhom discovery is sought must showthat the information sought is notreasonably accessible because of undueburden or cost. If that showing is made,the court may nonetheless orderdiscovery from such sources if therequesting party shows good cause,considering the limitations of Rule26(b)(2)(C). The court may specifyconditions for the discovery.

(2)(A) When information subject toa subpoena is withheld on a claim that itis privileged or subject to protection astrial preparation materials, the claimshall be made expressly and shall besupported by a description of the natureof the documents, communications, orthings not produced that is sufficient toenable the demanding party to contestthe claim.

(B) If information is produced inresponse to a subpoena that is subject toa claim of privilege or of protection astrial-preparation material, the personmaking the claim may notify any partythat received the information of the claimand the basis for it. After being notified,a party must promptly return, sequester,or destroy the specified information andany copies it has and may not use ordisclose the information until the claim isresolved. A receiving party maypromptly present the information to thecourt under seal for a determination ofthe claim. If the receiving partydisclosed the information before beingnotified, it must take reasonable steps toretrieve it. The person who produced theinformation must preserve theinformation until the claim is resolved.

(e) Contempt. Failure of any person withoutadequate excuse to obey a subpoena served uponthat person may be deemed a contempt of the courtfrom which the subpoena issued. An adequate

cause for failure to obey exists when a subpoenapurports to require a nonparty to attend or produceat a place not within the limits provided by clause(ii) of subparagraph (c)(3)(A).



RCFC 45 conforms to FRCP 45 to the extentfeasible given the court’s nationwide jurisdiction.



Rule 46. Exceptions UnnecessaryFormal exceptions to rulings or orders of the

court are unnecessary; but for all purposes forwhich an exception has heretofore been necessaryit is sufficient that a party, at the time the ruling ororder of the court is made or sought, makes knownto the court the action which the party desires thecourt to take or the party's objection to the action ofthe court and the grounds therefor; and, if a partyhas no opportunity to object to a ruling or order atthe time it is made, the absence of an objectiondoes not thereafter prejudice the party.




Rule 47. Selection of Jurors [Not used.]

Rule 48. Number of Jurors—Participation inVerdict [Not used.]

Rule 49. Special Verdicts and Interrogatories [Not used.]

Rule 50. Judgment as a Matter of Law in JuryTrials; Alternative Motion for New Trial;Conditional Rulings [Not used.]

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Rule 51. Instructions to Jury; Objections;Preserving a Claim of Error [Not used.]

Rule 52. Findings by the Court; Judgment onPartial Findings

(a) Effect. In all actions tried upon the facts,the court shall find the facts specially and stateseparately its conclusions of law thereon, andjudgment shall be entered pursuant to RCFC 58;and in granting or refusing interlocutoryinjunctions the court shall similarly set forth thefindings of fact and conclusions of law whichconstitute the grounds of its action. Requests forfindings are not necessary for purposes of review.Findings of fact, whether based on oral ordocumentary evidence, shall not be set aside unlessclearly erroneous, and due regard shall be given tothe opportunity of the trial court to judge of thecredibility of the witnesses. It will be sufficient ifthe findings of fact and conclusions of law arestated orally and recorded in open court followingthe close of the evidence or appear in an opinion ormemorandum of decision filed by the court.Findings of fact and conclusions of law areunnecessary on decisions of motions under RCFC12 or 56 or any other motion except as provided insubdivision (c) of this rule.

(b) Amendment. On a party’s motion filedno later than 10 days after entry of judgment, thecourt may amend its findings—or make additionalfindings—and may amend the judgmentaccordingly. The motion may accompany a motionfor a new trial under RCFC 59. The sufficiency ofthe evidence supporting the findings may be laterquestioned whether or not in this court the partyraising the question objected to the findings,moved to amend them, or moved for partialfindings.

(c) Judgment on Partial Findings. If duringa trial a party has been fully heard on an issue andthe court finds against the party on that issue, thecourt may enter judgment as a matter of law againstthat party with respect to a claim or defense thatcannot under the controlling law be maintained ordefeated without a favorable finding on that issue,or the court may decline to render any judgmentuntil the close of all the evidence. Such a judgmentshall be supported by findings of fact andconclusions of law as required by subdivision (a)

of this rule.



The principal change in RCFC 52 relates tothe enlargement of subdivision (c) to include,among issues subject to judgment on partialfindings, the adjudication of issues critical to thelegal sufficiency of a “defense.” The amendmentmakes clear that judgments as a matter of law maybe entered against both plaintiffs and defendantsand with respect to issues or defenses that may notbe wholly dispositive of a claim or defense.

Rule 52.1 Administrative Records(a) Filing the Administrative Record. In all

cases in which action by, and a record ofproceedings before, an agency is relevant to adecision, the administrative record of suchproceedings shall be certified by the agency oragencies and filed with the court. The court mayby order, including a scheduling order enteredpursuant to RCFC 16(b) and Appendix A or C,establish a time for filing the administrative record.

(b) Motions Respecting the AdministrativeRecord. The parties may move for partial or otherjudgment on the administrative record filed withthe court. Absent an order by the court setting adifferent procedure, in any such motion orsupporting memorandum, the moving or cross-moving party shall include a Statement of Factsthat draws upon and cites to the portions of theadministrative record that bear on the issuespresented to the court. The opposing party shallinclude in any response a Counter-Statement ofFacts that similarly draws upon and cites to theadministrative record.

(Added June 20, 2006.)


RCFC 52.1 has no FRCP counterpart. Therule replaces an earlier rule, RCFC 56.1, thatapplied certain standards borrowed from theprocedure for summary judgment to review of anagency decision on the basis of an administrative

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record. That incorporation proved to be confusingin practice because only a portion of the summaryjudgment standards were borrowed. Summaryjudgment standards are not pertinent to judicialreview upon an administrative record. SeeBannum, Inc. v. United States, 404 F.3d 1346,1355–57 (Fed. Cir. 2005). Specifically, the now-repealed Rule 56.1 did not adopt the overallstandard that summary judgment might beappropriate where there were no genuine issues ofmaterial fact. See RCFC 56(c). Nonetheless,despite this omission, parties, in moving forjudgment on the administrative record under theprior rule, frequently would contest whether theadministrative record showed the existence of agenuine dispute of material fact. To avoid thisconfusion, the new rule omits any reference tosummary judgment or to the standards applicableto summary judgment.

Cases filed in this court frequently turn only inpart on action taken by an administrative agency.In such cases, the administrative record mayprovide a factual and procedural predicate for aportion of the court’s decision, while otherelements might be derived from a trial, anevidentiary hearing, or summary judgment or otherjudicial proceedings. This rule applies whether thecourt’s decision is derived in whole or in part fromthe agency action reflected in the administrativerecord.

The standards and criteria governing thecourt’s review of agency decisions vary dependingupon the specific law to be applied in particularcases. The rule does not address those standards orcriteria. Correspondingly, any motion forcorrection or supplementation of the administrativerecord should be made on the basis of either thespecific law to be applied in the particular case orgenerally applicable principles of administrativelaw.

Rule 52.2 Remand; Extension or Terminationof Stay of Proceedings on Remand; Dispositionof Case

(a) Remand. (1) Issuance of Remand Order. At the

request of a party or on its own motion, thecourt may in any case within its jurisdictionby order remand appropriate matters to any

administrative or executive body or officialwith such direction as may be deemed properand just.

(2) Content of Remand Order. Anorder of remand shall (A) delineate the area offurther consideration or action deemedwarranted on the remand, (B) fix the durationof the remand period, not to exceed 6 months,and (C) specify the extent to which courtproceedings shall be stayed during the remandperiod.

(3) Service of Order. A certified copy ofany order issued pursuant to this rule shall beserved by the clerk on the administrative orexecutive body or official to whom the orderis directed. A copy of the order shall be servedon each party in conformity with RCFC 5.

(4) Transmittal of AdministrativeRecord. Following service of the order asprovided for in this rule, the clerk shalltransmit the administrative record, if any, tothe Department of Justice for return to theadministrative or executive body or official towhom the order of remand is directed.

(5) Advice of Administrative Action. Inevery case in which an order of remand isentered pursuant to this rule, the attorney ofrecord for the party so designated in the orderof remand shall report to the court the statusof proceedings on remand at intervals of 90days or less, beginning with the date of theorder.(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 theperiod of stay provided for in an order ofremand pursuant to subdivision (a), rendereda decision on the matter remanded, the partyto whom opportunity was afforded to obtainfurther administrative consideration shall, bymotion pursuant to RCFC 6, request anextension of the stay of proceedings, or, bymotion pursuant to RCFC 7, request theinitiation of proceedings toward otherwisedisposing of the case.

(2) Disposition at AdministrativeLevel. If, during the period of the stay ofproceedings as provided for in a remand

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order, the parties dispose of the case at theadministrative level, the plaintiff shall file amotion to dismiss the case with prejudice.

(3) Decision on Remand. Uponcompletion of proceedings pursuant to anorder of remand under subdivision (a), theadministrative or executive body or official towhom the order was directed shall forward tothe clerk for filing 4 copies of the decision orfinal action on remand. A copy of suchdecision or action shall be served on eachparty by the clerk.

(4) Action by the Parties. Within 30days after the filing of a decision or finalaction pursuant to subdivision (3), each partyshall file with the clerk a notice indicatingwhether or not the decision or final action onremand affords a satisfactory basis fordisposition of the claim at the administrativelevel, or whether further proceedings beforethe court are deemed required, and, if suchproceedings are desired, what thoseproceedings should be. A copy of such noticeshall be served on each adverse party inconformity with RCFC 5. Thereafter, thecourt will enter an order prescribing theprocedure to be followed, either specially orpursuant to the rules of the court, or take suchother action as may be deemed appropriate.

(As revised and reissued May 1, 2002; asrenumbered June 20, 2006.)

Rules Committee Note2002 Revision and 2006 AmendmentRCFC 52.2 has no FRCP counterpart. The

rule formerly appeared in these rules as RCFC 60.1and, following the court’s May 1, 2002, revision ofits rules, as RCFC 56.2. The first renumbering ofthe rule (from RCFC 60.1 to RCFC 56.2) wasintended to reflect a more logical placement in theorganizational structure of the court’s rules; thesecond renumbering (from RCFC 56.2 to RCFC52.2) was attributable to a further change in theorganizational structure of the court’s rules asreflected in the abrogation of related RCFC 56.1and its replacement by new RCFC 52.1.

Rule 53. Masters

(a) Appointment.(1) Unless a statute provides otherwise,

the chief judge, at the request of the assignedjudge, may appoint a master only to:

(A) perform duties consented to bythe parties;

(B) hold trial proceedings and makeor recommend findings of fact on issuesto be decided by the assigned judge ifappointment is warranted by

(i) some exceptional condition,or

(ii) the need to perform anaccounting or resolve a difficultcomputation of damages; or(C) address pretrial and post-trial

matters that cannot be addressedeffectively and timely by the assignedjudge.(2) A master must not have a relationship

to the parties, counsel, action, or assignedjudge that would require disqualification of ajudge under 28 U.S.C. § 455 unless the partiesconsent with the court’s approval toappointment of a particular person afterdisclosure of any potential grounds fordisqualification.

(3) In requesting the appointment of amaster, the assigned judge must consider thefairness of imposing the likely expenses onthe parties and must protect againstunreasonable expense or delay.(b) Order Appointing Master.

(1) Notice. The assigned judge mustgive the parties notice and an opportunity tobe heard before a master is appointed. Aparty may suggest to the assigned judgecandidates for appointment.

(2) Contents. The order appointing amaster must direct the master to proceed withall reasonable diligence and must state:

(A) the master’s duties, includingany investigation or enforcement duties,and any limits on the master’s authorityunder Rule 53(c);

(B) the circumstances—if any—inwhich the master may communicate exparte with the assigned judge or a party;

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(C) the nature of the materials to bepreserved and filed as the record of themaster’s activities;

(D) the time limits, method of filingthe record, other procedures, andstandards for reviewing the master’sorders, findings, and recommendations;and

(E) the basis, terms, and procedurefor fixing the master’s compensationunder Rule 53(h).(3) Entry of Order. The assigned judge

may request an order appointing a master onlyafter the master has filed an affidavitdisclosing whether there is any ground fordisqualification under 28 U.S.C. § 455 and, ifa ground for disqualification is disclosed, afterthe parties have consented with the assignedjudge’s approval to waive the disqualification.

(4) Amendment. The order appointing amaster may be amended by the chief judge atany time upon the recommendation of theassigned judge. The assigned judge maymake such a recommendation at any time afterthe assigned judge has given notice to theparties, and an opportunity to be heard.(c) Master’s Authority. Unless the

appointing order expressly directs otherwise, amaster has authority to regulate all proceedings andtake all appropriate measures to perform fairly andefficiently the assigned duties. The master may byorder impose upon a party any noncontemptsanction provided by RCFC 37 or 45, and mayrecommend a contempt sanction against a party andsanctions against a nonparty.

(d) Evidentiary Hearings. Unless theappointing order expressly directs otherwise, amaster conducting an evidentiary hearing mayexercise the power of the assigned judge to compel,take, and record evidence.

(e) Master’s Orders. A master who makes anorder must file the order and promptly serve a copyon each party. The clerk must enter the order onthe docket.

(f) Master’s Reports. A master must report tothe assigned judge as required by the order ofappointment. The master must file the report andpromptly serve a copy of the report on each partyunless the assigned judge directs otherwise.

(g) Action on Master’s Order, Report, orRecommendations.

(1) Action. In acting on a master’s order,report, or recommendations, the assignedjudge must afford an opportunity to be heardand may receive evidence, and may: adopt oraffirm; modify; wholly or partly reject orreverse; or resubmit to the master withinstructions.

(2) Time To Object or Move. A partymay file objections to—or a motion to adoptor modify—the master’s order, report, orrecommendations no later than 20 days fromthe time the master’s order, report, orrecommendations are served, unless theassigned judge sets a different time.

(3) Fact Findings. The assigned judgemust decide de novo all objections to findingsof fact made or recommended by a masterunless the parties stipulate with the assignedjudge’s consent that:

(A) the master’s findings will bereviewed for clear error, or

(B) the findings of a masterappointed under RCFC 53(a)(1)(A) or(C) will be final.(4) Legal Conclusions. The assigned

judge must decide de novo all objections toconclusions of law made or recommended bya master.

(5) Procedural Matters. Unless theorder of appointment establishes a differentstandard of review, the assigned judge may setaside a master’s ruling on a procedural matteronly for an abuse of discretion.(h) Compensation.

(1) Fixing Compensation. The assignedjudge must fix the master’s compensationbefore or after judgment on the basis andterms stated in the order of appointment. Thechief judge, upon the recommendation of theassigned judge, may set a new basis andterms. The assigned judge may make such arecommendation after the assigned judge hasgiven notice to the parties and an opportunityto be heard.

(2) Payment. The compensation fixedunder RCFC 53(h)(1) must be paid either:

(A) by a party or parties; or

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(B) from a fund or other subjectmatter of the action within the assignedjudge’s control.(3) Allocation. The assigned judge must

allocate payment of the master’scompensation among the parties afterconsidering the nature and amount of thecontroversy, the means of the parties, and theextent to which any party is more responsiblethan other parties for the reference to amaster. An interim allocation may beamended to reflect a decision on the merits.(i) Appointment of Magistrate Judge. [Not

used.]



The text of RCFC 53 as revised on May 1,2002, and its accompanying Rules CommitteeNote, may be found at 51 Fed. Cl. LXXXV (2002)or in Westlaw, database USCA03, search CI(RCFC& 53).

2004 AmendmentRCFC 53 adopts the significantly revised text

of FRCP 53, effective December 1, 2003, withminor adjustments in language reflectingdifferences in jurisdiction between this court andthe district courts. The principal adjustments inlanguage occur in the introductory text ofsubdivision (a) which adds the words “the chiefjudge, at the request of the assigned judge” as anadditional qualification to the appointment of amaster and in the related text of subdivisions (b)(4)and (h)(1). The distinction between the roles ofchief judge and assigned judge is carried throughinto the subdivisions of the rule where the words“assigned judge” are substituted for the word“court.” The added language addresses the factthat pursuant to 28 U.S.C. § 798(c), the court’sauthority to appoint special masters to assist thecourt in carrying out its functions rests exclusivelywith the chief judge.

VII. JUDGMENT

Rule 54. Judgments; Costs(a) Definition; Form. “Judgment” as used in

these rules includes a decree and any order fromwhich an appeal lies. A judgment shall not containa recital of pleadings, the report of a master, or therecord of prior proceedings.

(b) Judgment Upon Multiple Claims orInvolving Multiple Parties. When more than oneclaim for relief is presented in an action, whetheras a claim, counterclaim, or third-party claim, orwhen multiple parties are involved, the court maydirect the entry of a final judgment as to one ormore but fewer than all of the claims or partiesonly upon an express determination that there is nojust reason for delay and upon an express directionfor the entry of judgment. In the absence of suchdetermination and direction, any order or otherform of decision, however designated, whichadjudicates fewer than all the claims or the rightsand liabilities of fewer than all the parties shall notterminate the action as to any of the claims orparties, and the order or other form of decision issubject to revision at any time before the entry ofjudgment adjudicating all the claims and the rightsand liabilities of all the parties.

(c) Demand for Judgment. A judgment bydefault shall not be different in kind from or exceedin amount that prayed for in the demand forjudgment. Except as to a party against whom ajudgment is entered by default, every finaljudgment shall grant the relief to which the party inwhose favor it is rendered is entitled, even if theparty has not demanded such relief in the party'spleadings.

(d) Costs; Attorneys’ Fees. (1) Costs Other than Attorneys’ Fees.

Costs other than attorneys’ fees may beawarded to the prevailing party to the extentpermitted by law. See 28 U.S.C. § 2412(a).

(A) Filing Bill of Costs. Aprevailing party may request the clerk totax allowable costs by filing a Bill ofCosts as set forth in the Appendix ofForms (Form 4) within 30 days after thedate of final judgment, as defined in 28U.S.C. § 2412(d)(2)(G). In any casewhere any costs other than the fee forfiling the action are being requested, the

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bill of costs shall be supported byaffidavit and accompanied by amemorandum setting forth the groundsand authorities supporting the request.Any vouchers, receipts or invoicessupporting the cost being requested shallbe attached as exhibits.

(B) Objections to Bill of Costs. (i) An adverse party may object

to the Bill of Costs or to any itemclaimed therein by filing objectionswithin 28 days after the service ofthe Bill of Costs. Within 7 daysafter service of the objections, theprevailing party may file a reply.Unless a conference is scheduled bythe clerk, the taxation of costs orany disallowance will be made bythe clerk on the record.

(ii) A party may request thecourt to review the clerk's action byfiling a motion within 14 days afteraction by the clerk. The court'sreview of the clerk's action will bemade on the existing record unlessotherwise ordered.(C) Costs in Settlements. The

clerk will not tax costs on any actionterminated by settlement wherein thejudgment is entered pursuant to RCFC 68or is dismissed pursuant to RCFC 41(a).Settlement agreements must resolve anyissue relating to costs. In the absence ofspecial agreement, parties will bear theirown costs.

(D) No Extensions. No extensionsof time under this rule will be permittedand the failure of a prevailing party totimely file a Bill of Costs shall constitutea waiver of any claim for costs.(2) Attorneys’ Fees.

(A) Claims for attorneys’ fees andrelated nontaxable expenses shall bemade by motion unless the substantivelaw governing the action provides for therecovery of such fees as an element ofdamages to be proved at trial. SeeAppendix of Forms, Form 5.

(B) Unless otherwise provided by

statute or order of the court, the motionmust be filed no later than 30 days afterthe date of final judgment, as defined in28 U.S.C. § 2412(d)(2)(G); must specifythe judgment and the statute, rule, orother grounds entitling the moving partyto the award; and must state the amountsought. If directed by the court, themotion shall also disclose the terms ofany agreement with respect to fees to bepaid for the services for which claim ismade.

(C) The court may determine issuesof liability for fees before receivingsubmissions bearing on issues ofevaluation of services for which liabilityis imposed by the court. The court shallfind the facts and state its conclusions oflaw as provided in RCFC 52(a).

(D) The responding party shall have28 days after service of the motionpursuant to subdivision (d)(2)(A) to filea response, to which plaintiff may replywithin 14 days after service of theresponse. After the filing of a motion,and response and reply, if any, the judgewill enter an order prescribing theprocedure to be followed, either speciallyor pursuant to the rules of the court, ortake such other action as may be deemedappropriate.

(E) The provisions of subdivisions(d)(2)(A)–(D) do not apply to claims forfees and expenses as sanctions forviolations of these rules or under 28U.S.C. §1927.



RCFC 54(d) was revised in several respects.The subdivision was modified to conform itsstructure to FRCP 54(d). In addition, thesubdivision, as rewritten departs from its FRCPcounterpart in several respects:

First, because the allowance of attorneys’ feesand costs in this court is almost always determined

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under the provisions of 28 U.S.C. § 2412(a), (d)(the Equal Access to Justice Act), it was deemedadvisable to reflect this fact in subdivision (d)(2)rather than to retain the broader, but potentiallymisleading, language that appears in FRCP54(d)(1). See Neal & Co. v. United States, 121F.3d 683 (Fed. Cir. 1997).

Second, subdivision (d)(1) was enlargedbeyond the scope of its FRCP counterpart by theincorporation of RCFC 77.4 (“Taxation of Costs”).

Third, subdivision (d)(2) brings togetherrelevant sections of its FRCP counterpart andformer RCFC 81(e) (“Application for Attorneys’Fees”).

Finally, the time periods for objecting to a Billof Costs and for requesting review of the clerk’saction were enlarged.

2004 AmendmentThe final sentence of RCFC 54(d)(2)(D) was

deleted in conformance with RCFC 53(a)(1).

Rule 55. Default(a) Entry. When a party against whom a

judgment for affirmative relief is sought has failedto plead or otherwise defend as provided by theserules and that fact is made to appear by affidavit orotherwise, the clerk shall enter the party's default.

(b) Judgment. No judgment by default shallbe entered unless the claimant establishes a claimor right to relief by evidence satisfactory to thecourt. The party entitled to a judgment by defaultshall apply to the court therefor; but no judgmentby default shall be entered against an infant orincompetent person unless represented in the actionby a general guardian, committee, conservator, orother such representative who has appeared therein.If the party against whom judgment by default issought has appeared in the action, the party (or, ifappearing by representative, the party'srepresentative) shall be served with written noticeof the application for judgment at least 3 days priorto the hearing on such application. If, in order toenable the court to enter judgment or to carry itinto effect, it is necessary to take an account or todetermine the amount of damages or to establishthe truth of any averment by evidence or to makean investigation of any other matter, the court mayconduct 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 defaultand, if a judgment by default has been entered, maylikewise set it aside in accordance with RCFC60(b).

(d) Plaintiffs; Counterclaimants. Theprovisions of this rule apply whether the partyentitled to the judgment by default is a plaintiff, athird-party plaintiff, or a party who has pleaded acounterclaim. In all cases a judgment by default issubject to the limitations of RCFC 54(c).



RCFC 55 recognizes the distinction betweenentry of default and entry of judgment for default.Substantial changes were made. The language informer subdivision (b)(1), permitting entry ofdefault judgment by the clerk, is omitted.Additionally, the protection previously affordedonly to the United States–prohibiting entry ofdefault judgments absent a showing by theclaimant of a right to relief by evidence satisfactoryto the court–is expanded to include all parties.Judgment requires proof and involvement of thecourt.

Rule 56. Summary Judgment(a) For Claimant. A party seeking to recover

upon a claim or counterclaim or to obtain adeclaratory judgment may, at any time after theexpiration of 60 days from the commencement ofthe action in this court or after service of a motionfor summary judgment by the adverse party, movewith or without supporting affidavits for asummary judgment in such party's favor upon all orany part thereof.

(b) For Defending Party. A party againstwhom a claim or counterclaim is asserted or adeclaratory judgment is sought may, at any time,move with or without supporting affidavits for asummary judgment in the party's favor as to all orany part thereof.

(c) Motion and Proceedings Thereon. Thejudgment sought shall be rendered forthwith if thepleadings, depositions, answers to interrogatories,

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and admissions on file, together with the affidavits,if any, show that there is no genuine issue as to anymaterial fact and that the moving party is entitledto a judgment as a matter of law. A summaryjudgment, interlocutory in character, may berendered on the issue of liability alone althoughthere is a genuine issue as to the amount ofdamages.

(d) Case Not Fully Adjudicated on Motion.If on motion under this rule judgment is notrendered upon the whole case or for all the reliefasked and a trial is necessary, the court at thehearing of the motion, by examining the pleadingsand the evidence before it and by interrogatingcounsel, shall if practicable ascertain what materialfacts exist without substantial controversy andwhat material facts are actually and in good faithcontroverted. It shall thereupon make an orderspecifying the facts that appear without substantialcontroversy, including the extent to which theamount of damages or other relief is not incontroversy, and directing such further proceedingsin the action as are just. Upon the trial of the actionthe facts so specified shall be deemed established,and the trial shall be conducted accordingly.

(e) Form of Affidavits; Further Testimony;Defense Required. Supporting and opposingaffidavits shall be made on personal knowledge,shall set forth such facts as would be admissible inevidence, and shall show affirmatively that theaffiant is competent to testify to the matters statedtherein. Sworn or certified copies of all papers orparts thereof referred to in an affidavit shall beattached thereto or served therewith. The court maypermit affidavits to be supplemented or opposed bydepositions, answers to interrogatories, or furtheraffidavits. When a motion for summary judgmentis made and supported as provided in this rule, anadverse party may not rest upon the mereallegations or denials of the adverse party'spleading, but the adverse party's response, byaffidavits or as otherwise provided in this rule,must set forth specific facts showing that there is agenuine issue for trial. If the adverse party does notso 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 partyopposing the motion that the party cannot for

reasons stated present by affidavit facts essential tojustify the party's opposition, the court may refusethe application for judgment or may order acontinuance to permit affidavits to be obtained ordepositions to be taken or discovery to be had ormay make such other order as is just.

(g) Affidavits Made in Bad Faith. Shouldit appear to the satisfaction of the court at any timethat any of the affidavits presented pursuant to thisrule are presented in bad faith or solely for thepurpose of delay, the court shall forthwith order theparty employing them to pay to the other party theamount of the reasonable expenses which the filingof the affidavits caused the other party to incur,including reasonable attorney's fees, and anyoffending party or attorney may be adjudged guiltyof contempt.

(h) Procedures. The following proceduresshall be followed with respect to motions forsummary judgment:

(1) The moving or cross-moving partyshall file, together with its motion, a separatedocument titled Proposed Findings ofUncontroverted Fact. This document shallcontain concise, separately numberedparagraphs setting forth all of the materialfacts upon which the party bases its motionand as to which the party believes there is nogenuine dispute. Each paragraph shall containcitations to the opposing party's pleadings orto documentary evidence, such as affidavits orexhibits, filed with the motion or otherwisepart of the record in the case.

(2) The opposing party shall file, togetherwith its opposition, a response to therequested findings by indicating, immediatelybelow each finding, whether it agrees ordisagrees with the finding as stated. If theopposing party does not agree with theproposed finding, it shall note the basis for itsobjection and may draft a proposed revisionof the finding directly below the challengedfinding. The opposing party may also fileproposed findings of uncontroverted fact as toany relevant matters not covered by themoving party's statement. Such additionalstatements of proposed findings shall be setforth with the proposed findings applicable toany cross-motion, but in the absence of a

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cross-motion shall be set forth in a separatedocument. Responses to such additionalproposed findings shall be filed in a formatwhich conforms to the instructions notedabove.

(3) The parties may dispense with thedocuments called for in subdivision (h)(1) and(2) if they file, no later than the time of theinitial motion, a comprehensive stipulation ofall of the material facts upon which theyintend to rely. In determining any motion forsummary judgment, the court will, absentpersuasive reason to the contrary, deem thematerial facts claimed and adequatelysupported by the moving party to beestablished, except to the extent that suchmaterial facts are controverted by affidavit orother written or oral evidence.



The subdivision structure of RCFC 56 was re-ordered to more closely conform to FRCP 56. Inaddition, the subdivision outlining the proceduresfor filing a RCFC 56 motion was changed toeliminate the Statement of Genuine Issues and torequire the parties to express their views on anyparticular fact by noting them on a single page,which may include a redraft of the challengedfinding.

2006 AmendmentA clause was deleted from the opening portion

of subdivision (h) to accord with the abrogation ofRCFC 56.1.

Rule 56.1 Review of Decision on the Basis ofAdministrative Record [Abrogated, effectiveJune 20, 2006.]


RCFC 56.1 has no FRCP counterpart. In theinterests of procedural clarity, the text ofsubdivision (a) was modified to reflect currentpractice with respect to supplementation of the

administrative record, and subdivision (b)(2) wasmodified to make explicit an opposing party’s rightto file an opposition as well as a cross-motion. Inaddition, the rule was conformed to RCFC 56practice, in that the statement of facts and counter-statement of facts are incorporated into a singledocument. In all other respects, RCFC 56.1remains unchanged.

2006 AbrogationRCFC 56.1 has been abrogated for the reasons

described in the Rules Committee Note toRCFC 52.1.

Rule 56.2 Remand; Extension or Termination ofStay of Proceedings on Remand; Disposition ofCase [Renumbered as RCFC 52.2, effectiveJune 20, 2006.]

Rule 57. Declaratory JudgmentsThe procedure for obtaining a declaratory

judgment pursuant to 28 U.S.C. §§1491(b)(2) and1507 shall be in accordance with these rules. Theexistence of another adequate remedy does notpreclude a judgment for declaratory relief in caseswhere it is appropriate. The court may order aspeedy hearing of an action for a declaratoryjudgment and may advance it on the calendar.



The former reference to 28 U.S.C. §1491(a)has been changed to reflect that the court’sauthority to render declaratory judgments in thecontext of procurement protests is now found in28 U.S.C. §1491(b)(2).

Rule 58. Entry of Judgment(a) Separate Document.

(1) Every judgment and amendedjudgment must be set forth on a separatedocument, but a separate document is notrequired for an order disposing of a motion:

(A) [Not used.] (B) to amend or make additional

findings of fact under RCFC 52(b);

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(C) for attorney fees under RCFC54;

(D) for a new trial, or to alter oramend the judgment, under RCFC 59; or

(E) for relief under RCFC 60.(2) Subject to RCFC 54(b):

(A) unless the court ordersotherwise, the clerk must, withoutawaiting the court=s direction, promptlyprepare, sign, and enter the judgmentwhen:

(i) [Not used.](ii) the court awards only costs

or a sum certain, or(iii) the court denies all relief;

(B) the court must promptly approvethe form of the judgment, which the clerkmust promptly enter, when:

(i) [Not used.] (ii) the court grants other relief

not described in RCFC 58(a)(2).(b) Time of Entry. Judgment is entered for

purposes of these rules:(1) if RCFC 58(a)(1) does not require a

separate document, when it is entered in thecivil docket under RCFC 79(a), and

(2) if RCFC 58(a)(1) requires a separatedocument, when it is entered in the civildocket under RCFC 79(a) and when theearlier of these events occurs:

(A) when it is set forth on a separatedocument, or

(B) when 150 days have run fromentry on the civil docket under RCFC79(a).

(c) Cost or Fee Awards. (1) Entry of judgment may not be

delayed, nor the time for appeal extended, inorder to tax costs or award fees except asprovided in RCFC 58(c)(2).

(2) When a timely motion for attorneyfees is made under RCFC 54(d)(2) the courtmay act before a notice of appeal has beenfiled and has become effective to order thatthe motion have the same effect underFederal Rule of Appellate Procedure 4(a)(4)as a timely motion under RCFC 59.(d) Request for Entry. A party may request

that judgment be set forth on a separate documentas required by RCFC 58(a)(1).

(As revised and reissued May 1, 2002; as amendedSeptember 15, 2003; as amended November 15,2007.)


RCFC 58 is essentially identical to the textthat was proposed in August 2000 by theCommittee on Rules of Practice and Procedure ofthe Judicial Conference of the United States, withthe exception of any references to trial by jury.

2003 AmendmentThe text of RCFC 58 has been amended in

minor respects to conform to FRCP 58 as adoptedDecember 1, 2002.

2007 AmendmentThe time for the entry of judgment under

RCFC 58(b)(2)(B) has been extended from 60 daysto 150 days to correspond to the time period setforth in FRCP 58(b)(2)(B).

Rule 58.1 Notice of AppealReview of a decision of this court shall be

obtained by filing with the clerk an original and therequisite number of copies of a notice of appeal(but not fewer than four) within the time andmanner prescribed for appeals to United Statescourts of appeal as provided for in Rule 3 of theFederal Rules of Appellate Procedure, togetherwith the fee provided for in RCFC 77.1(c)(2).



Although the rule has no FRCP counterpart, itis a necessary component of the court’s rulesbecause it prescribes the time and manner for thefiling of an appeal from a decision of this court.

Rule 59. New Trials; Rehearings; Amendmentof Judgments; Reconsideration

(a) Grounds. (1) A new trial or rehearing or

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reconsideration may be granted to all or anyof the parties and on all or part of the issues,for any of the reasons established by the rulesof common law or equity applicable asbetween private parties in the courts of theUnited States. On a motion under this rule, thecourt may open the judgment if one has beenentered, take additional testimony, amendfindings of fact and conclusions of law ormake new findings and conclusions, anddirect the entry of a new judgment.

(2) The court, at any time while a suit ispending before it, or after proceedings forreview have been instituted, or within 2 yearsafter the final disposition of the suit, maygrant the United States a new trial and stay thepayment of any judgment upon satisfactoryevidence, cumulative or otherwise, that anyfraud, wrong, or injustice has been done to theUnited States.(b) Time for Motion and Response. Except

as provided in subdivision (a)(2), a motion for anew trial, or for amendment or reconsideration ofa judgment, shall be filed no later than 10 daysafter the entry of the judgment. When such amotion is based on affidavits, they shall be filedwith the motion. No response to any motion underthis rule may be filed, unless requested by thecourt. The court will not rule in favor of anymotion under this rule without first requesting byorder a response to the motion.

(c) Time for Serving Affidavits. [Not used.](d) On Court’s Initiative; Notice;

Specifying Grounds. No later than 10 days afterentry of judgment the court, on its own, may ordera new trial for any reason that would justifygranting one on a party’s motion. After giving theparties notice and an opportunity to be heard, thecourt may grant a timely motion for a new trial fora reason not stated in the motion. When grantinga new trial on its own initiative or for a reason notstated in a motion, the court shall specify thegrounds in its order.

(e) Motion to Alter or Amend a Judgment.Any motion to alter or amend a judgment shall befiled no later than 10 days after entry of thejudgment.



Minor changes in wording have been made tomore closely conform to FRCP 59. Subdivision (c)was deleted to reflect the difference in Court ofFederal Claims practice, set out in subdivision (b),which directs that a response to a RCFC 59 motionis required only when directed by the court, even ifthe motion is accompanied by an affidavit. Otherdifferences were retained, including the distinctionbetween final and non-final orders, which can bethe subject of motions for reconsideration at anytime before final judgment.

Rule 60. Relief from Judgment or Order(a) Clerical Mistakes. Clerical mistakes in

judgments, orders or other parts of the record anderrors therein arising from oversight or omissionmay be corrected by the court at any time of itsown initiative or on the motion of any party andafter such notice, if any, as the court orders. Duringthe pendency of an appeal, such mistakes may beso corrected before the appeal is docketed in theappellate court, and thereafter while the appeal ispending may be so corrected with leave of theappellate court.

(b) Mistakes; Inadvertence; ExcusableNeglect; Newly Discovered Evidence; Fraud,Etc. On motion and upon such terms as are just,the court may relieve a party or a party's legalrepresentative from a final judgment, order, orproceeding for the following reasons: (1) mistake,inadvertence, surprise, or excusable neglect; (2)newly discovered evidence which by due diligencecould not have been discovered in time to move fora new trial under RCFC 59(b); (3) fraud (whetherheretofore denominated intrinsic or extrinsic),misrepresentation, or other misconduct of anadverse party; (4) the judgment is void; (5) thejudgment has been satisfied, released, ordischarged, or a prior judgment upon which it isbased has been reversed or otherwise vacated, or itis no longer equitable that the judgment shouldhave prospective application; or (6) any otherreason justifying relief from the operation of thejudgment. The motion shall be made within areasonable 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

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under this subdivision (b) does not affect thefinality of a judgment or suspend its operation.This rule does not limit the power of a court toentertain an independent action to relieve a partyfrom a judgment, order, or proceeding, or to setaside a judgment for fraud upon the court. Writs ofcoram nobis, coram vobis, audita querela, and billsof review and bills in the nature of a bill of review,are abolished, and the procedure for obtaining anyrelief from a judgment shall be by motion asprescribed in these rules or by an independentaction.



Minor changes in wording have been made tomore closely conform to FRCP 60. Necessarydifferences were retained.

Rule 61. Harmless ErrorNo error in either the admission or the

exclusion of evidence and no error or defect in anyruling or order or in anything done or omitted bythe court or by any of the parties is ground forgranting a new trial or for vacating, modifying, orotherwise disturbing a judgment or order, unlessrefusal to take such action appears to the courtinconsistent with substantial justice. The court atevery stage of the proceeding must disregard anyerror or defect in the proceeding which does notaffect the substantial rights of the parties.




Rule 62. Stay of Proceedings to Enforce aJudgment

(a) Automatic Stay; Exceptions–Injunctionsand Patent Accountings. Except as stated herein,no execution shall issue upon a judgment nor shallproceedings be taken for its enforcement until theexpiration of 10 days after its entry. Unlessotherwise ordered by the court, an interlocutory orfinal judgment in an action for an injunction, or a

judgment or order directing an accounting in anaction for infringement of letters patent, shall notbe stayed during the period after its entry and untilan appeal is taken or during the pendency of anappeal. The provisions of subdivision (c) of thisrule govern the suspending, modifying, restoring,or granting of an injunction during the pendency ofan appeal.

(b) Stay on Motion for New Trial or forJudgment. In its discretion and on such conditionsfor the security of the adverse party as are proper,the court may stay the execution of or anyproceedings to enforce a judgment pending thedisposition of a motion for a new trial or to alter oramend a judgment made pursuant to RCFC 59, orof a motion for relief from a judgment or ordermade pursuant to RCFC 60, or of a motion foramendment to the findings or for additionalfindings made pursuant to RCFC 52(b).

(c) Injunction Pending Appeal. When anappeal is taken from an interlocutory or finaljudgment granting, dissolving, or denying aninjunction, the court in its discretion may suspend,modify, restore, or grant an injunction during thependency of the appeal upon such terms as to bondor otherwise as it considers proper for the securityof the rights of the adverse party.

(d) Stay Upon Appeal. When an appeal istaken the appellant by giving a supersedeas bondmay obtain a stay subject to the exceptionscontained in subdivision (a) of this rule. The bondmay be given at or after the time of filing the noticeof appeal or of procuring the order allowing theappeal, as the case may be. The stay is effectivewhen the supersedeas bond is approved by thecourt.

(e) Stay in Favor of the United States orAgency Thereof. When an appeal is taken by theUnited States or an officer or agency thereof or bydirection of any department of the Government ofthe United States and the operation or enforcementof the judgment is stayed, no bond, obligation, orother 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 powerof an appellate court or of a judge or justice thereofto stay proceedings during the pendency of anappeal or to suspend, modify, restore, or grant an

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injunction during the pendency of an appeal or tomake any order appropriate to preserve the statusquo or the effectiveness of the judgmentsubsequently to be entered.

(h) Stay of Judgment as to Multiple Claimsor Multiple Parties. When a court has ordered afinal judgment under the conditions stated in RCFC54(b), the court may stay enforcement of thatjudgment until the entering of a subsequentjudgment or judgments and may prescribe suchconditions as are necessary to secure the benefitthereof to the party in whose favor the judgment isentered.



Minor changes have been made to subdivision(a) to more closely conform to FRCP 62.Necessary differences were retained.

Rule 63. Inability of a Judge to ProceedIf a trial or hearing has been commenced and

the judge is unable to proceed, any other judge mayproceed with it upon certifying familiarity with therecord and determining that the proceedings in thecase may be completed without prejudice to theparties. The successor judge shall at the request ofa party recall any witness whose testimony ismaterial and disputed and who is available totestify again without undue burden. The successorjudge may also recall any other witness.



Subdivisions (b) and (c) of the court’s priorrule were deleted as unnecessary. The substance ofeach of these former subdivisions is covered in 28U.S.C. § 455 and in the Codes of Conduct forJudges and Judicial Employees. RCFC 63 asrewritten is essentially identical to FRCP 63.

VIII. PROVISIONAL AND FINALREMEDIES

Rule 64. Seizure of Person or Property [Notused.]

Rule 65. Injunctions(a) Preliminary Injunction.

(1) Notice. No preliminary injunctionshall be issued without notice to the adverseparty.

(2) Consolidation of Hearing WithTrial on Merits. Before or after thecommencement of the hearing of anapplication for a preliminary injunction, thecourt may order the trial of the action on themerits to be advanced and consolidated withthe hearing of the application. Even when thisconsolidation is not ordered, any evidencereceived upon an application for a preliminaryinjunction which would be admissible uponthe trial on the merits becomes part of therecord on the trial and need not be repeatedupon the trial.(b) Temporary Restraining Order; Notice;

Hearing; Duration. A temporary restraining ordermay be granted without written or oral notice to theadverse party or that party's attorney only if (1) itclearly appears from specific facts shown byaffidavit or by the verified complaint thatimmediate and irreparable injury, loss, or damagewill result to the applicant before the adverse partyor that party's attorney can be heard in opposition,and (2) the applicant's attorney certifies to the courtin writing the efforts, if any, which have been madeto give the notice and the reasons supporting theattorney's claim that notice should not be required.Every temporary restraining order granted withoutnotice shall be indorsed with the date and hour ofissuance; shall be filed forthwith in the clerk'soffice and entered of record; shall define the injuryand state why it is irreparable and why the orderwas granted without notice; and shall expire by itsterms within such time after entry, not to exceed 10days, as the court fixes, unless within the time sofixed the order, for good cause shown, is extendedfor a like period or unless the party against whomthe order is directed consents that it may beextended for a longer period. The reasons for theextension shall be entered of record. In case atemporary restraining order is granted withoutnotice, the motion for a preliminary injunction

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shall be set down for hearing at the earliestpossible time and takes precedence of all mattersexcept older matters of the same character; andwhen the motion comes on for hearing the partywho obtained the temporary restraining order shallproceed with the application for a preliminaryinjunction and, if the party does not do so, the courtshall dissolve the temporary restraining order. On2 days' notice to the party who obtained thetemporary restraining order without notice or onsuch shorter notice to that party as the court mayprescribe, the adverse party may appear and moveits dissolution or modification and in that event thecourt shall proceed to hear and determine suchmotion as expeditiously as the ends of justicerequire.

(c) Security. No restraining order orpreliminary injunction shall issue except upon thegiving of security by the applicant, in such sum asthe court deems proper, for the payment of suchcosts and damages as may be incurred or sufferedby any party who is found to have been wrongfullyenjoined or restrained. No such security shall berequired of the United States or of an officer oragency thereof.

The provisions of RCFC 65.1 apply to a suretyupon a bond or undertaking under this rule.

(d) Form and Scope of Injunction orRestraining Order. Every order granting aninjunction and every restraining order shall setforth the reasons for its issuance; shall be specificin terms; shall describe in reasonable detail, andnot by reference to the complaint or otherdocument, the act or acts sought to be restrained;and is binding only upon the parties to the action,their officers, agents, servants, employees, andattorneys, and upon those persons in active concertor participation with them who receive actualnotice of the order by personal service orotherwise.

(e) Employer and Employee. These rules donot modify any statute of the United States relatingto temporary restraining orders and preliminaryinjunctions in actions affecting employer andemployee.


Rules Committee Note

2002 RevisionMinor changes have been made to subdivision

(b) to more closely conform to its FRCPcounterpart. Additionally, former subdivision (f),titled “Procedures,” has been relocated toAppendix C. (Appendix C supersedes formerGeneral Order No. 38, dated May 7, 1998, whichdescribed the court’s standard practices inprocurement protest cases filed pursuant to 28U.S.C. § 1491(b).)

Rule 65.1 Security: Proceedings AgainstSureties

(a) Proceedings. Whenever these rulesrequire or permit the giving of security by a party,and security is given in the form of a bond orstipulation or other undertaking with one or moresureties, each surety submits to the jurisdiction ofthe court and irrevocably appoints the clerk of thecourt as the surety's agent upon whom any papersaffecting the surety's liability on the bond orundertaking may be served. The surety's liabilitymay be enforced on motion without the necessityof an independent action. The motion and suchnotice of the motion as the court prescribes may beserved on the clerk of the court, who shallforthwith mail copies to the sureties if theiraddresses are known.

(b) Sureties. Acceptable sureties on bondsshall be those bonding companies holdingcertificates of authority from the Secretary of theTreasury. See the latest U.S. Treasury Dept. Circ.570. When a court decision provides for the givingof security, the clerk will furnish counsel with theappropriate bond form.


Rules Committee Note2002 Revision*

Subdivision (a) is identical to FRCP 65.1except for the omission of language extending therule’s coverage to “the Supplemental Rules forCertain Admiralty and Maritime Claims.”Subdivision (b), titled “Sureties,” although uniqueto this court, provides information useful to thecourt’s practitioners and therefore was retained.

*As corrected November 15, 2007.

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Rule 66. Receivers Appointed by FederalCourts [Not used.]

Rule 67. Deposit in Court [Not used.]

Rule 68. Offer of JudgmentAt any time more than 10 days before the trial

begins, a party defending against a claim may serveupon the adverse party an offer to allow judgmentto be taken against the defending party for themoney or property or to the effect specified in theoffer, with costs then accrued. If within 10 daysafter the service of the offer the adverse partyserves written notice that the offer is accepted,either party may then file the offer and notice ofacceptance together with proof of service thereof,and thereupon the clerk shall enter judgment. Anoffer not accepted shall be deemed withdrawn andevidence thereof is not admissible except in aproceeding to determine costs. If the judgmentfinally obtained by the offeree is not morefavorable than the offer, the offeree must pay thecosts incurred after the making of the offer. Thefact that an offer is made but not accepted does notpreclude a subsequent offer. When the liability ofone party to another has been determined by orderor judgment, but the amount or extent of theliability remains to be determined by furtherproceedings, the party adjudged liable may makean offer of judgment, which shall have the sameeffect as an offer made before trial if it is servedwithin a reasonable time not less than 10 days priorto the commencement of hearings to determine theamount or extent of liability.



A minor change in wording has been made tomore closely conform to FRCP 68.

Rule 69. Execution [Not used.]

Rule 70. Judgment for Specific Acts; VestingTitle [Not used.]

Rule 71. Process in Behalf of and AgainstPersons Not Parties [Not used.]

IX. SPECIAL PROCEEDINGS

Rule 71A. Condemnation of Property [Notused.]

Rule 72. Notice of Appeal [Not used.]


Chapter IX of the FRCP, titled “SpecialProceedings,” (comprising FRCP 71A– 73) has notbeen included in the main body of the court’s rules.Instead, rules relating to the court’s specialproceedings appear in the appendices to the rules.

Rule 73. Magistrate Judges; Trial by Consentand Appeal [Not used.]

Rule 74. Method of Appeal From MagistrateJudge to District Judge Under Title 28 U.S.C.§ 636(c)(4) and Rule 73(d) [Abrogated in FRCP.]

Rule 75. Proceedings on Appeal FromMagistrate Judge to District Judge Under Rule73(d) [Abrogated in FRCP.]

Rule 76. Judgment of the District Judge on theAppeal Under Rule 73(d) and Costs [Abrogatedin FRCP.]

X. COURT AND CLERK

Rule 77. Court and Clerk(a) Court Always Open. The court shall be

deemed always open for the purpose of filing anypleading or other proper paper, of issuing andreturning process, and of making and directing allinterlocutory motions, orders, and rules.

(b) Trials and Hearings; Proceedings inChambers.

(1) Proceedings Generally. All trialsupon the merits shall be conducted in opencourt and so far as convenient in a regularcourtroom. All other acts or proceedings maybe done or conducted by a judge in chambers,without the attendance of the clerk or othercourt officials or at any other place designated

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by order.(2) Trials or Hearings in Foreign

Countries. Upon motion of a party or uponthe judge’s own initiative, and upon adetermination by the judge to whom the caseis assigned that the interests of economy,efficiency, and justice will be served, the chiefjudge of the Court of Federal Claims mayissue an order authorizing a judge of the courtto conduct proceedings, including evidentiaryhearings and trials, in a foreign country whoselaws do not prohibit such proceedings. (c) Clerk's Office and Orders by Clerk. The

clerk's office, with the clerk or a deputy inattendance, shall be open during business hours onall days except Saturdays, Sundays, and thefollowing holidays: New Year's Day, InaugurationDay, 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 thePresident or the Congress of the United States. Allmotions and applications in the clerk's office forissuing process, process to enforce and executejudgments, for entering defaults or judgments bydefault, and for other proceedings which do notrequire allowance or order of the court aregrantable of course by the clerk; but the clerk'saction may be suspended or altered or rescinded bythe court upon cause shown.

(d) Notice of Orders or Judgments.Immediately upon the entry of an order orjudgment the clerk shall serve a notice of the entryin the manner provided for in RCFC 5 upon eachparty who is not in default for failure to appear andshall make a note in the docket of the service. Anyparty may in addition serve a notice of such entryin the manner provided in RCFC 5 for the serviceof papers. Lack of notice of the entry by the clerkdoes not affect the time to appeal or relieve orauthorize the court to relieve a party for failure toappeal within the time allowed, except as permittedin Rule 4(a) of the Federal Rules of AppellateProcedure.



2002 RevisionTo more closely parallel the structure and

content of FRCP 77, RCFC 77 has been modifiedas follows:

Former subdivisions (a) (referring to thecourt’s “Name”), (b) (referring to the court’s“Seal”), (d) (captioned “Citations”), and (e)(identifying the court’s judicial power as beingexercisable by a single judge, except incongressional reference cases), have been deletedas unnecessary.

Subdivision (b) (formerly subdivision (h) ofthis rule) has been changed in two respects. First,in order better to reflect its content, the subdivisionhas been retitled to read “Trials and Hearings;Proceedings in Chambers” (in lieu of “Trials andHearings; Orders in Chambers”). Second, thesubdivision has been divided into paragraphs (1)and (2). Paragraph (1), captioned “ProceedingsGenerally,” retains the rule’s earlier language;paragraph (2), captioned “Trials or Hearings inForeign Countries,” has been added to recognizethe court’s authority under 28 U.S.C. § 798(b) toconduct trials or hearings in foreign countries.

Former subdivision (f), titled “Assignment ofCases,” was renumbered as RCFC 40.1.

Former subdivision (g), titled “Signing ofOrders for Absent Judges,” was renumbered asRCFC 77.2(b).

Former subdivisions (l) and (k), titled,respectively, “Scheduling Courtrooms” and “FeeSchedule,” were renumbered as RCFC 77.1.

Finally, former subdivision (m) was deleted inorder to recognize the right of certain courtemployees to participate in pro bono legal workunder the guidelines prescribed for that purpose bythe Codes of Conduct for Judicial Employees.

Rule 77.1 Business Hours, Scheduling, and Fees(a) Business Hours. The clerk’s office is

open during the hours 8:45 a.m. to 5:15 p.m. onbusiness days. A night box is provided for filingwith the clerk’s office between the hours of 5:15p.m. and 12:00 midnight on any business day forpapers due that day. The box is located inside thegate at the garage entrance on H Street. It issuggested that counsel telephone the clerk's officeby 9:30 a.m. of the next day as to receipt, (202)357-6400.

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(b) Scheduling. The clerk shall schedule theuse of courtrooms in Washington, DC, and shall beresponsible for all arrangements for courtroomsand other facilities required by the court atlocations other than in Washington, DC. Allconferences, oral arguments, trials, and otherrecorded appearances shall be scheduled by theassigned judge by order filed with the clerk.

(c) Fee Schedule. (1) Fees for services rendered by the

clerk are payable in advance; all checks shallbe made payable to “Clerk, United StatesCourt of Federal Claims.”

(2) The fees payable are prescribed bythe Judicial Conference of the United Statespursuant to 28 U.S.C. § 1926(a) as adjusted,in the case of the fee for admission, inaccordance with RCFC 83.1(b)(4). A copy ofthe applicable schedule of fees is posted ont h e c o u r t ’ s w e b s i t e a thttp://www.uscfc.uscourts.gov. The currentschedule of fees may also be obtained bycalling the clerk’s office.

(As revised and reissued May 1, 2002; as amendedMarch 15, 2005, August 2, 2005.)


Former RCFC 77.1 was deleted in its entirety.Current RCFC 77.1 reflects portions of the text offormer subdivision (c) as well as subdivisions (h)and (i) of RCFC 77.

2005 AmendmentsSubdivision (c)(2) has been revised to

conform more precisely to 28 U.S.C. § 1926(a)which provides that “[t]he Judicial Conference ofthe United States shall prescribe from time to timethe fees and costs to be charged and collected inthe United States Court of Federal Claims.” Thisauthorization for the Judicial Conference toprescribe fees for the court has a counterpart in28 U.S.C. § 1914 which pertains to fees for districtcourts. Ordinarily, the Judicial Conference amendsthe fee schedules for both district courts and thiscourt at the same time. In addition, subdivision(c)(2) recognizes the court’s authority to include asan additional admission fee the amount provided

for in RCFC 83.1(b)(4). Currently applicable feeschedules are obtainable on the court’s website andthrough a variety of other published sources.

Rule 77.2 Authorization to Act on CertainMotions

(a) Clerk Authorization. Any motion forenlargement of time to answer or respond to thecomplaint or for substitution of counsel may beacted upon by the clerk of the court if (1) themotion states that opposing counsel has noobjection, (2) no opposition to the motion has beentimely filed, or (3) opposing counsel files aconsent.

In acting on motions for enlargement of timeunder this subdivision, the total enlargement oftime allowed by the clerk with respect to anymatter shall not exceed 60 days.

(b) Signing of Orders for Absent Judges. Ifthe assigned judge is not available and there is anemergency necessitating an order, the matter shallbe presented to the chief judge, or to another judgedesignated by the assigned judge.



RCFC 77.2 has no FRCP counterpart. Therule has been changed in several respects. First,former subdivisions (a) and (b) were combined intoa new subdivision (a). Second, language in formersubdivision (a) relating to the “permanentwithdrawal of papers” was deleted to reflectcorresponding changes in RCFC 77.3 that abolishthe practice of permitting the withdrawal of papersfrom the clerk’s office. Third, former subdivisions(c) and (d) were deleted as unnecessary. Finally,new subdivision (b) reflects text transferred fromformer subdivision (g) of RCFC 77.

Rule 77.3 Withdrawal of Papers and Exhibits(a) Withdrawal for Trial. The reporter

engaged to transcribe the evidence may temporarilywithdraw all papers and exhibits for use during anytrial session. All exhibits admitted into evidence ordesignated to accompany the transcript shallremain in the reporter’s custody until the transcriptof the court session is filed with the clerk.

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(b) Withdrawal of Papers and Exhibits. Nopapers or exhibits filed with the court shall betemporarily or permanently withdrawn from theoffice or custody of the clerk except by order of thecourt. No such order will be entered except inextraordinary circumstances. In the event of suchwithdrawal, a record of the filing and the order ofwithdrawal shall be preserved.

(c) Disposition of Physical Exhibits. Allphysical exhibits, including models, diagrams,depositions, transcripts, briefs, tables, and chartsshall be removed from the clerk’s custody by theparty by whom they were produced or offeredwithin 60 days after the entry of final judgment bythis court, or, in the event of an appeal, within 90days after the receipt and filing of a mandate orother process or certificate showing the dispositionof the case by the appellate court; otherwise, suchexhibits shall be deemed abandoned and shall bedestroyed or otherwise disposed of by the clerk.

(d) Sealed Materials. Unless otherwiserequired by statute or order, no earlier than fiveyears after the entry of final judgment by this court,or, in the event of appeal, within five years afterthe receipt and filing of a mandate or other processor certificate showing disposition of the case by theappellate court, the clerk may notify the parties thatmaterials maintained under seal shall be unsealed,absent timely notice of objection by either party.



RCFC 77.3 has no FRCP counterpart. Therule has been amended in several respects:

First, former subdivision (a) was deleted,thereby eliminating the practice of permittingtemporary withdrawal of exhibits and papers by theparties. The need to accommodate the copying ofextensive parts of a record shall be addresseddirectly through arrangements made by the clerk.

Subdivision (a), formerly subdivision (b), wasamended to clarify that the reporter is to retaincustody of the transcript and exhibits until they arefiled 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 ofa court order, and then only in extraordinarycircumstances. The fact of withdrawal shall bepreserved in the court’s docketing entries.

New subdivision (c), formerly subdivision (d),was rewritten to clarify the practice with respect tothe disposition of physical exhibits and to makeclear the parties’ obligation to retrieve suchexhibits, to avoid their loss through routinedisposal. The reference to in camera materials wasomitted, because such materials are not filed withthe clerk’s office.

New subdivision (d) establishes a procedurefor handling materials filed under seal, requiringthe parties affirmatively to indicate a desire tomaintain filings in closed cases under seal.

2007 AmendmentSubdivision (d) of RCFC 77.3 has been

amended by substituting the introductory words“unless otherwise required by statute or order” inplace of the former text “unless otherwise specifiedby order.” The amendment is intended torecognize that under certain statutes, materialsoriginally filed under seal must be maintainedunder seal in perpetuity. See, e.g., NationalChildhood Vaccine Injury Act, 42 U.S.C. § 300aa-12(d)(4)(A).

Rule 78. Motion Day [Not used.]

Rule 79. Books and Records Kept by the Clerkand Entries Therein

(a) Civil Docket. The clerk shall keep a bookknown as “civil docket'' of such form and style asmay be prescribed by the Director of theAdministrative Office of the United States Courtswith the approval of the Judicial Conference of theUnited States, and shall enter therein each civilaction to which these rules are made applicable.Actions shall be assigned consecutive file numbers.The file number of each action shall be noted onthe folio of the docket whereon the first entry ofthe action is made. All papers filed with the clerk,all process issued and returns made thereon, exceptfor subpoenas, all appearances, orders, andjudgments shall be entered chronologically in thedocket on the folio assigned to the action and shallbe marked with its file number. These entries shall

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be brief but shall show the nature of each paperfiled or writ issued and the substance of each orderor judgment of the court and of the returns showingexecution of process. The entry of an order orjudgment shall show the date the entry is made.

(b) Civil Judgments and Orders. The clerkshall keep, in such form and manner as the Directorof the Administrative Office of the United StatesCourts with the approval of the JudicialConference of the United States may prescribe, acorrect copy of every final judgment or appealableorder, or order affecting title to or lien upon real orpersonal property, and any other order which thecourt may direct to be kept.

(c) Indices; Calendars. Suitable indices ofthe civil docket and of every civil judgment andorder referred to in subdivision (b) of this rule shallbe kept by the clerk under the direction of thecourt.

(d) Other Books and Records of the Clerk.The clerk shall also keep such other books andrecords as may be required from time to time bythe Director of the Administrative Office of theUnited States Courts with the approval of theJudicial Conference of the United States.



The word “civil” has been added tosubdivision (a) to more closely conform toFRCP 79. RCFC 79 as it now reads is essentiallyidentical to FRCP 79.

Rule 80. Record or Transcript as EvidenceWhenever the testimony of a witness at a trial

or hearing which was reported is admissible inevidence at a later trial, it may be proved by thetranscript thereof duly certified by the person whoreported the testimony or by any other methodauthorized by the court.



Former subdivisions (a), (b), and (c) were

deleted and minor changes have been made toformer subdivision (d) in order to more closelyconform to FRCP 80.

2007 AmendmentRCFC 80, which previously limited

certification of a trial record to “the person whoreported the testimony,” has been expanded toinclude certification “by any other methodauthorized by the court.” This expansion addressesthe certification requirement in cases wheretestimony at a trial or hearing is recordedelectronically under court supervision withoutreporter assistance.

Rule 80.1 Instructions to Reporters(a) Record of Proceedings. The court will

furnish a reporter to transcribe trial proceedings. (b) Reporter; Control. The reporter shall be

under the jurisdiction and control of the assignedjudge.

(c) Caption Page. There shall be stated onthe caption page: (a) the style of the cause in whichthe testimony is taken; (b) the place and date of itstaking; (c) the identity of the party by whom eachwitness is called; (d) the name of the judge; and (e)the appearances of counsel. See Appendix ofForms, Form 3.

(d) Testimony. The transcript of proceedingsand testimony shall show the name of counsel bywhom each witness was examined andcross-examined. At the top of each page shallappear the name of the witness and the nature ofhis or her examination, such as Roe-direct,Roe-cross, Roe-redirect, and Roe-recross.

(e) Preparation of Transcript. The reportershall transcribe all testimony on nontransparentwhite paper, either 8 ½ inches wide by 11 incheslong, or 8 inches wide by 10 ½ inches long, boundon the left margin. The pages shall be numberedconsecutively, with a minimum of 25 lines perpage. It is not necessary for the witnesses to signthe transcripts of their testimony.

(f) Exhibits. All exhibits offered by either ofthe parties shall bear the caption and number of thecase, the exhibit numbers, in figures, whether forplaintiff or defendant unless the court provides forthe offering parties to otherwise designate theirexhibits, and the number of sheets in each exhibit.

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All exhibits admitted into evidence or designated toaccompany the transcript shall accompany and befiled with the transcript of the testimony, but shallnot be affixed thereto.

(g) Certificate of Reporter. The reportershall append to the transcript of the testimony acertificate similar to Appendix of Forms (Forms3A and 3B). The certificate shall be signed by thereporter.

(h) Index. At the beginning of each volumeof the transcript of testimony, there shall be anindex containing: (a) the names of the witnessesexamined, citing the pages of the transcript wheredirect, cross, redirect, or recross began; and (b) theexhibits in the case, first for the plaintiff and thenfor the defendant, with a brief statement of thenature of each of the exhibits and with referencesto the pages of the transcript where said respectiveexhibits were (1) offered and (2) received intoevidence. In addition, upon the preparation of thefinal transcript, where the number of pages exceeds500, a master index containing the sameinformation shall be prepared and boundseparately.

(i) Return of Transcript and Exhibits.Unless otherwise ordered by the judge, the reportershall file the transcript of trial proceedings,including the exhibits admitted in evidence ordesignated to accompany the transcript, with theclerk within 30 days after the conclusion of thetrial session at which such proceedings were had.The filing may be accomplished by personaldelivery of the transcript and exhibits to the clerk'soffice or by enclosing them in a packet andtransmitting them to the Office of the Clerk of theUnited States Court of Federal Claims, 717Madison Place, NW, Washington, DC 20005, insufficient time for the transcript and exhibits to befiled within the prescribed period. The obligationfor the filing of the transcript and exhibits withinthe prescribed period rests upon the reporter.

(As revised and reissued May 1, 2002; as amendedAugust 2, 2005.)


RCFC 80.1 has no FRCP counterpart. Therule’s principal text formerly appeared in these

rules as Appendix A. The incorporation of formerAppendix A into the main body of the rules reflectsa more logical placement of its subject matter inthe organizational structure of the court’s rules.Additionally, as part of this rule’s relocation,Forms A and B of former Appendix A (pertainingto reporter certifications) were assigned to the newAppendix of Forms. They appear there as Forms3A and 3B.

Other changes introduced in this rule includethe following:

Subdivision (a) formerly appeared in theserules as paragraph (b)(1) of RCFC 39. Thechanges introduced in new subdivision (a) weredeemed necessary in order to eliminate uncertaintyas to the court’s authority to furnish a reporter fortrials scheduled outside of the United States.

Subdivision (b) formerly appeared asparagraph (b)(2) of RCFC 39.

Subdivision (i) formerly appeared asparagraph (b)(3) of RCFC 39. Additionally,subdivision (i) reflects the change in the court’sname.

2005 AmendmentSubdivision (d) has been amended to specify

that the reporter shall show on each page of a trialtranscript the name of the witness being questionedand the name of the examining counsel. Thischange is intended to aid both counsel and thecourt in working with transcripts during post-trialproceedings, especially where trials have beenlengthy.

XI. GENERAL PROVISIONS

Rule 81. Applicability in General [Not used.]

Rule 82. Jurisdiction and Venue Unaffected [Not used.]

Rule 83. Rules by Court of Federal Claims;Judge’s Directives

(a) Rules. The United States Court of FederalClaims, acting by a majority of its judges, may,after giving appropriate public notice and anopportunity for comment, make and amend rulesgoverning its practice. Such rules, to the extent

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permitted by this court’s jurisdiction, shall beconsistent with the FRCP and shall conform to anyuniform numbering system prescribed by theJudicial Conference of the United States. A ruletakes effect on the date specified by the court andremains in effect unless amended by the court.Copies of rules and amendments shall be madeavailable to the public.

(b) Procedures When There Is NoControlling Law. A judge may regulate practicein any manner consistent with federal law or rulesadopted under 28 U.S.C. § 2072 or 2503(b). Nosanction or other disadvantage may be imposed fornoncompliance with any requirement not in federallaw, federal rules, or these rules, unless the allegedviolator has been furnished in the particular casewith actual notice of the requirement.



RCFC 83 is modeled after FRCP 83. The rulerecognizes the court’s rule-making authority as setforth at 28 U.S.C. § 2503, as well as the assignedjudge’s authority to regulate practice in anindividual case, so long as that practice isconsistent with federal law and rules.

Rule 83.1 Attorneys(a) Attorneys Eligible to Practice. Only

attorneys who are members of the bar of this courtand who comply with these rules may enter anappearance, file pleadings, and practice in thiscourt, provided that any attorney admitted topractice before the highest court of any state,territory, possession, or the District of Columbiamay participate pro hac vice in any proceeding atthe request of and in the presence of the attorney ofrecord for a party to the proceeding, or otherwisewith the approval of the court. All attorneys whowere members in good standing of the bar of theUnited States Court of Claims are eligible topractice herein. See RCFC 83.1(c)(2) concerningauthorization to sign filings.

(b) Admission to Practice. (1) Qualifications; Oath. Any person of

good moral character who has been admittedto practice before the Supreme Court of the

United States, the United States Court ofAppeals for the Federal Circuit, or the highestcourt of any state, territory, possession, or theDistrict of Columbia, and is in good standingtherein, may be admitted to practice beforethis court upon oral motion or by verifiedapplication, as provided in this rule, and upontaking or subscribing to the following oath: I,_________, do solemnly swear (or affirm)that I will support the Constitution of theUnited States and that I will conduct myself inan upright manner as an attorney of this court.

(2) Upon Oral Motion. (A) In Washington, DC. An oral

motion for admission may be made by amember of the bar of this court beforeany judge of this court, and the judge orthe clerk shall administer the oath.Motions for admission will be heardmonthly on the dates posted on thecourt’s website, generally Thursday ofthe first full week in each month.Applicants for admission must appear inthe clerk’s office no later than 9:30 a.m.to pay the admission fee and fill out thenecessary papers. Motions will be heardpromptly at 10:00 a.m. at the NationalCourts Building, 717 Madison Place,NW, Washington, DC 20005, in acourtroom posted in the lobby on the dayscheduled for hearing the motions.Applicants who for special reasons areunable to appear for admission on one ofthe posted dates should contact theclerk’s office to make appropriatearrangements.

(B) Outside Washington, DC. Anoral motion for admission may be madeby a member of the bar of this courtbefore a judge of this court outsideWashington, DC, who shall administerthe oath. As a preliminary to the motion,the attorney who moves the admissionshall submit to the judge the appropriateform obtained from the judge andcompleted by the applicant. In theabsence of an oral motion for admissionin conformity with this subdivision, theapplicant may advise the judge of the

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applicant's qualifications as set forth insubdivision (b)(1). Upon considerationthereof, and upon representation by theattorney that such attorney will promptlyapply to the clerk for admission byverified application as provided insubdivision (b)(3), the judge may permitthe applicant to participate in theparticular proceeding.(3) By Verified Application. Without

need for appearing in person, admission maybe made upon presentation to the clerk of averified application showing that the applicantis possessed of the qualifications described insubdivision (b)(1). See Appendix of Forms,Form 1. The application shall be accompaniedby: (A) a certificate of a judge or of the clerkof any of the courts specified in subdivision(b)(1) indicating that the applicant is amember of the bar of such court and is ingood standing therein; (B) two letters orsigned statements of members of the bar ofthis court or of the Supreme Court of theUnited States, not related to the applicant,affirming that the applicant is personallyknown to them, that the applicant possessesall the qualifications required for admission tothe bar of this court, that they have examinedthe application, and that the applicant'spersonal and professional character andstanding are good; and (C) an oath in the formprescribed in subdivision (b)(1) signed by theapplicant and administered by an officerauthorized to administer oaths in the state,territory, possession, or the District ofColumbia, where the oath is administered, oras permitted by 28 U.S.C. §1746.

(4) Fee for Admission. Unless theapplicant is employed by this court or is anattorney representing the United States beforethis court, an admission fee shall be paid inaccordance with the schedule referenced inRCFC 77.1. The scheduled admission feeshall incorporate an additional $100.00, overand above the fee amount prescribed by theJudicial Conference of the United Statespursuant to 28 U.S.C. § 1926(a). The clerkshall deposit this additional amount to thecredit of a fund to be used by the court for the

benefit of the members of the bench and thebar in the administration of justice.

(5) Admission of Foreign Attorneys.An attorney, barrister, or advocate who isqualified to practice in the highest court ofany foreign state may be specially admittedfor purposes limited to a particular case. Suchattorney, barrister, or advocate shall not,however, be authorized to act as attorney ofrecord. In the case of such applicants, the oathshall not be required and there shall be no fee.Such admission shall be only on writtenmotion of a member of the bar of this court,filed with the clerk at least 3 days prior to theconsideration of the motion by the court.(c) Attorneys of Record.

(1) One for Each Party. There shall bebut one attorney of record for a party in anycase at any one time, and such attorney ofrecord shall be an individual (and not a firm)who has been admitted to practice before thiscourt. Any other attorneys assisting theattorney of record shall be designated as “ofcounsel.”

(2) Authorization to Sign Filings. Anyattorney who is a member of the bar of thiscourt may sign any filing in the attorney ofrecord's name. An attorney who signs thename of the attorney of record shall soindicate by adding the following after thename of the attorney of record: “by [thesigning attorney's full name].'' Authorizationto sign filings shall not relieve the attorney ofrecord from the provisions of RCFC 11.

(3) Appearance. For parties other thanthe United States, the attorney of record shallinclude on the initial pleading or paper saidattorney's name, address, telephone number,and facsimile number. For the United Statesthe attorney who is to appear as the attorneyof record shall, promptly after service of thecomplaint, file with the clerk and serve on allother parties a notice of appearance settingforth the identical information. The attorneysof record for all parties shall promptly filewith the clerk and serve on all other parties anotice of any change in address.

(4) Change by Parties Other than theUnited States. A party other than the United

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States may by leave of court on motionchange the party's attorney at any time. Themotion may be signed by said party in personor by the newly designated attorneyaccompanied by an affidavit of appointmentexecuted by such attorney. If the consent ofthe previous attorney of record is annexed toor endorsed on the motion, substitution shallbe accomplished by an appropriate entry onthe docket by the clerk. When the motion isnot thus shown to have the consent of theprevious attorney, such attorney shall beserved with the motion and shall have 14 daysto show cause why the motion should not beallowed.

(5) Change by the United States. A newnotice of appearance shall be filed and servedon all parties by the United States whenever acase is reassigned to another attorney.

(6) Withdrawal of Attorney. Noattorney of record for a plaintiff or a thirdparty may withdraw such attorney'sappearance except by leave of the court onmotion and after notice is served on suchattorney's client.

(7) Death of Attorney. If the attorney ofrecord dies, a suggestion of such attorney'sdeath shall be made, and a motion tosubstitute another attorney admitted topractice before this court may be made by theplaintiff.

(8) Unrepresented Party. An individualmay represent oneself or a member of one'simmediate family as a party before the court.Any other party, however, must berepresented by an attorney who is admitted topractice in this court. A corporation may onlybe represented by counsel. The terms counselor attorney in these rules shall includeunrepresented parties.(d) Honorary Membership. Honorary

membership in the bar of the court may be grantedfrom time to time to distinguished professionals ofthe United States or of other nations who areknowledgeable in the affairs of law andgovernment in their respective countries. Afternomination by the chief judge and approval by thecourt, the candidate for honorary membership willbe presented at the bar in person. A certificate of

honorary membership in the bar will be presentedto the person so honored.

(As revised and reissued May 1, 2002; as amendedAugust 2, 2005, June 20, 2006.)


RCFC 83.1 has no FRCP counterpart. FormerRCFC 83.1, titled “Content of Briefs orMemoranda; Length of Briefs or Memoranda,” hasbeen renumbered as RCFC 5.2. The renumberingof RCFC 83.1 was intended to reflect its morelogical placement in the organizational structure ofthis court’s rules.

The substance of the rule reflects the text offormer RCFC 81, as modified. Paragraph (2) ofsubdivision (c) (formerly paragraph (d)(2) ofRCFC 81) was amended to formalize the court’spractice of allowing joint filings to be signed byone counsel, on behalf of both counsel, whenauthorized to do so by opposing counsel. Also,subdivision (e) of former RCFC 81 (relating toattorneys’ fees and expenses) was not retained aspart of this rule but was, instead, incorporated intoRCFC 54(d)(2).

In addition, former General Order No. 15,titled “Honorary Bar Membership,” was slightlymodified and moved to new subdivision 83.1(d).

2005 Amendment RCFC 83.1(b)(4) (Fee for Admission) has

been amended to set forth the practice, underguidelines approved by the Judicial Conference ofthe United States, of adding an amount to theadmission fee set pursuant to 28 U.S.C. § 1926(a)for deposit into a fund to be used by the court forthe benefit of the members of the bench and the barin the administration of justice.

2006 AmendmentSubdivision 83.1(b)(2)(A) (Admission to

Practice Upon Oral Motion) has been amended toprovide some flexibility respecting when motionsfor admission to practice will be heard upon oralmotion.

Rule 83.2 Rules of Disciplinary EnforcementThe United States Court of Federal Claims, in

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furtherance of its inherent power and responsibilityto supervise the conduct of attorneys who areadmitted to practice before it, or admitted for thepurpose of a particular proceeding pursuant toRCFC 83.1(a) and (b)(5), promulgates thefollowing Rules of Disciplinary Enforcementsuperseding all of its former rules pertaining todisciplinary enforcement heretofore promulgated.

(a) Attorneys Convicted of Crimes. (1) Upon the filing with the court of a

certified copy of a judgment of convictiondemonstrating that any attorney admitted topractice before the court has been convicted inany court of the United States, or of theDistrict of Columbia, or of any state, territory,commonwealth, or possession of the UnitedStates of a serious crime as hereinafterdefined, the court shall enter an orderimmediately suspending that attorney,whether the conviction resulted from a plea ofguilty or nolo contendere or from a verdictafter trial or otherwise, and regardless of thependency of any appeal, until final dispositionof a disciplinary proceeding to be commencedupon such conviction. A copy of such ordershall immediately be served upon the attorney.Upon good cause shown, the court may setaside such order when it appears in theinterest of justice so to do.

(2) The term “serious crime” shallinclude any felony and any lesser crime anecessary element of which, as determined bythe statutory or common law definition ofsuch crime in the jurisdiction where thejudgment was entered, involves falseswearing, misrepresentation, fraud, willfulfailure to file income tax returns, deceit,bribery, extortion, misappropriation, theft, oran attempt or a conspiracy or solicitation ofanother to commit a serious crime.

(3) A certified copy of a judgment ofconviction of an attorney for any crime shallbe conclusive evidence of the commission ofthat crime in any disciplinary proceedinginstituted against that attorney based upon theconviction. (4) Upon the filing of a certified copy ofa judgment of conviction of an attorney for aserious crime, the court shall, in addition to

suspending that attorney in accordance withthe provisions of this rule, refer the matter tocounsel for the institution of a disciplinaryproceeding before the court in which the soleissue to be determined shall be the extent ofthe final discipline to be imposed as a result ofthe conduct resulting in the conviction,provided that a disciplinary proceeding soinstituted will not be brought to final hearinguntil all appeals from the conviction areconcluded. (5) Upon the filing of a certified copy ofa judgment of conviction of an attorney for acrime not constituting a serious crime, thecourt may refer the matter to counsel forwhatever action counsel may deem warranted,including the institution of a disciplinaryproceeding before the court; provided,however, that the court may in its discretionmake no reference with respect to convictionsfor minor offenses.

(6) An attorney suspended under theprovisions of this rule will be reinstatedimmediately upon the filing of a certificatedemonstrating that the underlying convictionof a serious crime has been reversed, but thereinstatement will not terminate anydisciplinary proceeding then pending againstthe attorney, the disposition of which shall bedetermined by the court on the basis of allavailable evidence pertaining to both guilt andthe extent of discipline to be imposed.(b) Discipline Imposed by Other Courts;

Disbarment on Consent or Resignation in OtherCourts.

(1) Any attorney admitted to practicebefore this court shall, upon being subjectedto public discipline by any other court of theUnited States or District of Columbia, or by acourt of any state, territory, commonwealth orpossession of the United States, promptlyinform the clerk of such action.

(2) Any attorney admitted to practicebefore the court shall, upon being disbarred onconsent or resigning from the bar of any othercourt of the United States or the District ofColumbia, or from the bar of any state,territory, commonwealth, or possession of theUnited States while an investigation into

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allegations of misconduct is pending,promptly inform the clerk of such disbarmenton consent or resignation.

(3) Upon the filing of a certified copy ofa judgment or order demonstrating that anattorney admitted to practice before the courthas been disciplined by another court or uponaccepting disbarment on consent orresignation, the court shall forthwith issue anotice directed to the attorney containing: acopy of the judgment or order from the othercourt or a copy of the communicationindicating disbarment on consent orresignation; and an order to show causedirecting that the attorney inform the courtwithin 30 days after service of that order uponthe attorney, personally or by mail of anyclaim by the attorney predicated upon thegrounds set forth in paragraph (5), and that theimposition of the identical discipline by thecourt would be unwarranted and the reasonstherefor.

(4) In the event the discipline imposed inthe other jurisdiction has been stayed there,any reciprocal discipline imposed in the courtshall be deferred until such stay expires.

(5) Upon the expiration of 30 days fromservice of the notice issued pursuant to theprovisions of paragraph (3), the court shallimpose the identical discipline unless therespondent-attorney demonstrates, or the courtfinds, that upon the face of the record uponwhich the discipline in another jurisdiction ispredicated it clearly appears:

(A) that the procedure was solacking in notice or opportunity to beheard as to constitute a deprivation ofdue process;

(B) that there was such an infirmityof proof establishing the misconduct asto give rise to the clear conviction thatthe court could not, consistent with itsduty, accept as final the conclusion onthat subject;

(C) that the imposition of the samediscipline by the court would result ingrave injustice; or

(D) that the misconduct establishedis deemed by the court to warrant

substantially different discipline. Where the court determines that any of saidelements exist, it shall enter such other orderas it deems appropriate.

(6) In all other respects, a finaladjudication in another court that an attorneyhas been guilty of misconduct shall establishconclusively the misconduct for purposes of adisciplinary proceeding in the court.

(7) The court may at any stage appointcounsel to prosecute the disciplinaryproceedings.(c) Standards for Professional Conduct.

(1) For misconduct defined in this ruleand after notice and opportunity to be heard,any attorney admitted to practice before thecourt may be disbarred, suspended frompractice before the court, publiclyreprimanded, or subjected to such otherdisciplinary action as the circumstances maywarrant.

(2) Acts or omissions by an attorneyadmitted to practice before the court,individually or in concert with any otherperson or persons, which violate the Code ofProfessional Responsibility adopted by thecourt shall constitute misconduct and shall begrounds for discipline, whether or not the actor omission occurred in the course of anattorney-client relationship. The Code ofProfessional Responsibility adopted by thecourt is the American Bar Association ModelRules of Professional Conduct, as amendedfrom time to time by the Association, exceptas otherwise provided by specific rule of thecourt.(d) Disciplinary Proceedings. (1) When misconduct or allegations ofmisconduct which, if substantiated, wouldwarrant discipline on the part of an attorneyadmitted to practice before the court shallcome to the attention of a judge or specialmaster of the court, whether by complaint orotherwise, and the applicable procedure is nototherwise mandated by this rule, the judge orspecial master shall refer the matter to thechief judge for determination whether thematter should be referred to a disciplinaryjudge for a formal disciplinary proceeding or

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the formulation of such other recommendationas may be appropriate.

(2) Should the disciplinary judgeconclude after review that a formaldisciplinary proceeding should not be initiatedagainst the respondent-attorney becausesufficient evidence is not present, or becausethere is pending another proceeding againstthe respondent-attorney, the disposition ofwhich in the judgment of the disciplinaryjudge should be awaited before further actionby the court is considered or for any othervalid reason, the disciplinary judge shall filewith the court a recommendation fordisposition of the matter, whether bydismissal, admonition, deferral, or otherwisesetting forth the reasons therefor.

(3) To initiate formal disciplinaryproceedings, the disciplinary judge shall filean order of the court upon a showing ofprobable cause requiring the respondent-attorney to show cause within 30 days afterservice of that order upon that attorney,personally, or by mail, why the attorneyshould not be disciplined.

(4) Upon the respondent-attorney'sanswer to the order to show cause, if any issueof fact is raised or the respondent-attorneywishes to be heard in mitigation, thedisciplinary judge shall set the matter forprompt 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 aninvestigation into or a pending proceedinginvolving allegations of misconduct mayconsent to disbarment, but only by deliveringto the court an affidavit stating that theattorney desires to consent to disbarment andthat:

(A) the attorney's consent is freelyand voluntarily rendered; the attorney isnot being subjected to coercion orduress; the attorney is fully aware of theimplications of so consenting;

(B) the attorney is aware that thereis a presently pending investigation orproceeding involving allegations that

there exist grounds for the attorney'sdiscipline the nature of which theattorney shall specifically set forth;

(C) the attorney acknowledges thatthe material facts so alleged are true; and

(D) the attorney so consentsbecause the attorney knows that ifcharges were predicated upon the mattersunder investigation, or if the proceedingwere prosecuted, the attorney could notsuccessfully defend himself.(2) Upon receipt of the required affidavit,

the court shall enter an order disbarring theattorney.

(3) The order disbarring the attorney onconsent shall be a matter of public record.However, the affidavit required under theprovisions of this rule shall not be publiclydisclosed or made available for use in anyother proceeding except upon order of thecourt.(f) Reinstatement.

(1) After Disbarment or Suspension.An attorney suspended for three months orless shall be automatically reinstated at theend of the period of suspension upon the filingwith the court of an affidavit of compliancewith the provisions of the order. An attorneysuspended for more than three months ordisbarred may not resume practice untilreinstated by order of the court, except asprovided in subdivision (a) of this rule.

(2) Time of Application FollowingDisbarment. A person who has beendisbarred after hearing or by consent may notapply for reinstatement until the expiration ofat least one year from the effective date of thedisbarment.

(3) Hearing on Application. Petitionsfor reinstatement by a disbarred or suspendedattorney under this rule shall be filed with theclerk and directed to the chief judge of thecourt. Such petitions shall demonstrate byclear and convincing evidence that thepetitioner has the moral qualifications,competency, and learning in the law beforethe court and that the petitioner’s resumptionto the practice of law will not be detrimentalto the integrity and standing of the bar or to

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the administration of justice, or be subversiveof the public interest. Upon receipt of thepetition, the chief judge shall promptly assignthe petition to one or more judges of the courtfor prompt action. The judge or judgesassigned to the matter shall within 30 daysafter referral issue an order of reinstatementbased upon the petition or, schedule a hearingat which the petitioner shall have the burdenof demonstrating the elements listed above.

(4) Deposit for Costs of Proceeding.The court may direct that petitions forreinstatement under this rule shall beaccompanied by an advance cost deposit in anamount to be set from time to time by thecourt to cover anticipated costs of thereinstatement proceeding.

(5) Conditions of Reinstatement. If thepetitioner is found unfit to resume the practiceof law, the petition shall be dismissed. If thepetitioner is found fit to resume the practice oflaw, the judgment shall reinstate thepetitioner, provided that the judgment maymake reinstatement conditional upon thepayment of all or part of the costs of theproceedings, and upon the making of partialor complete restitution to parties harmed bythe petitioner whose conduct led to thesuspension or disbarment. Provided further, ifthe petitioner has been suspended or disbarredfor 5 years or more, reinstatement may beconditioned, in the discretion of the judge orjudges before whom the matter is heard, uponthe furnishing of proof of competency andlearning in law, which proof may includecertification by the bar examiners of a state orother jurisdiction of the attorney's successfulcompletion of an examination for admissionto practice subsequent to the date ofsuspension or disbarment.

(6) Successive Petitions. No petition forreinstatement under this rule shall be filedwithin one year following an adversejudgment upon a petition for reinstatementfiled by or on behalf of the same person.(g) Attorneys Specially Admitted.

Whenever an attorney applies to be admitted or isadmitted to the court for purposes of a particularproceeding pursuant to RCFC 83.1(a) or (b)(5), the

attorney shall be deemed thereby to have conferreddisciplinary jurisdiction upon the court for anyalleged misconduct of that attorney arising in thecourse 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 proceedingshall be made by personal service or byregistered or certified mail addressed to therespondent-attorney at such attorney's lastknown address. If service by registered orcertified mail is ineffective, the court shallenter an order as appropriate to effect service.

(2) Service of any other papers ornotices required by this rule shall be deemedto have been made if such paper or notice isaddressed to the respondent-attorney at suchattorney's last known address or therespondent-attorney at the address indicated inthe most recent pleading or other documentfiled in the course of any proceeding.(i) Appointment of Counsel. The court may

appoint as counsel one or more members of the barof the court to investigate allegations ofmisconduct or to prosecute disciplinaryproceedings under this rule, provided, however,that the respondent-attorney may move todisqualify an attorney so appointed who is or hasbeen engaged as an adversary of therespondent-attorney in any matter. Counsel, onceappointed, may not resign unless permission to doso is given by the court.

(j) Payment of Fees and Costs. At theconclusion of any disciplinary investigation orprosecution under this rule, counsel may makeapplication to the court for an order awardingreasonable fees and reimbursing costs expended inthe course of such disciplinary investigation orprosecution. Any such order shall be submitted tothe clerk who shall pay the amount requiredthereunder from the funds collected pursuant toRCFC 83.1(b)(4).

(k) Duties of the Clerk.(1) Upon being informed that an attorney

admitted to practice before the court has beenconvicted of any crime, the clerk shalldetermine whether the clerk of the convictingcourt has forwarded a certificate of suchconviction to the court. If a certificate has not

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been so forwarded, the clerk shall promptlyobtain a certificate and file it with the court.

(2) Upon being informed that an attorneyadmitted to practice before the court has beensubjected to discipline by another court, theclerk shall determine whether a certified copyof the disciplinary judgment or order has beenfiled with the court, and, if not, the clerk shallpromptly obtain a certified copy of thedisciplinary judgment or order and file it withthe court.

(3) Whenever it appears that any persondisbarred or suspended or censured ordisbarred on consent by the court is admittedto practice law in any other jurisdiction orbefore any other court, the clerk shall, within10 days of that disbarment, suspension,censure, or disbarment on consent, transmit tothe disciplinary authority in such otherjurisdiction, or for such other court, a certifiedcopy of the order of disbarment, suspension,censure, or disbarment on consent, as well asthe last known office and residence addressesof the defendant or respondent-attorney.

(4) The clerk shall notify the NationalDiscipline Data Bank operated by theAmerican Bar Association of any orderimposing public discipline upon any attorneyadmitted to practice before the court.

(5) The clerk shall utilize a portion ofthe fee for admission required by RCFC77.1(c) to defray the payment of fees andcosts under subdivision (i) of this rule and anyother costs incurred by the administration ofthis rule.(l) Jurisdiction. Nothing contained in this

rule shall be construed to deny to the court suchpowers as are necessary for the court to maintaincontrol over proceedings conducted before it, suchas proceedings for contempt, issuance of publicreprimands, or imposition of fines of not more than$1,000.00.



Former RCFC 83.2 has been renumbered asRCFC 7.1. New RCFC 83.2 formerly appeared in

these rules as Appendix F. The incorporation offormer Appendix F into the main body of thecourt’s rules reflects a more logical placement ofits subject matter in the organizational structure ofthe court’s rules.

Rule 83.3 Legal Assistance by Law Students(a) Appearance. Subject to the provisions of

this rule, an eligible law student may enter anappearance in this court on behalf of any partyprovided the party on whose behalf the studentappears has consented thereto in writing and a“supervising attorney,” as defined in this rule, hasalso indicated approval of that appearance inwriting. In each case, the written consent andapproval shall be filed with the clerk.

(b) Activities. (1) Appearance on Briefs and Other

Written Pleadings; Participation in OralArgument and Other Activities. A lawstudent who has entered an appearance in acase pursuant to subdivision (a) may:

(A) appear on the brief(s) and otherwritten pleadings, provided thesupervising attorney has read, approved,and co-signed the brief(s);

(B) participate in all proceedingsordered by a judge or special masterprovided the supervising attorney ispresent at such proceedings; and

(C) engage in all other activities onbehalf of the client in all ways that alicensed attorney may, subject to thegeneral direction of the supervisingattorney. However, a student may makeno binding commitments on behalf of aclient absent prior approval of both theclient and the supervising attorney. Inany matter in which testimony is taken,including depositions, the student mustbe accompanied by the supervisingattorney. Documents or papers filed withthe court must be read, approved, and co-signed by the supervising attorney.(2) Limitations on Activities. The court

retains the authority to establish exceptions tothe activities in paragraph (1), and also tolimit a student’s participation in anyindividual case.

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(c) Eligibility. In order to be eligible to makean appearance pursuant to this rule, the law studentmust:

(1) be a law student in good standing,enrolled in a law school approved by theAmerican Bar Association;

(2) have completed legal studiesamounting to at least two semesters, or theequivalent if the school is on some basis otherthan a semester basis;

(3) have knowledge of the Rules of theUnited States Court of Federal Claims, theFederal Rules of Evidence, and the AmericanBar Association Model Rules of ProfessionalConduct;

(4) be enrolled for credit in a clinicalprogram at an accredited law school thatmaintains malpractice insurance for itsactivities and conducts its activities under thedirection of a faculty member of such lawschool;

(5) be certified by the dean of the lawschool as being of good character andsufficient legal ability, and as beingadequately trained, in accordance withparagraphs (1)–(4) above, to fulfill theresponsibilities of a legal intern to both theclient and the court. Such certification mustbe filed with the clerk and may be withdrawnat any time by the dean upon written notice tothe clerk;

(6) be certified by the chief judge topractice pursuant to this rule. Thiscertification may be withdrawn at any time bythe chief judge or, in a given case, by thejudge or special master before whom the lawstudent has entered an appearance, withoutnotice of hearing and without any showing ofcause; and

(7) neither ask for nor receive any fee orcompensation of any kind from the client onwhose behalf service is rendered. However,this rule shall not prevent a lawyer, legal aidbureau, law school, or the government frompaying compensation to the eligible lawstudent, nor shall it prevent any of them frommaking such charges for its services as mayotherwise be proper, nor shall it prevent anyclinical program from receiving otherwise

proper fees and expenses under RCFC54(d)(2). (d) Supervising Attorneys. A supervising

attorney referred to in this rule shall be deemed theattorney of record pursuant to RCFC 83.1(c) andmust:

(1) be a member in good standing of thebar of this court;

(2) be an attorney whose service as asupervising attorney for the clinical programis approved by the dean of the law school inwhich the law student is enrolled;

(3) be certified by this court as a studentsupervisor;

(4) assist and counsel the student inactivities allowed under this rule and reviewsuch activities with the student, all to theextent appropriate under the circumstances,for the proper practical training of the studentand the protection of the client;

(5) assist the student in his or herpreparation of the case to the extent thesupervising attorney considers necessary andbe available for consultation with representedclients;

(6) be present with the student in anyproceedings before a judge or special master;

(7) co-sign all pleadings and otherdocuments filed with the court;

(8) be responsible to supplement oral orwritten work of the student as necessary toensure proper representation of the client;

(9) assume full professionalresponsibility for the student’s guidance inany work undertaken and for the quality of thestudent’s work; and

(10) agree to notify the dean of theappropriate law school of any alleged failureon the part of the student to abide by the letterand spirit of this rule.



RCFC 83.3 replaces former General OrderNo. 35, adopted on September 3, 1993. The onlychanges are stylistic or correct cross-references.

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Rule 83.4 Advisory Council(a) Membership. The United States Court of

Federal Claims Advisory Council is established toadvise the court on matters pertaining to theadministration of the court and its relationship tothe bar and the public. The Council shall consist ofno fewer than 20 members of the bar of the courtand shall include representatives of all of thecourt’s practice areas. Members shall serve three-year terms. The chief judge shall fill anyvacancies. The chief judge shall designate one ormore of the judges as a liaison member betweenthe court and the Council.

(b) Organization. The Council shall meet atsuch times and places as agreed upon by themembers. All members of the Council, includingthe chief judge and the court’s liaison member[s],may attend meetings and participate in discussions.The chief judge shall designate a chairperson. Thecouncil members may designate other officers andcommittees and take all other steps appropriate tothe conduct of the council’s business. Eachmember, except the liaison member[s], shall beentitled to vote on matters before the Council. Thechief judge shall provide facilities at the court toaccommodate meetings of the Council.

(c) Function. The Council may consider anymatters its members deem relevant to the operationof the court. The Council may transmit itsrecommendations to the court informally orformally by letter to the chief judge. The Councilshall promptly consider and make arecommendation on any matter referred to it by thecourt. The court may consider anyrecommendation of the Council and take suchaction as it deems appropriate.



New RCFC 83.4 replaces General OrderNo. 7, which established the Advisory Council onApril 5,1983. In addition to minor stylistic andformatting changes, the new rule has increased thenumber of members allowed on the Council andmakes the chief judge responsible for designatingthe chairperson.

Rule 84. FormsForms referenced in these rules are set forth in

the Appendix of Forms.



RCFC 84 parallels in content its FRCPcounterpart.

Rule 85. TitleThese rules may be known and cited as the

Rules of the United States Court of Federal Claims.



RCFC 85 has been changed to reflect thechange in the court’s name.

Rule 86. Effective DateThese rules as revised became effective on

May 1, 2002. Those revisions and subsequentamendments to these rules are applicable to allproceedings pending at the time of adoption orthereafter filed, except to the extent that in theopinion of the court their application in a particularaction pending when the revisions or amendmentstake effect would not be feasible or would workinjustice, in which event the former procedureapplies.



RCFC 86 reflects the effective date of themost recent revision to the court’s rules. Inaddition, the rule adopts the practice of the FRCPto presume application of rule changes to pendingcases.

Future revisions to these rules will be postedon the court’s website at www.uscfc.uscourts.gov.

2006 AmendmentThe second sentence of RCFC 86 has been

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rewritten to clarify the rule’s essential purpose:that amendments to the court’s rules apply to allpending proceedings unless the application of suchamendments would not be feasible or would workinjustice.

APPENDIX ACASE MANAGEMENT PROCEDURE

I. PURPOSE1. These case management procedures are

intended to promote cooperation among counsel,assist in the early identification of issues, minimizethe cost and delay of litigation, and enhance thepotential for settlement. (As used in this appendix,“counsel” shall be construed to includeunrepresented parties.)

2. Uniformity of practice within the court alsois an important goal of these procedures. For thepurpose of promoting the efficient administrationof justice, a judge may modify these procedures asappropriate, or the parties may suggestmodification of these procedures to meet the needsof a particular case.

II. EARLY MEETING OF COUNSEL3. Subsequent to the filing of defendant’s

answer or, if applicable, a reply to a counterclaim,and, in any event, within sufficient time to permitthe parties to file a Joint Preliminary Status Reportin accordance with paragraph 4, below, plaintiff'scounsel shall communicate with defense counsel,and counsel shall confer:

(a) to initiate preparation of the JointPreliminary Status Report pursuant toparagraphs 4–6;

(b) to identify each party's factual andlegal contentions;

(c) to make or arrange for the disclosuresrequired by RCFC 26(a)(1);

(d) to discuss any issues relating topreserving discoverable information, and todevelop a proposed discovery plan thatindicates the parties’ views and proposalsconcerning:

(1) what changes should be made inthe timing, form, or requirement for

disclosures under Rule 26(a), includinga statement as to when disclosures underRule 26(a)(1) were made or will bemade;

(2) the subjects on which discoverymay be needed, when discovery shouldbe completed, and whether discoveryshould be conducted in phases or belimited to or focused upon particularissues;

(3) any issues relating to disclosureor discovery of electronically storedinformation, including the form or formsin which it should be produced;

(4) any issues relating to claims ofprivilege or of protection as trial-preparation material, including—if theparties agree on a procedure to assertsuch claims after production—whetherto ask the court to include theiragreement in an order;

(5) what changes should be made inthe limitations on discovery imposedunder these rules and what otherlimitations should be imposed; and

(6) any other orders that should beentered by the court under Rule 26(c) orunder Rule 16(b) and (c). (e) to discuss the expected means of

resolving the dispute, i.e., whether by trial ordispositive motion; and

(f) to discuss settlement of the action,including use of alternative dispute resolution.See Appendix H.

Participating counsel shall be counsel of recordand such other attorneys as necessary so thatparticipating counsel for each party areknowledgeable about the case, the identity ofwitnesses, and the location of documents.

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III. JOINT PRELIMINARY STATUSREPORT

4. No later than 49 days after defendant’sanswer or plaintiff’s reply to a counterclaim isserved, the parties shall file with the clerk a JointPreliminary Status Report, signed by both parties,setting forth answers to the following questions(separate views may be set forth on any point onwhich the parties cannot agree):

(a) Does the court have jurisdiction overthe action?

(b) Should the case be consolidated withany other case and, if so, why?

(c) Should trial of liability and damagesbe bifurcated and, if so, why?

(d) Should further proceedings in thecase be deferred pending consideration ofanother case before this court or any othertribunal and, if so, why?

(e) In cases other than tax refund actions,will a remand or suspension be sought and, ifso, why and for how long?

(f) Will additional parties be joined? Ifso, the parties shall provide a statementdescribing such parties, their relationship tothe case, the efforts to effect joinder, and theschedule proposed to effect joinder.

(g) Does either party intend to file amotion pursuant to RCFC 12(b), 12(c), or 56and, if so, what is the schedule for theintended filing?

(h) What are the relevant factual andlegal issues?

(i) What is the likelihood of settlement?Is a l ternat ive dispute resolutioncontemplated?

(j) Do the parties anticipate proceedingto trial? Does either party, or do the partiesjointly, request expedited trial scheduling and,if so, why? A request for expedited trialscheduling is generally appropriate when theparties anticipate that discovery, if any, can becompleted within a 90-day period, the casecan be tried within 3 days, no dispositivemotion is anticipated, and a bench ruling issought. The requested place of trial shall bestated. Before such a request is made, the

parties shall confer specifically on thissubject.

(k) Are there special issues regardingelectronic case management needs?

(l) Is there other information of whichthe court should be aware at this time?5. If discovery is required, the Joint

Preliminary Status Report shall set forth aproposed discovery plan, including proposeddeadlines. The parties shall propose a deadline forfact discovery, for the disclosure of any experts’reports, and for depositions or other discovery ofexperts. See RCFC 26(a)(2) concerning disclosureof experts and discovery planning.

6. Unless otherwise ordered, the JointPreliminary Status Report shall be deferredindefinitely if on or before the date the JointPreliminary Status Report is due a dispositivemotion addressing all issues is filed.

IV. PRELIMINARY SCHEDULING CONFERENCE AND SCHEDULING

ORDER7. Preliminary Scheduling Conference.

After the filing of the Joint Preliminary StatusReport, the judge will ordinarily conduct thepreliminary scheduling conference contemplatedby RCFC 16(b) to acquaint the court with theissues in the case, to discuss any special problemsthat may exist, and to establish a schedule forfurther proceedings. In the interest of justice andjudicial economy, a preliminary schedulingconference will not be held if, in the court’sassessment, further discussion of the matterspresented in the Joint Preliminary Status Reportwould not be useful.

8. Scheduling Order. After the preliminaryscheduling conference or, if none is held, after thefiling of the Joint Preliminary Status Report, thejudge shall promptly enter the scheduling ordercalled for by RCFC 16(b).

V. DISCOVERY9. Interrogatories, Requests for Admission,

Responses. A party shall number interrogatoriesand requests for admission sequentially withoutrepeating the numbers it has used in any prior set

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of interrogatories or requests for admission. Bycounsel's signature to the answers and pursuant toRCFC 11, counsel for the responding party shallcertify that counsel has made a diligent effort toprovide answers to all portions of interrogatories orrequests for admission to which it does notspecifically object.

10. Discovery Motions. A motion to compelor to protect from discovery shall contain astatement that the movant has in good faithconferred or attempted to confer to resolve thematters in dispute.

VI. POST-DISCOVERY PROCEEDINGS11. Post-Discovery Conference. Upon

completion of all discovery (including discovery ofany experts), the court shall hold a post-discoveryconference to determine how the case will proceed.The attorneys appearing at the post-discoveryconference shall be the attorneys who are expectedto 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 thateach 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 analternative method of dispute resolution.

12. Scheduling Order. See generally RCFC16 and 56. Promptly after the post-discoveryconference, the judge shall enter a schedulingorder to address further proceedings. For casesthat will proceed by summary judgment inaccordance with RCFC 56, the order shall establisha schedule for the filing of summary judgmentmotions and briefs. For cases to be resolved bytrial, the order shall set (1) the time and place oftrial, (2) the time and place of the final pretrialconference, and (3) the date by which thememoranda and disclosures called for byparagraphs 14–18 are due.

13. Meeting of Counsel. For cases to beresolved by trial, counsel for the parties shall meetno later than 63 days before the pretrial conferenceand accomplish the following:

(a) Exhibits. Exchange a list of allexhibits (including summaries, see Fed. R.Evid.1006) to be used at trial for case-in-chief

or rebuttal purposes, except those to be usedexclusively for impeachment. Each exhibitlisted shall be identified by an exhibit numberand description. Unless previouslyexchanged, counsel for the parties shallexchange a copy of each exhibit listed. In thecase of exhibits to be offered as summariesunder Fed. R. Evid. 1006, the offering partyshall provide opposing counsel with astatement with respect to each summaryexhibit describing the source(s) for the itemsor figures listed (e.g., ledgers, journals,payrolls, invoices, checks, time cards, etc.),the location(s) of the source(s), a time whenthe source(s) may be examined or audited bythe opposing party, the name and address ofthe person(s) who prepared each summaryand who will be made available to theopposing party during any examination oraudit of the source material to provideinformation, and explanations necessary forverification of the information in thesummary. Failure to list an exhibit shallresult in exclusion of the exhibit at trialabsent agreement of the parties to the contraryor a showing of a compelling reason for thefailure. See also RCFC 26(a)(1), (2).

(b) Witnesses. Exchange a list ofnames, addresses, and telephone numbers ofwitnesses, including expert witnesses, whomay be called at trial for case-in-chief orrebuttal purposes, except those to be usedexclusively for impeachment. Failure of aparty to list a witness shall result in theexclusion of the witness’s testimony at trialabsent agreement of the parties to the contraryor a showing of a compelling reason for thefailure. Any witness whose identity has notbeen previously disclosed shall be subject todiscovery. As to each witness, the party shallindicate the specific topics to be addressed inthe expected testimony.

(c) Conference. (1) Disclose to opposing counsel

the intention to file a motion for leave tofile a transcript of deposition forintroduction at trial.

(2) Resolve, if possible, anyobjections to the admission of testimony

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(including deposition testimony) orexhibits.

(3) Disclose to opposing counsel allcontentions as to applicable facts andlaw, unless previously disclosed.

(4) Engage in good-faith, diligentefforts to stipulate and agree to factsabout which the parties know, or havereason to know, there can be no disputefor the purpose of simplifying the issuesat trial.

(5) Consider agreement tosubmitting the case to the court forresolution (including any factualdisputes) on the basis of a documentaryrecord submitted by the parties. See alsoRCFC 43(e).

(6) Exhaust all possibilities ofsettlement. (d) Certification. Within 7 days after

the meeting, counsel shall file a JointCertification verifying that they met andaccomplished all matters required by thisparagraph. 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 ofContentions of Fact and Law. Thememorandum shall contain the following:

(1) a full but concise statement ofthe facts plaintiff expects to prove and adiscussion of plaintiff’s position withrespect to the facts on which defendant isexpected to rely;

(2) a statement of the issues of factand law to be resolved by the court. Theissues should be set forth in sufficientdetail to enable the court to resolve thecase in its entirety by addressing each ofthe issues listed;

(3) a discussion of the legalprinciples plaintiff contends areapplicable, as well as plaintiff’s responseto defendant’s anticipated legal position.Any objection to a witness or exhibitlisted under paragraph 13 shall be made

in the Memorandum of Contentions ofFact and Law or in a separate motionfiled on the same date;

(4) if plaintiff believes thatbifurcation of the issues for trial isappropriate, the memorandum shallcontain a request therefor, together witha statement of reasons. (b) Defendant’s Memorandum. No

later than 21 days before the pretrialconference, defendant shall file its responsivememorandum in the same form and content asplaintiff's.

(c) Responses. The parties shallcooperate in the exchanges specified inparagraph 13. Consequently, any responses tomatters expected to be raised by the opposingparty shall be included in each party'sMemorandum of Contentions of Fact andLaw. However, if anything new orunexpected is discovered, it may be addressedin a brief response which must be filed undercover of a motion for leave immediately uponlearning of it.

(d) Proposed Findings of Fact andConclusions of Law. The judge may, in lieuof the Memoranda of Contentions of Fact andLaw, order the filing of Proposed Findings ofFact and Conclusions of Law, including, atthe judge’s direction, annotations to theexhibits or witnesses on which the party willrely to prove the findings. 15. Witness List.

(a) Each party shall file, together withthe Memorandum of Contentions of Fact andLaw, a separate statement setting forth a listof witnesses to be called at trial for case-in-chief or rebuttal purposes, except those to beused exclusively for impeachment. Thewitness list shall separately identify thosewhom the party expects to present and thosewhom the party may call if the need arises.As to each witness, the party shall indicate thespecific topics to be addressed in the expectedtestimony and the time needed for directexamination.

(b) Any party intending to presentsubstantive evidence by way of depositiontestimony, other than as provided by Fed. R.

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Evid. 801(d), shall serve and file a separatemotion for leave to file the transcript of suchtestimony. The motion shall show cause whythe deposition testimony should be admittedand identify specifically the portions of thetranscript(s) the party intends to use at trial.See RCFC 32(a)(2) and (3). If the motion isgranted, only those identified portions of thetranscript may be filed. 16. Exhibit List. Each party shall file,

together with the Memorandum of Contentions ofFact and Law, a separate statement setting forth alist of exhibits it expects to offer at trial for case-in-chief or rebuttal purposes (including summariesto be offered pursuant to Fed. R. Evid. 1006), otherthan those to be used exclusively for impeachment.The exhibit list shall separately identify thoseexhibits that the party expects to offer and thosethat the party may offer if the need arises.

17. Stipulations. The parties shall file, eitherbefore or after the pretrial conference, a stipulationsetting forth all factual matters as to which theyagree.

VII. OTHER MATTERS18. Joint Exhibits. Prior to the final pretrial

conference, the parties shall review the exhibit listsfiled with the court and consolidate as manyexhibits as possible into a set of joint exhibits foruse at trial. All joint exhibits shall be identified ina joint exhibit list that identifies each exhibit by ajoint exhibit number and description.

19. Post-Trial Briefing. The judge mayorder the filing of post-trial briefs, which mayinclude, at the judge’s direction, either a statementof facts or proposed findings of fact, together withcitations to the record. Post-trial briefing is not amatter of right.


Appendix A represents the court’s standardpretrial order. The case management procedurescontained in Appendix A reflect those proceduresthat are considered, in the collective experience ofthe court and the members of its bar, to be mostbeneficial in securing the prompt and expeditiousresolution of claims and disputes. Some important

changes have been introduced. Chief among theseare procedures calling for a preliminary schedulingconference to be set following the filing of theJoint Preliminary Status Report, and a post-discovery conference following the completion ofdiscovery. The expectation reflected in theseconference procedures is that early and ongoinginvolvement of the court during the pretrialdevelopment of a case can contribute both to aprompt identification of the issues and to anarrowing of the scope of the dispute.

The promulgation of Appendix A as asynthesis of the views of the bench and the bar isintended to encourage standardization in pretrialpractice procedures. Appendix A recognizes,however, that the pretrial procedures to befollowed in any particular case ultimately dependupon the needs of that case. Hence, Appendix Apermits modification of its procedures, either at ajudge’s initiative or at the parties’ suggestion,when such modification will promote the efficientadministration of justice.

2005 AmendmentSubparagraph (d) has been added to

paragraph 13 (Meeting of Counsel) to provide thecourt with timely confirmation that counsel haveexchanged exhibit and witness lists and haveconferred regarding: (i) intentions to seekintroduction of deposition transcripts; (ii)resolution of objections to the admission oftestimony or exhibits; (iii) disclosure of applicablefact and law contentions; (iv) good-faith efforts tostipulate facts and to simplify trial; (v) agreementfor submission on the basis of a documentaryrecord; and (vi) exhaustion of settlement efforts.In addition, paragraph 17 (Stipulations) has beenamended to emphasize the importance ofstipulations in the pretrial process.

2007 AmendmentParagraph 3, describing requirements relating

to the early meeting of counsel, has been amendedto include the requirements added by theDecember 1, 2006, amendment to the essentiallycomparable provision set forth in FRCP 26(f)(“Conference of Parties; Planning for Discovery”).

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APPENDIX BVACCINE RULES OF THE UNITED STATES COURT

OF FEDERAL CLAIMS

I. SCOPE OF RULES; COMMENCEMENTOF PROCEEDINGS

Rule 1. Scope of RulesThese rules govern all proceedings before the

United States Court of Federal Claims pursuant tothe National Childhood Vaccine Injury Act, asamended, 42 U.S.C. §§ 300aa-1 to -34 (VaccineAct). These rules govern both the proceedingsbefore the Office of Special Masters, as well asany subsequent proceedings before a judge of theCourt of Federal Claims. These rules are to becited as the Vaccine Rules. In all matters notspecifically addressed by the Vaccine Rules, thespecial master or the court may regulate theapplicable practice, consistent with these rules andwith the purpose of the Vaccine Act, to decidecases promptly and efficiently. In proceedingsbefore the Office of Special Masters, the RCFCapply only to the extent referenced in the VaccineRules. In proceedings before a judge, the RCFCwill apply except to the extent that such rules areinconsistent with the Vaccine Rules.

(As revised and reissued May 1, 2002. See RulesCommittee Notes, infra.)

Rule 2. Commencement of Proceedings(a) Petition. A proceeding for compensation

under the Vaccine Act shall be commenced by thefiling of a petition, accompanied by the documentsrequired under 42 U.S.C. § 300aa-11(c) andsubdivision (e) of this rule, in the United StatesCourt of Federal Claims. Petitioner shall forwardan original and two copies of the petition, by mailor other delivery, to

ClerkUnited States Court of Federal Claims717 Madison Place, NWWashington, DC 20005

(b) Filing Fee. The petition shall beaccompanied by a filing fee. A copy of theapplicable schedule of fees is posted on the court’swebsite at www.uscfc.uscourts.gov. The current

schedule of fees may also be obtained by callingthe clerk’s office.

(c) Service Upon Respondent.(1) Petitioner shall serve one copy of the

petition and accompanying documents uponthe Secretary of Health and Human Services,by first class or certified mail, c/o Director,Division of Vaccine Injury Compensation,Healthcare Systems Bureau, ParklawnBuilding, Room 11C-26, 5600 Fishers Lane,Rockville, MD 20857.

(2) The clerk shall serve one copy of thepetition on the Attorney General.(d) Content of the Petition.

(1) The petition shall set forth a shortand plain statement of the grounds for anaward of compensation. The petition shall setforth to whom, when, and where the vaccinein question was administered, and furthershall describe specifically the alleged injury.If an injury within the applicable VaccineInjury Table is claimed, the particular TableInjury shall be set forth. (For informationabout the Vaccine Injury Tables and relateda d m i n i s t r a t i v e c h a n g e s , s e ewww.uscfc.uscourts.gov/OSMPage.htm,“Guidelines for Practice Under the NationalVaccine Injury Compensation Program,”Attachment 8.) The petition shall also containa specific demand for relief to whichpetitioner asserts entitlement or a statementthat such demand will be deferred pursuant to 42 U.S.C. § 300aa-11(e).

(2) Only one petition may be filed withrespect to each administration of a vaccine.(e) Documents Required With the Petition.

(1) As required by 42 U.S.C. § 300aa-11(c), every petition shall be accompanied bythe following:

(A) medical records and detailedaffidavit(s) supporting all elements ofthe allegations made in the petition. Ifpetitioner’s claim does not rely on

http://www.uscfc.uscourts.gov.

http://www.uscfc.uscourts.gov/OSMPage.htm

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medical records alone, but is based inany part on the observations or testimonyof any persons, the substance of eachperson’s proposed testimony in the formof an affidavit executed by the affiantmust accompany the petition;

(B) all available physician andhospital records relating to (i) thevaccination itself; (ii) the injury or death,including, if applicable, any autopsyreports or death certificate; (iii) any post-vaccination treatment of the injuredperson, including all in-patient and out-patient records, provider notes, testresults, and medication records; and, (iv)if the vaccinee was younger than fiveyears when vaccinated, the mother’spregnancy and delivery records and theinfant’s lifetime records, includingphysicians’ and nurses’ notes, testresults, and all well-baby visit records, aswell as growth charts, until the date ofvaccination; and

(C) if any records required by therules are not submitted, an affidavitdetailing the efforts made to obtain suchrecords and the reasons for theirunavailability.(2) If filed on behalf of a deceased

person, or if filed by someone other than theinjured person or a parent of an injured minor,the petition shall also be accompanied bydocuments establishing the authority to filethe petition in a representative capacity or as ta tement expla ining when suchdocumentation will be available.

(3) All documents accompanying thepetition shall be assembled into one or morebound volumes or three-ring notebooks. Eachbound volume or notebook must contain thecaption of the case and a table of contents,and all pages of all documents shall benumbered consecutively.

(As revised and reissued May 1, 2002; as amendedSeptember 15, 2003, August 2, 2005. See RulesCommittee Notes, infra.)

II. PROCEEDINGS BEFORE THE

SPECIAL MASTERRule 3. Role of the Special Master—Generally

(a) Assignment. Once a petition has beenfiled by the clerk, the case shall be assigned by thechief special master to a special master to conductproceedings in accordance with the Vaccine Rules.All proceedings prior to the issuance of the specialmaster’s decision are to be conducted exclusivelyby the special master.

(b) Duties. The special master shall beresponsible for conducting all proceedings,including requiring such evidence as may beappropriate, in order to prepare a decision,including findings of fact and conclusions of law,determining whether an award of compensationshould be made under the Vaccine Act and theamount of any such award. The special mastershall determine the nature of the proceedings withthe goal of making the proceedings expeditious,flexible, and less adversarial, while at the sametime affording each party a full and fairopportunity to present its case and creating arecord sufficient to allow review of the specialmaster’s decision.

(c) Absence; Reassignment. In the absenceof the special master to whom a case is assigned,the chief special master may act on behalf of theassigned special master, or designate anotherspecial master to act. When necessary for theefficient administration of justice, the chief specialmaster may reassign a case to another specialmaster.


Rule 4. Respondent’s Review of Petitioner’sRecords; Early Status Conference;Respondent’s Report

(a) Respondent’s Review of Completenessof Records. Within 30 days after the filing of apetition, respondent shall review the accompanyingrecords and other documents to determine whetherall information necessary to enable respondent toevaluate the merits of the claim has been filed withthe petition. If respondent concludes that relevanthealth records or other required documents aremissing, respondent’s counsel shall immediatelynotify petitioner’s counsel regarding the perceived

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omissions. If the parties disagree about thecompleteness of the records filed or the relevanceof requested records, either party may request thespecial master to resolve the matter.

(b) Early Status Conference. The specialmaster may convene an early status conferencewithin 45 days after the filing of the petition.Following an early status conference, the specialmaster shall issue an order scheduling furtherproceedings.

(c) Respondent’s Report. Within 90 daysafter the filing of the petition, or in accordancewith the schedule set by the special master afterpetitioner has satisfied all required documentarysubmissions, respondent shall file a report thatshall set forth a full and complete statement ofrespondent’s position as to why an award should orshould not be granted. The report shall containrespondent’s medical analysis of petitioner’sclaims. It shall also present any legal argumentsthat respondent may have in opposition to thepetition. General denials are not sufficient.

(As revised and reissued May 1, 2002; as amendedAugust 2, 2005. See Rules Committee Notes,infra.)

Rule 5. Informal Review and TentativeFindings and Conclusions

The special master shall schedule aconference to be held within 30 days after thefiling of respondent’s report pursuant to VaccineRule 4(c). At this conference, after affording theparties an opportunity to address each other’spositions, the special master will review thematerials submitted, evaluate the respectivepositions, and orally present tentative findings andconclusions. At the conclusion of this conference,the special master may issue a scheduling orderoutlining the necessary proceedings for resolvingthe issues presented in the case.


Rule 6. Status ConferencesThe special master shall conduct periodic

conferences in order to expedite the processing ofthe case. The conferences will be informal in

nature and ordinarily will be conducted bytelephone conference call. Either party mayrequest a status conference at any time. At suchconferences, counsel for both parties will have theopportunity to propose procedures by which toprocess the case in the least adversarial and mostefficient way possible.


Rule 7. DiscoveryThere shall be no discovery as a matter of

right.(a) Informal Discovery Preferred. The

informal and cooperative exchange of informationis the ordinary and preferred practice.

(b) Formal Discovery. If a party considersthat informal discovery is not sufficient, that partymay seek to utilize the discovery proceduresprovided by RCFC 26–37 by filing a motionindicating the discovery sought and stating withparticularity the reasons therefor, including anexplanation as to why informal techniques have notbeen sufficient. Such a motion may also be madeorally at a status conference.

(c) Subpoena. When necessary, the specialmaster, upon request of a party, may approve theissuance of a subpoena. In so doing, theprocedures of RCFC 45 shall apply. See RCFCAppendix of Forms, Form 7A.


Rule 8. Taking of Evidence and Argument;Decision

(a) General. The special master, based on thespecific circumstances of each case, shalldetermine the format for taking evidence andhearing argument. The particular format for eachcase will be ordered after consultation with theparties.

(b) Hearing. When necessary, the specialmaster may conduct an evidentiary hearing. Thespecial master will determine the format for sucha hearing. The special master may permit directexamination of a witness or may permit or requirethat the direct testimony be submitted in written

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form. The special master may question a witnessand, on request, permit questioning by opposingcounsel. Upon order by the special master, theclerk or counsel may issue a subpoena requiringthe attendance of a witness at such hearing. Atranscript of the hearing shall be prepared inconformity with RCFC 80.1 and RCFC Appendixof Forms (Forms 3A and 3B).

(c) Evidence. In receiving evidence, thespecial master will not be bound by common lawor statutory rules of evidence. The special masterwill consider all relevant and reliable evidence,governed by principles of fundamental fairness toboth parties. Evidence may be taken in the form ofdocuments, affidavits, or oral testimony which maybe given in person or via telephone,videoconference, or videotape. Sworn writtentestimony may be submitted in lieu of oraltestimony.

(d) Decision Without Evidentiary Hearing.The special master may decide a case on the basisof written filings without an evidentiary hearing.In addition, the special master may decide a caseon summary judgment, adopting procedures setforth in RCFC 56 modified to the needs of thecase.

(e) Argument. Argument may be received bytelephone conference call, at a hearing, or inwritten submissions. The special master mayestablish requirements for such filings, e.g.,contents or page limitations, as appropriate.

(f) Waiver of Argument. Any fact orargument not raised specifically in the recordbefore the special master shall be consideredwaived and cannot be raised by either party inproceedings on review of a special master’sdecision. This rule shall not apply to legalarguments raised by the party that stands in therole of the appellee on review.


Rule 9. Suspension of Proceedings(a) General. On the motion of a party and for

good cause shown, the special master may suspendproceedings on the petition. The special mastershall grant one such suspension for 30 days on themotion of either party. Further motions by either

party for suspension may be granted, totaling notmore than 150 additional days, in the specialmaster’s discretion.

(b) Effect. Such periods of suspension shallbe excluded for purposes of the time limitations of42 U.S.C. § 300aa-12(d)(3) and Vaccine Rules 4(c)and 10.

(As revised and reissued May 1, 2002; as amendedJune 20, 2006. See Rules Committee Notes, infra.)

Rule 10. Special Master’s Decision(a) General. A special master’s decision

pursuant to 42 U.S.C. § 300aa-12(d)(3)(A)determines whether or not an award ofcompensation is made and, if so, the amountthereof. A special master’s decision shall concludethe proceedings on a petition, except for anyancillary proceedings pursuant to Vaccine Rules12(b) or 13. A special master’s decision shall befiled within 240 days after the date the petition wasfiled, exclusive of periods of suspension pursuantto Vaccine Rule 9 and any remand periods. If aspecial master’s decision is not filed within suchtime, the special master shall file the noticerequired by 42 U.S.C. § 300aa-12(g)(1). Within 30days after the date of filing of the special master’snotice, the petitioner may file the notice specifiedin 42 U.S.C. § 300aa-21(b) to continue orwithdraw the petition. If the petitioner elects towithdraw the petition, the special master shall, forthe court’s administrative purposes, issue an orderconcluding the proceedings, which order, uponentry, shall be deemed a judgment for purposes of42 U.S.C. § 300aa-15(e)(1).

(b) Certain Retrospective Cases.[Abrogated, effective August 2, 2005.]

(c) Reconsideration. Within 21 days afterthe issuance of the special master’s decision, ifneither a judgment nor a motion for review of thespecial master’s decision has yet been filed, eitherparty may file a motion for reconsideration of thespecial master’s decision. The special master mayseek the non-moving party’s response to such amotion, determining the method of and timeschedule for any such response. The specialmaster shall have discretion to grant or deny suchmotion, in the interest of justice.

(1) If Granted. If the special master

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elects to grant the motion for reconsideration,the special master shall do so by filing anorder withdrawing the decision in question.The withdrawn decision then becomes voidfor all purposes, and the special master mustsubsequently enter a superseding decision.An order withdrawing the decision may befiled only if neither a judgment nor a motionfor review has been filed. The special mastershall not file a susperseding decision reachinga result different from the original decisionwithout affording the non-moving party anopportunity to respond to the moving party’sarguments.

(2) If Not Granted. The filing of amotion for reconsideration will not toll therunning of the 30-day period for filing amotion for review of the special master’sdecision. If the special master denies amotion for reconsideration, or during anyperiod in which the special master has not yetacted upon such a motion, the 30-day periodfor the filing of a motion for review of thespecial master’s decision shall continue to runand either party may file a motion for review.


III. JUDGMENT AND FURTHERPROCEEDINGS

Rule 11. Judgment(a) In the Absence of a Motion for Review.

In the absence of the filing of a motion for reviewpursuant to Vaccine Rule 23 within 30 days afterthe filing of the special master’s decision pursuantto Vaccine Rule 10 or order of dismissal pursuantto Vaccine Rule 21(b), or if prior to the expirationof such period each party files a notice stating thatit will not seek such review, the clerk shallforthwith enter judgment in accordance with thespecial master’s decision or order.

(b) Stipulation for Judgment. Anystipulation for a money judgment shall be signedby authorized representatives of the Secretary ofHealth and Human Services and the AttorneyGeneral.


Rule 12. Election(a) General. When no motion for review of

a decision pursuant to Vaccine Rule 10 or order ofdismissal pursuant to Vaccine Rule 21(b) is filedby either party pursuant to Vaccine Rule 23,petitioner shall, within 90 days after the entry ofjudgment, file with the clerk an election in writingeither (1) to accept the judgment or (2) to file acivil action for damages for the alleged injury ordeath. Upon failure to file an election within thetime prescribed, petitioner shall be deemed to havefiled an election to accept the judgment.

(b) Declining Award. An election to declinean award of compensation may be accompanied bya motion for the limited compensation provided by42 U.S.C. § 300aa-15(f)(2). Such motion shall beforwarded to the special master for a decisionthereon. The decision of the special master on themotion shall be considered a separate “decision”for purposes of Vaccine Rules 11, 18, and 23. Ifsuch a motion has not been filed by the time theelection is filed, petitioner will be deemed to havewaived that limited compensation.


Rule 13. Attorneys’ Fees and CostsAny request for attorneys’ fees and costs

pursuant to 42 U.S.C. § 300aa-15(e) shall be filedno later than 180 days after the entry of judgmentor the filing of an order concluding proceedingsunder Vaccine Rule 10(a) or 29. The clerk shallforward the fee request to the special master towhom the case was assigned for consideration anddecision. The decision of the special master on thefee request shall be considered a separate decisionfor purposes of Vaccine Rules 11, 18, and 23.


IV. GENERAL PROVISIONS

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Rule 14. Attorneys(a) Attorneys Eligible to Practice. Only

attorneys who are members of the bar of the UnitedStates Court of Federal Claims and who complywith the Vaccine Rules may enter an appearance,file pleadings, and practice before the Office ofSpecial Masters and the court. The clerk’s officewill not accept for filing any pleading, motion, orother paper that is not signed by the attorney ofrecord in the case or by a member of this barauthorized to sign the attorney of record’s name onthe attorney of record’s behalf. For admission tothe bar of the court, RCFC 83.1(b) shall apply.

(b) Attorneys of Record. There shall beonly one attorney of record for a party in any caseat any one time, and such attorney of record shallbe an individual, not a firm, who has been admittedto practice before the Court of Federal Claims.Any other attorneys assisting the attorney of recordshall be designated as of counsel. The attorney ofrecord shall include on all filings the attorney’sname, address, and telephone number. Theattorney of record shall promptly file with the clerka notice of any change in address.

(c) Change of Attorneys. RCFC 83.1(c)shall apply.

(d) Unrepresented Party. An individual mayrepresent himself or herself or a member of theindividual’s immediate family as a party. Anyother party, however, must be represented by anattorney who is admitted to practice before theCourt of Federal Claims. The term “counsel” or“attorney” in the Vaccine Rules shall includeunrepresented parties.


Rule 15. Third PartiesNo person may intervene in a vaccine injury

compensation proceeding. However, the specialmaster shall afford all interested persons anopportunity to submit relevant written information.Such information may be submitted within 60 daysafter publication of notice of the petition in theFederal Register, or later with leave of the specialmaster.

(As revised and reissued May 1, 2002. See Rules

Committee Notes, infra.)

Rule 16. Caption of All FilingsThe petition and all other filings shall be

captioned with the appropriate title (the petitionshould leave blank the spaces for the specialmaster’s name and the case number; all filingsthereafter must include the case number and thename of the assigned special master). SeeAppendix of Forms, Form 7.


Rule 17. Filing and Service of Papers After thePetition

(a) Filing With the Clerk Defined. Allpleadings and other papers required to be filedwith the clerk by the Vaccine Rules or by order ofthe special master or the court shall be forwardedto the clerk of the court at the address noted inVaccine Rule 2. A document is filed whenactually received and marked filed by the clerk, notwhen mailed. All matters shall be brought to theattention of the special master or the court throughformal filings with the clerk rather than bycorrespondence.

(b) Service. A copy of every document filedwith the clerk shall be served on opposing counsel,or the opposing unrepresented party if noappearance of attorney has been entered. Acertificate of service showing the date of serviceshall be appended to the original and copiesthereof. See RCFC 5.

(c) Date. Each filing shall bear on thesignature page the date on which it is signed.

(d) Number of Copies. The parties shall filean original and two copies of each paper to be filedwith the clerk, except that for filings of 50 pages ormore, 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 madeavailable only to the special master, judge, andparties, with the exception of certain court-

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produced documents as set forth in subdivision (b)of this rule. A transcript prepared pursuant toVaccine Rule 8(b) shall be considered a filing forpurposes of this rule.

(b) Decisions of Special Masters andJudges. When a decision of a special master or ofthe court is filed with the clerk, each party will beafforded 14 days in which to object to the publicdisclosure of any information furnished by thatparty

(1) that is trade secret or commercial orfinancial in substance and is privileged orconfidential; or

(2) that includes medical files or similarfiles, the disclosure of which would constitutea clearly unwarranted invasion of privacy.

If the party furnishing information objects todisclosure, that information shall be redacted priorto public disclosure of the decision. In the absenceof an objection, the entire decision will be madepublic.


Rule 19. Time(a) Computation. In computing any period

of time prescribed or allowed by these rules, byorder of court, or by any applicable statute, the dayof the act, event, or default from which thedesignated period of time begins to run shall not beincluded. The last day of the period so computedshall be included unless it is a Saturday, Sunday, orlegal holiday or, when the act to be done is thefiling of a paper in court, a day on which weatheror other conditions have made the clerk’s officeinaccessible, in which event the period runs untilthe end of the next day which is not one of theaforementioned days. When the period of timeprescribed or allowed is less than 11 days,intermediate Saturdays, Sundays, and legalholidays shall be excluded in the computation. Forlegal holidays, see RCFC 6(a).

(b) Enlargement. Motions for enlargementof time may be granted for good cause shown. Amotion shall set forth the reason or reasons uponwhich the motion is based. Such motion mustcontain a representation that the moving party hasdiscussed the motion with opposing counsel and a

statement whether an opposition will be filed or, ifopposing counsel cannot be consulted, anexplanation of the efforts made to do so.

(c) Additional Time After Service By Mail.Whenever a party has the right or is required to dosome act within a prescribed period after theservice of a paper, and the service is made by mail,3 calendar days shall be added to the prescribedperiod, unless the special master or the court ordersotherwise.


Rule 20. Motions(a) Motions. A motion, unless made orally,

shall be made in writing, shall state withparticularity the grounds therefor, shall set forththe relief or order sought, and shall be filed withthe clerk. Any motion, objection, or response maybe accompanied by a memorandum, and, ifnecessary, by supporting affidavits. Any motionmay be accompanied by a proposed order.

(b) Responses and Replies. Unlessotherwise provided by the special master or thecourt, any response or objection to a writtenmotion shall be filed within 14 days after serviceof the motion, and any reply shall be filed within 7days after service of the response or objection.

(c) Oral Argument. Oral argument on amotion may be scheduled. A party desiring oralargument on a motion shall so request in themotion or response.


Rule 21. Dismissal of Petitions(a) Voluntary Dismissal; Effect Thereof. A

petition may be dismissed without order of thespecial master or the court (1) by petitioner’s filingof a notice of dismissal at any time before serviceof respondent’s report, or (2) by the filing of astipulation of dismissal signed by all parties whohave appeared in the proceeding. Unless otherwisestated in the notice of dismissal or stipulation, thedismissal is without prejudice, except that a noticeof dismissal may, in the discretion of the specialmaster or the court, be deemed to operate as an

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adjudication upon the merits when filed by apetitioner who has previously dismissed the sameclaim. A petition dismissed under this subsectionwill not result in a judgment pursuant to VaccineRule 11 for purposes of 42 U.S.C. § 300aa-21(a).For the court’s administrative purposes, the specialmaster will instead issue an order concludingproceedings.

(b) Involuntary Dismissal; Effect Thereof.For failure of the petitioner to prosecute or complywith the Vaccine Rules or any order, the specialmaster or the court may dismiss a petition or anyclaim therein. A petition dismissed under thissubsection will result in a judgment pursuant toVaccine Rule 11 for purposes of 42 U.S.C.§ 300aa-21(a).

(As revised and reissued May 1, 2002; as amendedAugust 2, 2005, June 20, 2006. See RulesCommittee Notes, infra.)

V. REVIEW OF DECISIONS OF SPECIALMASTERS

Rule 22. General [Abrogated, effectiveJanuary 2, 2001; abrogation published as part ofrevisions dated May 1, 2002.]

Rule 23. Motion for Review and ObjectionsTo obtain review of a special master’s

decision, within 30 days after the date on which thedecision is filed, a party must file with the clerk amotion for review of the decision. No extensionsof time under this rule will be permitted, and thefailure of a party to timely file such a motion shallconstitute a waiver of the right to obtain review.


Rule 24. Memorandum of ObjectionsA motion for review must be accompanied by

a memorandum of numbered objections to thedecision. This memorandum must fully andspecifically state and support each objection to thedecision. The memorandum shall cite specificallyto the record created by the special master, e.g., tospecific page numbers of the transcript, exhibits,etc., and shall also fully set forth any legal

argument the party desires to present to thereviewing judge. The memorandum shall belimited to 20 pages and must conform to theprovisions of RCFC 5.3.


Rule 25. Response(a) If a motion for review is filed, the other

party may file a response thereto within 30 daysafter the filing of the motion. No extensions oftime under this rule will be permitted, and thefailure of a party to timely file such a responseshall constitute a waiver of the right to respond.The response shall be in memorandum form andshall fully respond to each numbered objection.The memorandum shall cite specifically to therecord created by the special master, e.g., tospecific page numbers of the transcript, exhibits,etc., and shall also fully set forth any legalargument the party desires to present to thereviewing judge. The memorandum shall belimited to 20 pages and must conform to theprovisions of RCFC 5.3.

(b) If both parties file motions for review,each party may file a response to the other party’smotion.


Rule 26. AssignmentWhen a motion for review is filed with the

clerk, the case will be assigned to a Court ofFederal Claims judge to conduct the review. Theassignment shall be made pursuant to RCFC 40.1.


Rule 27. ReviewThe 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’sdecision;

(b) set aside any finding of fact or conclusionof law found to be arbitrary, capricious, an abuse

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of discretion, or otherwise not in accordance withlaw, and issue the judge’s own decision; or

(c) remand the case to the special master forfurther action in accordance with the judge’sdirection.


Rule 28. Time for ReviewThe assigned judge shall complete the review

within 120 days after the last date for the filing ofa response under Vaccine Rule 25, excluding anydays the case is before a special master on remand.If the judge remands the case to the special master,the total period of any remand shall not exceed 90days.


Rule 28A. Remand ProcedureIf the assigned judge remands a case to the

special master, the special master, after completingthe remand assignment, shall file a Decision onRemand resolving the case, unless the order ofremand directs otherwise. The clerk shallpromptly notify the judge who remanded the caseof the filing of this decision on remand. Unlessspecified otherwise in the judge’s order remandingthe case, this decision shall be considered aseparate decision for purposes of Vaccine Rules11, 18, and 23, i.e., judgment automatically will beentered in conformance with the special master’sdecision unless a new motion for review is filedpursuant to Vaccine Rule 23. If a party seeksreview of such decision, the clerk shall assign thecase to the judge who remanded the case.


Rule 29. Withdrawal of PetitionIf the judge fails to direct entry of judgment

within 420 days after the date on which a petitionwas filed, excluding any periods of remand orsuspension pursuant to Vaccine Rule 9, the judgeshall file the notice required by 42 U.S.C. § 300aa-12(g)(2). Within 30 days after the date of filing of

the judge’s notice, the petitioner may file thenotice specified in 42 U.S.C. § 300aa-21(b) tocontinue or withdraw the petition. If the petitionerelects to withdraw the petition, the judge shall, forthe court’s administrative purposes, issue an orderconcluding the proceedings, which order, uponentry, shall be deemed a judgment for purposes of42 U.S.C. § 300aa-15(e)(1).


Rule 30. Judgment(a) After Review. After review and decision

by the assigned judge, the clerk shall forthwithenter judgment in accordance with the judge’sdecision.

(b) Stipulation for Judgment. Anystipulation for a money judgment shall be signedby authorized representatives of the Secretary ofHealth and Human Services and the AttorneyGeneral.


Rule 31. ReconsiderationIf a party files a motion for reconsideration of

the assigned judge’s decision within 10 days afterentry of judgment, RCFC 59 shall apply.


Rule 32. Notice of AppealReview of a Court of Federal Claims

judgment by the United States Court of Appealsfor the Federal Circuit may be obtained by filingwith the clerk of the Federal Circuit a notice ofappeal (petition for review) within 60 days afterthe date of the entry of judgment.


Rule 33. ElectionWithin 90 days after the entry of judgment,

the petitioner shall make an election as described

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in Vaccine Rule 12. However, if an appeal is takento the United States Court of Appeals for theFederal Circuit pursuant to Vaccine Rule 32, the90-day period for the election shall not run fromthe original date of judgment but rather from thedate of the appellate court’s mandate or anysubsequent judgment of the Court of FederalClaims on remand, whichever occurs later.


Rule 34. Attorneys’ Fees and CostsAny request for attorneys’ fees and costs, in a

case where judgment followed review by a judge,will be processed pursuant to Vaccine Rule 13.


Rule 35. Availability of Filings [Abrogated,effective January 2, 2001; abrogation published aspart of revisions dated May 1, 2002.]

VI. RELIEF FROM JUDGMENTRule 36. Relief from Judgment

(a) General. Following the entry of judgmentby the Court of Federal Claims, if a party files amotion pursuant to RCFC 59 or 60, the clerk of thecourt shall refer such motion as follows: If thepetition has previously been before a judge of thecourt upon review pursuant to Vaccine Rule 23,then the motion shall be referred to that judge. Ifthe petition has not previously been before a judgeof the court upon review pursuant to VaccineRule 23, then the motion shall be referred to theOffice of Special Masters.

(b) Review of a Special Master’s Ruling.When a motion pursuant to RCFC 59 or 60 isreferred to a special master pursuant to subdivision(a) of this rule, the special master shall file awritten ruling upon such motion. That ruling shallbecome the final ruling of the court on the motion,unless a party files a motion for review of thatruling, accompanied by a memorandum ofobjections to the ruling, within 30 days after thedate 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 and setaside such ruling only if it is found to be arbitrary,capricious, an abuse of discretion, or otherwise notin accordance with law. The non-moving partymay file a memorandum response within 30 daysafter the filing of the review motion. The motionand response of each party shall be limited to 20pages and must conform to the provisions of RCFC5.3.

(c) If Judgment is Altered. If the originaljudgment is modified pursuant to RCFC 59 or 60or otherwise, and the petitioner is to receive anyaward for damages calculated with respect to the“date of judgment,” such damages shall becalculated based upon the date of the originaljudgment, unless the ruling of the special master orcourt directs otherwise.



Appendix B sets forth rules applicable toproceedings involving claims for compensationunder the National Childhood Vaccine Injury Act,42 U.S.C. §§ 300aa-1 to -34. These rulesoriginally became effective on January 25, 1989,and were revised on March 15, 1991, and May 1,2002. The text of these rules as originallypromulgated may be found at 16 Cl. Ct. XXI–LXI(1989) and, as initially revised, at 22 Cl. Ct.CXLVIII–CLX (1991).

2003 AmendmentVaccine Rule 2(c)(1) has been amended to

require that service upon the respondent bedirected to the Director, Division of Vaccine InjuryCompensation, Office of Special Programs, HealthResources and Services Administration, in lieu ofthe Director, Bureau of Health Professionals.

2005 AmendmentsBoth stylistic and substantive changes have

been made to the Vaccine Rules. The substantivechanges are identified below.

Rule 2. Subdivision (b) previously listed theamount of the filing fee that was required toaccompany a petition. The listing of the fee

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amount has been eliminated in favor of referringpetitioners to the fee schedule posted on the court’swebsite. This change is administrative only and isintended to permit future changes in fee amount tobe implemented without the necessity forpublication of a corresponding change in rule.Subdivision (c)(1) has been amended to show thecurrent address for service upon respondent.

Rule 4. Subdivision (b), titled “Early StatusConference,” has been added to acknowledge theauthority of a special master, exercisable at thespecial master’s discretion, to convene an earlystatus conference as an aid in the identification andscheduling of further proceedings.

Rule 10. The text of subdivision (a) has beenamended to identify the alternative procedures apetitioner may elect to adopt—withdrawal of thepetition or continuance of proceedings—followingthe special master’s issuance of a notice under42 U.S.C. § 300aa-12(g)(1) advising that a decisionon the petition will not be entered within theprescribed statutory period (240 days, exclusive ofperiods of suspension and remand). Subdivision(a) further provides that in instances where thepetitioner elects to withdraw the petition in lieu ofcontinuing proceedings, the conclusion ofproceedings will be identified by the specialmaster’s issuance of an order so indicating.Finally, the subdivision specifies that upon entry ofthe special master’s order, such order shall bedeemed a judgment for purposes of 42 U.S.C.§ 300aa-15(e)(1). Subdivision (b), which dealtwith vaccines administered prior to October 1,1988, has been abrogated as being no longernecessary. Subdivis ion (c ) , t i t led“Reconsideration,” has been amended to indicatethat where the special master elects to grant amotion for reconsideration, the special master shallnot issue a superseding decision reaching adifferent result from the original decision withoutaffording the non-moving party an opportunity torespond to the arguments raised in the motion forreconsideration.

Rule 13. This rule has been amended torecognize that the right to seek recovery ofattorneys’ fees and costs under 42 U.S.C. § 300aa-15(e) extends not only to cases in which ajudgment has been entered but also to cases inwhich a petitioner exercises the statutory right to

withdraw a petition following the issuance of anorder concluding proceedings under Rule 10(a) or29.

Rule 21. Under the Vaccine Act, the courtenters judgment pursuant to a “decision of thespecial master,” i.e., a determination “with respectto whether compensation is to be provided underthe Program and the amount of suchcompensation.” 42 U.S.C. § 300aa-12(d)(3)(A). Aspecial master’s decision, in other words,contemplates an adjudication. With this in mind,subdivision (a) of this rule has been amended toclarify that where a petition is voluntarilydismissed without order of the special master orthe court (either by the filing of a notice ofdismissal before service of respondent’s report orpursuant to a stipulation of the parties) then, foradministrative purposes, the conclusion ofproceedings will be identified by an order of thespecial master rather than by a decision.Correspondingly, language has also been added tosubdivisions (b) and (c) to clarify that aninvoluntary dismissal operates as an adjudicationon the merits with respect to which a judgment willbe entered.

Rule 29. The opening sentence of this rulehas been amended to identify the proceduralrequirement that applies in cases where a judgefails to direct entry of judgment within 420 daysafter the date of filing of the petition (“the judgeshall file the notice required by 42 U.S.C. § 300aa-12(g)(2)”). Additionally, a final sentence has beenadded to clarify that where a petitioner elects towithdraw a petition following the receipt of thenotice required by 42 U.S.C. § 300aa-12(g)(2), theconclusion of proceedings will be identified by thejudge’s issuance of an order rather than by ajudgment. The same sentence further notes thatupon entry, such order shall be deemed a judgmentfor purposes of 42 U.S.C. § 300aa-15(e)(1).

2006 AmendmentRule 21. Former subdivision (b) (“Failure to

Prosecute or Participate”) has been stricken as itsprovisions were either redundant or unnecessary.The substance of the first and second sentences ofthat former subdivision is set forth in the text offormer subdivision (c) (“Involuntary Dismissal;Effect Thereof”), now renumbered as subdivision

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(b). The third sentence of former subdivision (b)was unnecessary; to obtain compensation, thestatute provides that a petitioner must supplyevidence establishing his or her entitlement tosame, regardless of whether the respondentparticipates. The renumbering of subdivision (c) isalso reflected in corresponding changes to the textof Vaccine Rules 11(a) and 12(a).

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APPENDIX CPROCEDURE IN PROCUREMENT PROTEST CASES

PURSUANT TO 28 U.S.C. § 1491(b)

I. INTRODUCTION1. This Appendix describes standard practices

in protest cases filed pursuant to 28 U.S.C.§ 1491(b) and supplements the Rules of the UnitedStates Court of Federal Claims, which areotherwise fully applicable to these cases.

II. REQUIREMENT FORPRE-FILING NOTIFICATION

2. In order to expedite proceedings, plaintiff’scounsel must (except in exceptional circumstancesto be described in moving papers) provide at least24-hour advance notice of filing a protest case to:

(a) the Department of Justice,Commercial Litigation Branch, CivilDivision;

(b) the Clerk, United States Court ofFederal Claims;

(c) the procuring agency’s contractingofficer by facsimile transmission only; and

(d) the apparently successfulbidder/offeror (in cases where there has beenan award and plaintiff has received notice ofthe identity of the awardee).

Such notice must be provided by e-mail or byfacsimile transmission during conventionalbusiness hours. (The contacts for the clerk of courtand the Department of Justice are posted on thecourt’s website—http://www.uscfc.uscourts.gov.)The pre-filing notice is intended to permit theDepartment of Justice to assign an attorney to thecase who can address relevant issues on a timelybasis and to permit the court to ensure theavailability of appropriate court resources. Failureto provide pre-filing notification will not precludethe filing of the case but is likely to delay theinitial processing of the case, including thescheduling of the initial status conference. Seeparagraph 8, below. Plaintiff’s counsel mustapprise the above entities of any material change inrespect to the timing of or the intent to file aprotest. Plaintiff is encouraged to provide earliernotice if possible as a courtesy to the court and togovernment counsel.

3. The pre-filing notice must include thefollowing information:

(a) the name of the procuring agency andthe number of the solicitation in the contestedprocurement;

(b) the name and telephone number ofthe contracting officer responsible for theprocurement;

(c) the name and telephone number ofthe principal agency attorney, if known, whorepresented the agency in any prior protest ofthe same procurement;

(d) whether plaintiff contemplatesrequesting temporary or preliminaryinjunctive relief pursuant to RCFC 65;

(e) whether plaintiff has discussed theneed for temporary or preliminary injunctiverelief with Department of Justice counsel andthe response, if any;

(f) whether the action was preceded bythe filing of a protest before the GovernmentAccountability Office (GAO) and if so, the“B-” number of the protest and whether adecision was issued; and

(g) whether plaintiff contemplates theneed for the court to enter a protective order.

III. FILING UNDER SEAL4. In the event plaintiff believes its complaint,

or any related material filed at the same time,contains confidential or proprietary informationand plaintiff seeks to protect that information frompublic scrutiny, plaintiff must file a motiontogether with the complaint for leave to file thecomplaint under seal. When a complaint or anyrelated material is filed with an accompanyingmotion for leave to file under seal, the complaint orrelated material will be treated as though filedunder seal while the motion is pending.

5. When filing documents under seal, a partymust follow the procedures described in RCFC5.4(d).

6. A complaint or any related material filed

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together with the complaint that is to be filed underseal must be marked or highlighted in such a waythat confidential or proprietary information isindicated and must be accompanied by a redactedversion of the pleading (i.e., a version that omitsconfidential or proprietary information), whichwill be available to the public. Failure to file aredacted copy may result in denial of the motionfor leave to file under seal.

7. To the extent the complaint or any relatedmaterial filed together with the complaint containsclassified information, the filing must conform tothe requirements of the classifying agency.

IV. INITIAL STATUS CONFERENCE8. The court will schedule an initial status

conference with the parties to address relevantissues including, but not limited to, the following:

(a) identification of interested parties;(b) admission of any successful offeror

as an intervenor;(c) any request for temporary or

preliminary injunctive relief (see paragraph15, below);

(d) the content of a protective order, ifrequested by one or more of the parties, andthe requirement for redacted copies;

(e) the content of and time for filing theadministrative record;

(f) whether it may be appropriate tosupplement the administrative record; and

(g) the nature of and schedule for furtherproceedings.

This initial status conference will be held as soonas practicable after the filing of the complaint.

V. INJUNCTIVE RELIEF9. The court’s practice is to expedite protest

cases to the extent practicable and to conducthearings on motions for preliminary injunctions atthe earliest practicable time. Accordingly, when aplaintiff seeks a preliminary injunction, it may notneed to request a temporary restraining order.

10. An application for a temporary restrainingorder and/or preliminary injunction must be filedtogether with the complaint with the clerk, unless

the complaint has been previously filed. Theapplication must be accompanied by affidavits,supporting memoranda, and any other documentsupon which plaintiff intends to rely. Theapplication also must be accompanied by astatement that plaintiff’s counsel has provided, byhand delivery, overnight mail, or electronic means,copies of the foregoing documents to theDepartment of Justice, Commercial LitigationBranch, 8th Floor, 1100 L St. NW, Washington,DC 20530.

11. If the name of the apparently successfulbidder/offeror is known (in cases where there hasbeen an award and plaintiff has received notice ofthe identity of the awardee), plaintiff must state inthe application that copies of the foregoingdocuments have been provided, by hand delivery,overnight mail, or electronic means, to theapparently successful bidder/offeror. If the nameof the awardee is unknown, plaintiff must so state.

12. The apparently successful bidder/offerormay enter a notice of appearance at any hearing onthe application for a temporary restrainingorder/preliminary injunction if it advises the courtof its intention to move to intervene pursuant toRCFC 24(a)(2) or has moved to intervene beforethe hearing.

13. The clerk will promptly inform the partiesof the judge to whom the case has been assignedand the time and place of any hearing.

14. Except in an emergency, the court will notconsider ex parte applications for a temporaryrestraining order.

15. In cases in which plaintiff seeks temporaryor preliminary injunctive relief, counsel must beprepared to discuss the following matters at theinitial status conference:

(a) whether and to what extent, absenttemporary or preliminary injunctive relief, thecourt’s ability to afford effective final relief islikely to be prejudiced;

(b) whether plaintiff has discussed anyrequest it has made for a temporaryrestraining order in advance with Departmentof Justice counsel and, if so, defendant’sresponse;

(c) whether the government will agree towithhold award or suspend performancepending a hearing on the motion for

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preliminary injunction;(d) whether the government will agree to

withhold award or suspend performancepending a final decision on the merits;

(e) an appropriate schedule forcompletion of the briefing on any motion fora preliminary injunction;

(f) the security requirements of RCFC65(c) (See Appendix of Forms, Forms11–13); and

(g) whether the hearing on thepreliminary injunction should be consolidatedwith a final hearing on the merits.

VI. PROTECTIVE ORDERS16. Preliminary Matters.(a) The principal vehicle relied upon by the

court to ensure protection of sensitive informationis the protective order. The protective orderdefines the procedures to be followed to identifyprotected information, to prepare redacted versionsof such information, and to dispose of protectedinformation at the conclusion of the case.

(b) Information a party identifies as protectedmay be disclosed only to the court and toindividuals who have been admitted to theprotective order.

(c) Once a protective order is issued by thecourt, individuals who seek access to protectedinformation must file an appropriate application. Ifadmitted to the protective order, an individualbecomes subject to the terms of the order. It is theresponsibility of those admitted to the protectiveorder to take the necessary steps to ensure that theinformation is protected, consistent with the termsof the protective order, while it is under theircontrol (including oversight of support personnelwho may have access to protected information).

(d) Court, procuring agency, and Departmentof Justice personnel are automatically admitted toprotective orders when issued and are subject totheir terms.

17. Issuance of a Protective Order.(a) Motions for protective orders must meet

the requirements of RCFC 10. The court mayissue a protective order at its discretion.

(b) A sample protective order is found at

Appendix of Forms, Form 8. The parties arecautioned that individual judges and the partiesthemselves may want to amend the sampleprotective order to meet the needs of a specificcase or their individual preferences. The specificprotective order issued in a case governs thetreatment of protected information in that case.

18. Application for Admission to theProtective Order.

(a) Each party seeking access to protectedinformation on behalf of an individual must filewith the court an appropriate “Application forAccess to Information Under Protective Order”(see Appendix of Forms, Forms 9 and 10). Theapplication may also be amended by the court inresponse to individual case needs.

(b) Objections to an application for accessmust be filed with the court within 2 days after aparty’s receipt of the application.

(c) In considering objections to an applicationfor access, the court will consider such factors asthe nature and sensitivity of the information atissue, the party’s need for access to the informationin order to effectively represent its position, theoverall number of applications received, and anyother concerns that may affect the risk ofinadvertent disclosure.

(d) If the court receives objections to anapplication, access will only be granted by courtorder.

19. Designation of Protected Informationand Preparation of Redacted Pleadings.

After a protective order is entered, thedesignation of protected information and thepreparation and filing of redacted documents willbe governed by the terms of the protective order.

20. Disposition of Material ContainingProtected Information.

The specific procedures to be followed indisposing of protected information at theconclusion of the case will be as described in theprotective order.

VII. THE CONTENT AND FILING OF THEADMINISTRATIVE RECORD

21. The United States will be required toidentify and provide (or make available forinspection) the administrative record in a protest

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case by the date(s) established at the initial statusconference. The filing of all or a part of theadministrative record must be accompanied by aNotice of Filing.

22. Early production of relevant coredocuments may expedite final resolution of thecase. The core documents relevant to a protestcase may include, as appropriate,

(a) the agency’s procurement request,purchase request, or statement ofrequirements;

(b) the agency’s source selection plan;(c) the bid abstract or prospectus of bid;(d) the Commerce Business Daily or

other public announcement of theprocurement;

(e) the solicitation, including anyinstructions to offerors, evaluation factors,solicitation amendments, and requests for bestand final offers;

(f) documents and information providedto bidders during any pre-bid or pre-proposalconference;

(g) the agency’s responses to anyquestions about or requests for clarification ofthe solicitation;

(h) the agency’s estimates of the cost ofperformance;

(i) correspondence between the agencyand the protester, awardee, or other interestedparties relating to the procurement;

(j) records of any discussions, meetings,or telephone conferences between the agencyand the protester, awardee, or other interestedparties relating to the procurement;

(k) records of the results of any bidopening or oral motion auction in which theprotester, awardee, or other interested partiesparticipated;

(l) the protester’s, awardee’s, or otherinterested parties’ offers, proposals, or otherresponses to the solicitation;

(m) the agency’s competitive rangedetermination, including supportingdocumentation;

(n) the agency’s evaluations of theprotester’s, awardee’s, or other interestedparties’ offers, proposals, or other responses

to the solicitation, including supportingdocumentation;

(o) the agency’s source selectiond e c i s i o n , i n c l u d i n g s u p p o r t i n gdocumentation;

(p) pre-award audits, if any, or surveysof the offerors;

(q) notification of contract award and theexecuted contract;

(r) documents relating to any pre- orpost-award debriefing;

(s) documents relating to any stay,suspension, or termination of award orperformance pending resolution of the bidprotest;

(t) justifications, approvals,determinations, and findings, if any, preparedfor the procurement by the agency pursuant tostatute or regulation; and

(u) the record of any previousadministrative or judicial proceedings relatingto the procurement, including the record ofany other protest of the procurement.23. Because a protest case cannot be

efficiently processed until production of theadministrative record, the court expects the UnitedStates to produce the core documents and theremainder of the administrative record as promptlyas circumstances will permit. (See RCFC 5.4(d)which is applicable to administrative records,unless waived by the court.) Materials thatotherwise qualify as part of the administrativerecord may not be excluded from the record merelybecause they are available in electronic form only.

24. Any additional documents within theadministrative record must be produced at suchtime as may be agreed to by the parties or orderedby the court.

VIII. ADMISSION OF COUNSEL25. In procurement protest cases in which

plaintiff’s counsel is not a member of the bar of thecourt and does not have sufficient time to gainadmission prior to the filing of the action, the clerkwill accept for filing any proper complaint andaccompanying pleadings under 28 U.S.C. §1491(b) from such counsel, conditioned uponcounsel’s prompt pursuit of admission to practice

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before the United States Court of Federal Claimspursuant to RCFC 83.1. Failure to pursue suchadmission within 30 days after the initiation of theaction may result in dismissal of the action andpossible referral for disciplinary action.


This appendix sets forth the proceduresapplicable to the court’s procurement protestjurisdiction. In the main, these procedures reflectthose that formerly appeared as General OrderNo. 38, issued on May 7, 1998. In addition,however, Appendix C now incorporates—inparagraphs 10 through 14—those provisions offormer RCFC 65(f) (titled “Procedures”) whichenumerated requirements particular to applicationsfor temporary restraining orders and/or motions forpreliminary injunction.

Papers and exhibits are often filed under sealin procurement protests. Procedures for unsealingare addressed at RCFC 77.3(d). The standards forgranting access to protected information areaddressed in decisions such as U.S. Steel Corp. v.United States, 730 F.2d 1465 (Fed. Cir. 1984), andMatsushita Elec. Indus. Co. v. United States, 929F.2d 1577 (Fed. Cir. 1991).

2005 AmendmentParagraphs 16(a) and 20 of this appendix

address the disposition of material containingprotected information after a case has beenconcluded. Both paragraphs contemplate that aprotective order entered in a case involvingprotected information will set out the obligationsof the parties in this regard. Form 8 in theAppendix of Forms, the sample protective ordersuggested for use in procurement protest cases, hasbeen modified to include a new paragraph 8 whichconcerns the court’s retention and disposition ofprotected materials filed by the parties. The newparagraph provides that the original version of theadministrative record and any other materials filedunder seal in such a case will be retained by thecourt pursuant to RCFC 77.3(d). Copies of suchmaterials filed with the court in addition to theoriginal version may be returned by the court to theparties for appropriate disposition. In a particularcase, the parties may propose to the court that other

provisions be substituted for this portion of themodel protective order.

2007 AmendmentParagraph 18(a) has been reworded and

paragraph 18(b) has been deleted as unnecessary.In addition, paragraph 18(e) has been amended toclarify that issuance of a court order grantingaccess to protected information is required only inthose cases where objections to the applicationhave been raised. This clarification confirms thepractice spelled out in the court’s sampleprotective order (Appendix of Forms, Form 8).Finally, minor changes (primarily grammatical)have been introduced throughout the Appendix.

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APPENDIX DPROCEDURE IN CONGRESSIONAL REFERENCE CASES

1. Purpose. The Federal CourtsImprovement Act of 1982 amended 28 U.S.C.§§1492 and 2509 to authorize either house ofCongress to refer bills to the chief judge of theUnited States Court of Federal Claims forinvestigation and report to the appropriate house.Procedures promulgated by the chief judgeapplicable to such congressional reference casesare specified herein. The RCFC, to the extentfeasible, are to be applied in congressionalreference cases.

2. Service of Notice. Upon referral of a billto the chief judge by either house of Congress, theclerk shall docket the reference and serve a notice,as provided in RCFC 5, on each person whosename and address is shown by the paperstransmitted and who appears to have an interest inthe subject matter of the reference. The notice shallset forth the filing of the reference and state thatthe person notified appears to have an interesttherein and that such person shall have 90 dayswithin which to file a complaint. The clerk shallforward a copy of each such notice to the AttorneyGeneral.

3. Complaint. Any person served with noticewho desires to assert a claim may do so by filing acomplaint in accordance with RCFC 5.3(d), 8, and9.

4. Failure of a Party to Appear. If nointerested person files a complaint within the timespecified in the notice served by the clerk, the casemay be reported upon the papers filed and uponsuch evidence, if any, as may be produced by theAttorney General.

5. Hearing Officer; Review Panel. Upon thefiling of a complaint, the chief judge will designateby order a judge of the court to serve as the hearingofficer and a panel of three judges to serve as thereviewing body. One of the review panel memberswill be designated by the chief judge as thepresiding officer of the panel. Each hearing officerand each review panel, acting by majority vote,shall have authority to perform any acts which maybe necessary or proper for the efficientperformance of their duties, including the power ofsubpoena and the power to administer oaths and

affirmations. Subpoenas requiring travel of morethan 100 miles to the place of trial must haveattached thereto an order of approval by thehearing officer. 6. Hearing Officer Report. The hearingofficer shall conduct such proceedings and utilizesuch Rules of the United States Court of FederalClaims as may be required to determine the facts,including facts relating to delay or laches, factsbearing upon the question of whether the bar of anystatute of limitation should be removed, or factsclaimed to excuse the claimant for not havingresorted to any established legal remedy. Thehearing officer shall find the facts specially. Thehearing officer shall append to the findings of factconclusions sufficient to inform Congress whetherthe demand is a legal or equitable claim or agratuity, and the amount, if any, legally orequitably due from the United States to theclaimant. The report shall be filed with the clerk,and served by the clerk on the parties.

7. Acceptance or Exceptions. Within 30days after service of the report, each party shall fileeither (a) a notice of intention to except to thereport or (b) a notice accepting the report.

8. Review Panel Consideration and Report.(a) The clerk shall transmit the findings and

conclusions of the hearing officer, together withthe record of the case, to the review panel.

(b) If either party files a notice of intention toexcept, the presiding officer shall establish byorder a schedule for the parties to file briefs onexceptions to the hearing officer’s findings andconclusions and any requests for oral argumentbefore the panel.

(c) If neither party files a notice of intention toexcept, the review panel shall nevertheless reviewthe report. If the review panel is considering amaterial modification of the findings orconclusions of the hearing officer, the presidingofficer by order shall so notify the parties and shallestablish a schedule for the parties to file briefs andany requests for oral argument before the panel.

(d) The hearing officer’s findings shall not beset aside unless they are found to be clearlyerroneous, and due regard shall be given to the

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hearing officer to judge the credibility of witnesses.The hearing officer’s conclusions shall not be setaside unless justice shall so require. No case shallbe returned to the hearing officer unless so orderedby the review panel.

(e) After conclusion of its review, includingany briefing and argument, the review panel, bymajority vote, shall adopt or modify the findingsand conclusions of the hearing officer and file itsreport with the clerk for service on the parties.

9. Rehearing. Within 10 days after serviceof the report of the review panel, any party may filea motion for rehearing to alter or amend the report.The motion shall state with particularity anycontention of law or fact which the movantbelieves has been overlooked or misapprehended,and shall contain arguments in support thereof.Oral argument in support of the motion shall not bepermitted. No response to a motion for rehearingis required but will be considered if filed within 10days after the date the motion for rehearing isserved. No time extension shall be allowed forfiling such a response. If the motion for rehearingis granted, the review panel shall take such furtheraction as in its discretion may be required by thecircumstances of the particular case. The chiefjudge will entertain no appeals or requests forreview of any rulings or actions by a hearingofficer or a review panel. 10. Transmittal to Congress. When allproceedings are concluded, the report of the reviewpanel shall be transmitted by the chief judge to theappropriate house of Congress.

11. Admission to Practice. Any attorneyrepresenting a claimant in a congressionalreference case may file and appear as attorney ofrecord in the proceeding if such attorney is amember of the bar of the United States Court ofFederal Claims or, if not, upon certification to theclerk that such attorney is a member in goodstanding of the bar of the highest court of any statein the Union or the District of Columbia. Anyclaimant, except a corporation, in a congressionalreference case may proceed pro se.

12. Filing Fees. Filing fees set forth on thecourt’s website at http://www.uscfc.uscourts.govare required in congressional reference cases.


2002 Revision Appendix D provides the procedures applicableto congressional reference cases. Revisionseffective May 1, 2002 include the deletion fromformer paragraph 3 of authority for the filing of a“preliminary complaint” (a change that reflects thecorresponding deletion of such authority from thecourt’s basic rules) and the deletion, asunnecessary, of former paragraph 6, titled“Captions.” Paragraph 8 (former paragraph 9) has beenreorganized into f ive subparagraphs.Subparagraph (c) clarifies the review panel’sresponsibility in the absence of exceptions to ahearing officer’s report and identifies theprocedures required where modification of such areport is being considered by the review panel.Subparagraph (d) sets out standards for reviewapplicable whether or not exceptions have beentaken, including language formerly appearing inparagraph 7. The restriction on the role of thechief judge in the appeal and review process hasbeen relocated to the end of paragraph 9.


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APPENDIX EELECTRONIC CASE FILING PROCEDURE

I. INTRODUCTION1. In General. This Appendix sets forth theprocedures governing electronic filings in theUnited States Court of Federal Claims. A CaseManagement/Electronic Case Files (CM/ECF)User Manual is available on the court’swebsite—http://www.uscfc.uscourts.gov. 2. Definitions. For purposes of this Appendix, thefollowing definitions apply:

(a) “ECF System” means the court’ssystem for electronic case filing;

(b) “ECF case” means any casedesignated by the court as anelectronic case in the ECF System;

(c) “Filing User” means a member of thecourt’s bar to whom the court hasissued a log-in and password to filedocuments electronically in the ECFSystem;

(d) “filing” means any document that isfiled electronically in the ECFSystem; and

(e) “court” means the assigned judge or,where appropriate, the assignedspecial master.

II. ELECTRONIC CASE DESIGNATION AND NOTICE

3. Scope.(a) Newly Filed Cases. All newly filed

cases will be designated ECF casesexcept for cases involving pro selitigants.

(b) Converted Cases. The court mayconvert a pending non-ECF case toan electronic case at any time.

4. Notice to Counsel. The clerk will notifycounsel that a case has been designated an ECFcase by filing a “Notice of Designation.” All ECFcases will be listed on the court’s website.

III. ACCESS TO ECF SYSTEM; RESPONSIBILITY OF FILING USERS;

EXEMPTION FROM USE

5. Eligibility. An attorney admitted to the bar ofthis court may register as a Filing User bycompleting the form provided by the clerk, a copyof which is available on the court’s website. Byregistering as a Filing User, an attorney consents toelectronic service of all filings.6. Log-in and Password.

(a) Notification. Once registered, aFiling User will be notified of his orher user log-in and password.

(b) Security. A Filing User must protectthe security of his or her passwordand immediately notify the clerk if itappears to have been compromised.

(c) Use. No Filing User or other personmay knowingly permit or cause aFiling User’s log-in and password tobe used by anyone other than anauthorized agent of the Filing User.Any Filing User or other person maybe subject to sanctions for failure tocomply with this provision.

7. Exemption From Filing Electronically. Byfiling an appropriate motion, an individual notregistered as a Filing User may, for good cause,seek to be exempted from filing documentselectronically in an ECF case.

IV. FILING REQUIREMENTS8. Filings.

(a) Initial Filings. The filing of initialpapers, including the complaint, andthe payment of the initial filing feemust be accomplished in thetraditional manner in accordancewith the court’s rules rather thanelectronically.

(b) Subsequent Filings. Once a casehas been designated an ECF case, allsubsequent filings must be madeelectronically, except as provided inthis Appendix or by leave of thecourt in exceptional circumstancesthat prevent a Filing User from filingelectronically.

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(c) Exhibits and Attachments. Unlessotherwise ordered by the court, whenfiling an exhibit or attachment, aFiling User: (i) must file the exhibit or

attachment electronically alongwith the main document underone entry number;

(ii) must include only thoseexcerpts of the referencedexhibit or attachment that aredirectly germane to the matterunder consideration by thecourt;

(iii) must clearly and prominentlyidentify the excerpted material;and

(iv) may seek leave to file additionalexcerpts or the completedocument.

9. Size Limitations. (a) In General. A single filing may be

divided into multiple Adobe PDFfiles.

(b) Number of Files. Counsel mustendeavor to minimize the totalnumber of Adobe PDF files thatconstitute a single filing, particularlywhen filing appendices andadministrative records.

(c) Size of Files. (i) Unless otherwise ordered by the

court, each Adobe PDF filemust not exceed the sizelimitations established by thecourt.

(ii) Current size limitations areposted on the court’s website ormay be obtained by calling theclerk’s office.

(d) Exceeding Size Limitations. Forfiles that exceed size limitations, theFiling User must seek appropriaterelief from the court, which may, forexample, authorize a filing in someother electronic format (e.g., a CD-ROM) or in paper form.

10. Courtesy Copies in Paper Form. Unless

otherwise ordered by the court, if a document,including exhibits and attachments, exceeds 50pages when printed, the Filing User must supplychambers with a courtesy copy of the document inpaper form in accordance with RCFC 5.4(c). Thecourt may order the parties to supply courtesycopies in paper form of any ECF filing. 11. Filing Under Seal. In all cases except casesfiled under the National Vaccine InjuryCompensation Program, a party:

(a) must seek leave of the court to filedocuments electronically under seal;and

(b) may not attach the documents to befiled under seal to the motion forleave but rather may file thedocuments electronically only afterthe motion is granted.

V. FILING PROCEDURES 12. Notice of Filing; Service.

(a) Notifying Filing Users. At the timea document is filed, the ECF Systemautomatically generates a “Notice ofElectronic Filing” and automaticallye-mails the notice to all caseparticipants who are Filing Users.

(b) Notifying Individuals Other ThanFiling Users. The clerk will serve the“Notice of Electronic Filing” (but notthe underlying filing) on caseparticipants who are not Filing Usersby e-mail, hand delivery, facsimile,or first-class postage-prepaid mail.

(c) Service. The transmission of the“Notice of Electronic Filing”satisfies the service requirement ofRCFC 5 and the proof of servicerequirement of RCFC 5.1.

13. Effect of Filing and Transmission of Noticeof Filing. A filing by a party under thisAppendix, together with the transmission of the“Notice of Electronic Filing,” constitutes a filingunder RCFC 5 and an entry on the docket kept bythe clerk under RCFC 58 and 79. 14. Official Court Record. The official courtrecord is the electronic recording of the documentas stored by the court and the filing party is bound

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by the document as filed. 15. Date of Filing. Except in the case of adocument first filed in paper form andsubsequently converted to an ECF filing, adocument filed in an ECF case is deemed filed onthe date stated in the “Notice of Electronic Filing.”16. Timeliness of Filing. Unless otherwiseordered by the court, a filing under this Appendixmust be submitted before midnight local time inWashington, DC, to be considered timely filed onthat date.17. Date Stamp. Each filing must contain at thetop of the first page a banner stating that it was“Electronically Filed on [date].”

VI. SIGNATURES AND RELATEDMATTERS

18. Signature Defined. A Filing User’s log-in andpassword will serve as his or her signature on afiling for all purposes, including those underRCFC 11.19. Signature Requirements.

(a) Electronic Signature. Filings mustinclude a signature block, incompliance with RCFC 11(a), withthe name of the Filing User underwhose log-in and password thedocument is submitted along with an“s/” typed in the space where thesignature would otherwise appear.

(b) Written Signature. A Filing Usermay also satisfy the signaturerequirement by scanning a documentcontaining his or her writtensignature.

(c) Noncompliance. A filing that doesnot comply with this provision willbe deemed in violation of RCFC 11and may be stricken from the record.

20. Signatures of Multiple Parties. Documentsrequiring signatures of more than one party may befiled electronically:

(a) by submitting a scanned documentcontaining all necessary writtensignatures;

(b) by representing the consent of theother parties on the document; or

(c) in any other manner approved by thecourt.

VII. COURT ORDERS, JUDGMENTS,AND APPEALS

21. Filings by the Court. Any order, opinion,judgment, or other proceeding of the court in anECF case will be filed in accordance with thisAppendix. 22. Effect of Filing. A filing by the court underthis Appendix:

(a) is an entry on the docket kept by theclerk under RCFC 58 and 79; and

(b) has the same force and effect as apaper copy entered on the docket inthe traditional manner.

23. Notice of Filing; Service. (a) Notifying the Parties. Notice of a

filing by the court will beaccomplished by delivering to theparties a “Notice of ElectronicFiling” in the manner prescribed inparagraph 12(a) or (b).

(b) Service. The transmission of the“Notice of Electronic Filing”satisfies the service requirement ofRCFC 77(d).

24. Court-Ordered Deadlines. If an order oropinion specifies a due date for the filing of adocument, that date will control over any otherfiling deadline listed on the docket for thatdocument.25. Notice of Appeal. A notice of appeal to theUnited States Court of Appeals for the FederalCircuit must be accomplished in the traditionalmanner in accordance with the court’s rules ratherthan electronically.

VIII. PRIVACY26. Personal Information.

(a) In General. Filing Users are advisedthat any personal information in anECF filing that is not otherwiseprotected will be made available overthe Internet via Web Pacer.

(b) Including Personal Information in

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a Filing. In compliance with the E-GovernmentAct of 2002, Filing Users should not includepersonal information in any ECF filing unless suchinclusion is necessary and relevant to the filing.

(c) Excluding or Redacting PersonalInformation in a Filing. Thefollowing personal identifiers shouldbe excluded, or redacted wheninclusion is necessary, from all ECFfilings, unless otherwise ordered bythe court:(i) Social Security numbers—if

an individual’s Social Securitynumber must be included in afiling, only the last four digits ofthe number should be used;

(ii) names of minor children—ifthe name of a minor child mustbe mentioned in a filing, onlythe initials of the child shouldbe used;

(iii) dates of birth—if anindividual’s date of birth mustbe included in a filing, only theyear should be used; and

(iv) financial account numbers—ifa financial account number isrelevant to a filing, only the lastfour digits of the number shouldbe used.

(d) Using Caution When IncludingOther Sensitive Information.Filing Users should exercise cautionwhen filing documents containing: (i) a personal identifying number,

such as a driver’s licensenumber;

(ii) medical records; (iii) employment history;(iv) individual financial informa-

tion; or (v) proprietary or trade secret

information.27. Deciding When to Include, Redact, orExclude Personal Information. Counsel arestrongly urged to discuss with all clients the use ofpersonal information so that an informed decisionabout including, redacting, or excluding such

information may be made. 28. Responsibility to Protect PersonalInformation. It is the sole responsibility ofcounsel and the parties to protect any personalinformation included in a filing; the clerk’s officewill not review filings to ensure that personalinformation has been adequately protected.

IX. RETENTION, TECHNICALFAILURE, AND PUBLIC ACCESS

29. Retaining in Paper Form DocumentsRequiring More Than One Signature. Adocument requiring signatures of more than oneparty (e.g., an affidavit or a joint status report)must be maintained in paper form by the FilingUser until three years after all periods for appealexpire. The court may request the Filing User toprovide the original document for review.30. Technical Failure of the ECF System.

(a) Relief by Motion. If a filing isdeemed untimely as the result of atechnical failure of the ECF System,the Filing User may seek appropriaterelief from the court.

(b) Deeming the Clerk’s OfficeInaccessible. If the ECF System isinaccessible for any significantperiod of time, the clerk will deemthe clerk’s office inaccessible underRCFC 6.

31. Reviewing ECF Filings. The public mayreview ECF filings in the clerk’s office. A personmay also access filings in the ECF System on thecourt’s website or by obtaining a PACER log-inand password (see http://pacer.psc.uscourts.gov).


Appendix E replaces former General OrderNo. 42A (“Interim Procedures for Electronic CaseFiling”), issued on November 4, 2004, andestablishes electronic case filing as a mandatoryprocedure applicable to all new cases filed in thecourt except for those cases involving pro selitigants. For supplemental procedures governingelectronic filings in cases under the NationalVaccine Injury Compensation Program, counselshall refer to the Office of Special Masters General

http://pacer.psc.uscourts.gov).

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Orders, which can be found on the court’s website.Former Appendix E (“Procedure in Carrier

Cases”) has been redesignated in these rules asAppendix I.

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APPENDIX FPROCEDURE IN TAX PARTNERSHIP CASES

Rule 1. General(a) Applicability. This Appendix sets

forth the special provisions that apply to actionsfor readjustment of partnership items underSection 6226 of the Internal Revenue Code (Code)and actions for adjustment of partnership itemsunder Code Section 6228. Except as otherwiseprovided in this Appendix, the RCFC, to theextent pertinent, are applicable to such partnershipactions.

(b) Definitions. As used in thisAppendix,

(1) the term "partnership" means apartnership as defined in Code Section6231(a)(1);

(2) a "partnership action" is either an"action for readjustment of partnershipitems" under Code Section 6226 or anaction for “adjustment with respect topartnership items" under Code Section6228;

(3) the term "partnership item"means any item described in CodeSection 6231(a)(3);

(4) the term "tax matters partner"means the person who is the tax matterspartner under Code Section 6231(a)(7) orappointed tax matters partner by the courtunder Rule 9 of this Appendix, and whounder this Appendix is responsible forkeeping each partner fully informed ofthe partnership action (see Code Sections6223(g) and 6230(f));

(5) a "notice of final partnershipadministrative adjustment" is the noticedescribed in Code Section 6223(a)(2);

(6) the term "administrativeadjustment request" means a request foran administrative adjustment ofpartnership items filed by the tax matterspartner on behalf of the partnership underCode Section 6227(c);

(7) the term "partner" means aperson who was a partner as defined inCode Section 6231(a)(2) at any timeduring any partnership taxable year at

issue in a partnership action; (8) the term "notice partner" means

a person who is a notice partner underCode Section 6231(a)(8);

(9) the term "5-percent group"means a 5-percent group as defined inCode Section 6231(a)(11);

(10) the term "deposit" means thedeposit required by Code Section6226(e)(1); and

(11) the term "Notice ofAssignment" means the notice mailed tothe parties by the clerk of the court afterthe filing of a complaint that advises theparties of the name of the judge to whomthe proceeding is assigned.(c) Jurisdictional Requirements. The

court does not have jurisdiction over a partnershipaction under this Appendix unless the followingconditions are satisfied:

(1) Actions for Readjustment ofPartnership Items.

(A) The Commissioner ofInternal Revenue (Commissioner)has issued a notice of finalpa r t ne r s h i p a dmi n i s t r a t i veadjustment (see Code Sections6226(a), (b)).

(B) A complaint forreadjustment of partnership items isfiled with the court by the taxmatters partner within the periodspecified in Code Section 6226(a),or by a notice partner (or 5 percentgroup) subject to the conditions andwithin the period specified in CodeSection 6226(b).

(C) The partner or partnersfiling the complaint make a depositas required by Code Section6226(e).(2) Actions for Adjustment of

Partnership Items. (A) The Commissioner has not

allowed all or some of theadjustments requested in an

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administrative adjustmentrequest (see Code Section6228(a)). (B) A complaint for adjustment

of partnership items is filed with thecourt by the tax matters partnersubject to the conditions and withinthe period specified in CodeSections 6228(a)(2) and (3).

(d) Form and Style of Papers. Allpapers filed in a partnership action shall beprepared in the form and style set forth in RCFC5.2 and l0(a), except that the caption shall statethe name of the partnership and the full name andsurname of any partner filing the complaint andshall indicate whether such partner is the taxmatters partner, as for example, "ABCPartnership, 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 acomplaint with the court. See RCFC 3, relating tocommencement of case; RCFC 5.2 and 10,relating to form of pleadings; and RCFC 5.3(d),relating to number of copies to be filed.

(b) Contents of Complaint. Eachcomplaint shall be titled either "Complaint forReadjustment of Partnership Items under CodeSection 6226" or "Complaint for Adjustment ofPartnership Items under Code Section 6228."Each such complaint shall contain the informationdescribed in subdivision (c) below and theallegations described in subdivision (d) or (e)below.

(c) All Complaints. All complaints inpartnership actions shall contain

(1) the name and address ofthe complainant;

(2) the name, employeridentification number, andprincipal place of business of thepartnership and of each partnerfiling the complaint at the timethe complaint is filed; and

(3) the city and state of the

office of the Internal RevenueService with which thepartnership's return for the periodin controversy was filed.

A claim for reasonable litigation costs shall not beincluded in the complaint in a partnership action.For the requirements as to claims for reasonablelitigation costs, see RCFC 54(d)(1).

(d) Complaint for Readjustment ofPartnership Items. In addition to including theinformation specified in subdivision (c), acomplaint for readjustment of partnership itemsshall also contain the following:

(1) All Complaints. All complaintsfor readjustment of partnership itemsshall contain

(A) the date of the notice offinal partnership administrativeadjustment and the city and state ofthe office of the Internal RevenueService that issued the notice;

(B) the year or years or otherperiods for which the notice of finalpa r t ne r s h i p a dmi n i s t r a t i veadjustment was issued;

(C) clear and concisestatements of each and every errorthat the complainant alleges to haveb e e n c o m m i t t e d b y t h eCommissioner in the notice of finalpa r t ne r sh i p ad min i s t r a t i veadjustment. The assignments oferror shall include issues, if any, inrespect to which the burden of proofis on the United States. Any issuesnot raised in the assignments oferror, or in the assignments of errorin any amendment to the complaint,shall be deemed to be conceded.Each assignment of error shall be setforth in a separately letteredsubdivision;

(D) clear and concise letteredstatements of the facts on which thecomplainant bases the assignmentsof error, except with respect to thoseassignments of error, if any, as towhich the burden of proof is on theUnited States;

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(E) the amount of the depositmade by each partner filing thecomplaint;

(F) the date and place of themaking of each deposit;

(G) a prayer setting forth reliefsought by the complainant;

(H) the signature, mailingaddress, and telephone number ofeach complainant or of eachcomplainant's counsel (see RCFC83.1 regarding attorneys of record);and

(I) a copy of the notice of finalpa r t n e r sh i p a dmi n i s t r a t i veadjustment, which shall be appendedto the complaint and with whichthere shall be included so much ofany statement accompanying thenotice as is material to the issuesraised by the assignments of error.If the notice of final partnershipadministrative adjustment or anya c c o m p a n y i n g s t a t e m e n tincorporates by reference any priornotices, or other material furnishedby the Internal Revenue Service,such parts thereof as are material tothe assignments of error likewiseshall be appended to the complaint.(2) Complaints by Tax Matters

Partner. In addition to including theinformation specified in paragraph (1) ofthis subdivision, a complaint filed by thetax matters partner during the time periodspecified in Code Section 6226(b) shallalso contain a separate numberedparagraph stating that the complainant isthe tax matters partner.

(3) Complaints by Other Partners.In addition to including the informationspecified in paragraph (1) of thissubdivision, a complaint filed by a noticepartner or by a 5-percent group during thetime period specified in Code Section6226(b) shall also contain

(A) a separate numberedparagraph stating that thecomplainant is a notice partner or a

representative of a 5-percent group(see Code Section 6226(b)(1));

(B) a separate numberedparagraph setting forth factsestablishing that the complainantsatisfies the requirements of CodeSection 6226(d);

(C) a separate numberedparagraph stating the name andcurrent address of the tax matterspartner; and

(D) a separate numberedparagraph stating that the taxmatters partner has not filed acomplaint for readjustment ofpartnership items within the periodspecified in Code Section 6226(a).

Under subdivision (d)(1)(H) above, therepresentative of a 5 percent group may sign acomplaint on behalf of all members of the group.In such circumstances, the complaint shall containa separate numbered paragraph stating that therepresentative has been duly authorized to sign onbehalf of all members of the group.

(e) Complaint for Adjustment ofPartnership Items. In addition to including theinformation specified in subdivision (c) above, acomplaint for adjustment of partnership itemsshall also contain

(1) a statement that the complainantis the tax matters partner;

(2) the date that the administrativeadjustment request was filed and anyother proper allegations showingjurisdiction in the court in accordancewith the requirements of Code Sections6228(a)(1) and (2);

(3) the year or years or other periodsto which the administrative adjustmentrelates;

(4) the city and state of the office ofthe Internal Revenue Service with whichthe administrative adjustment request wasfiled;

(5) a clear and concise statementdescribing each partnership item on thepartnership return that is sought to bechanged, and the basis for each suchrequested change. Each such statement

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shall be set forth in a separately letteredparagraph;

(6) clear and concise letteredstatements of the facts on which thecomplainant relies in support of suchrequested changes in treatment ofpartnership items;

(7) a prayer setting forth reliefsought by the complainant;

(8) the signature, mailing address,and telephone number of the complainantor the complainant's counsel (see RCFC83.1 regarding attorneys of record); and

(9) a copy of the administrativeadjustment request appended to thecomplaint.(f) Notice of Filing.

(1) Complaints by the Tax MattersPartner. Within 5 days after receivingthe Notice of Assignment from the clerk,the tax matters partner shall serve noticeof the filing of the complaint on eachpartner in the partnership as required byCode Section 6223(g). Said notice shallinclude the docket number assigned to thecase by the court and the date of theNotice of Assignment.

(2) Complaints by Other Partners.Within 5 days after receiving the Noticeof Assignment from the clerk, thecomplainant shall serve a copy of thecomplaint on the tax matters partner andat the same time notify the tax matterspartner of the docket number assigned tothe case by the court and of the date ofthe Notice of Assignment. Within 5 daysafter receiving a copy of the complaintand of the aforementioned notificationfrom the complainant, the tax matterspartner shall serve notice of the filing ofthe complaint on each partner in thepartnership as required by Code Section6223(g). Said notice shall include thedocket number assigned to the case by thecourt and the date of the Notice ofAssignment.(g) A Copy of the Complaint to Be

Provided to All Partners. Upon request by anypartner in the partnership as referred to in Code

Section 6231(a)(2)(A), the tax matters partnershall, within 10 days after receipt of such request,make available to such partner a copy of anycomplaint filed by the tax matters partner or byany other partner.

(h) Joinder of Parties.(1) Permissive Joinder. A separate

complaint shall be filed with respect toeach notice of final partnershipadministrative adjustment or eachadministrative adjustment request issuedto separate partnerships. However, asingle complaint for readjustment ofpartnership items or complaint foradjustment of partnership items may befiled seeking readjustments oradjustments of partnership items withrespect to more than one final partnershipa d mi n i s t r a t i ve ad j u s t men t o radministrative adjustment request if thenotices or requests pertain to the samepartnership. A complaint may include arequest that the proceeding be assigned tothe judge to whom one or more pendingcases (whether relating to the samepartnership or to another partnership) areassigned, if the other case or casespresent common or related issues of lawor fact. For the procedures to be followedby partners who wish to intervene orparticipate in a partnership proceeding,see Rule 4 below.

(2) Severance or Other Orders.With respect to a case based uponmultiple notices of final partnershipa d mi n i s t r a t i ve a d j u s t m e n t o radministrative adjustment requests, thecourt may order a severance and aseparate case to be maintained withrespect to one or more of such notices orrequests whenever it appears to the courtthat proceeding separately is infurtherance of convenience, or will avoidprejudice, or when separate trials will beconducive to expedition or economy.

Rule 3. Other Pleadings(a) Answer. The United States shall file

an answer or shall move with respect to the

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complaint within the periods specified in and inaccordance with the provisions of RCFC 12.

(b) Reply. For provisions relating to thefiling 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 forreadjustment of partnership items brought byanother partner or partners by filing a notice ofelection to intervene with the court. Such noticeshall state that the intervenor is the tax matterspartner and shall be filed within 45 days after thedate of the Notice of Assignment (see CodeSection 6226(b)(6) and Rule 2(d)(2) of thisAppendix).

(b) Other Partners. Any other partnerwho satisfies the requirements of Code Section6226(d) or 6228(a)(4)(B) may participate in theaction by filing a notice of election to participatewith the court. Such notice shall set forth factsestablishing that such partner satisfies therequirements of Code Section 6226(d) in the caseof an action for readjustment of partnership items,or Code Section 6228(a)(4)(B) in the case of anaction for adjustment of partnership items, andshall be filed within 45 days after the date of theNotice of Assignment. A single notice may befiled by two or more partners; however, each suchpartner must satisfy all requirements of thisparagraph in order for the notice to be treated asfiled by or for that partner.

(c) Enlargement of Time. The courtmay grant leave to file a notice of election tointervene or a notice of election to participate outof time upon a showing of sufficient cause.

(d) Pleading. No assignment of error,allegation of fact, or other statement in the natureof a pleading shall be included in the notice ofelection to intervene or notice of election toparticipate.

(e) Amendments to the Complaint. Aparty other than the complainant who isauthorized to raise issues not raised in thecomplaint may do so by filing an amendment tothe complaint. Such an amendment may be filed,without leave of court, at any time before serviceof the response to the complaint by the UnitedStates. Otherwise, such an amendment may be

filed only by leave of court. See RCFC 15(a) forthe timing for filing responses to amendments tothe complaint.

Rule 5. Service of Papers(a) Complaints. All complaints shall be

served by the clerk on the United States.(b) Papers Issued by the Court. All

papers issued by the court shall be served by theclerk on the United States, the tax matters partner(whether or not the tax matters partner is aparticipating partner), and all other participatingpartners.

(c) All Other Papers. All other papersrequired to be served (see RCFC 5) shall beserved by the parties filing such papers.Whenever a paper (other than the complaint) isrequired to be filed with the court, the originalpaper shall be filed with the court with certificatesby the filing party or the filing party's counsel thatservice of the paper has been made on each of theparties set forth in subdivision (b) above or onsuch other parties' counsel.

Rule 6. Parties(a) In General. For purposes of this

Appendix, the United States, the partner who filedthe complaint, the tax matters partner, and eachperson who satisfies the requirements of CodeSections 6226(c) and (d) or Section 6228(a)(4)shall be treated as parties to the action.

(b) Participating Partners. Participatingpartners include the partner who filed thecomplaint and such other partners who have filedeither a notice of election to intervene or a noticeof election to participate in accordance with theprovisions of RCFC 4. See Code Sections6226(c), 6228(a)(4)(A). For purposes of thecourt's procedural rules other than those set forthin this Appendix, only participating partners, asdefined in this subdivision, and the United Statesshall be considered to be parties.

Rule 7. Settlement Agreements(a) Consent by the Tax Matters Partner

to Entry of Decision. A stipulation consenting toentry of decision executed by the tax matterspartner and filed with the court shall bind allparties. The signature of the tax matters partner

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constitutes a certificate by the tax matters partnerthat no party objects to entry of the decision. SeeRule 10 below.

(b) Settlement Agreements EnteredInto by All Participating Partners or NoObjection by Participating Partners.

(1) After expiration of the timewithin which to file a notice of election tointervene or to participate under Rule 4(a)or (b) above, the United States shall movefor entry of decision and shall submit aproposed form of decision with suchmotion, if

(A) all of the participatingpartners have entered into aset t lement agreement withdefendant, or all of such partners donot object to the granting ofdefendant's motion for entry ofdecision, and

(B) the tax matters partner (if aparticipating partner) agrees to theproposed decision in the case butdoes not certify that no party objectsto the granting of defendant's motionfor entry of decision.(2) Within 3 days after the date on

which the defendant's motion for entry ofdecision is filed with the court, defendantshall serve on the tax matters partner acertificate showing the date on which thedefendant's motion was filed with thecourt.

(3) Within 3 days after receivingdefendant's certificate, the tax matterspartner shall serve on all other parties tothe action, other than the participatingpartners, copies of defendant's motion forentry of decision, the proposed decision,and defendant's certificate showing thedate on which defendant's motion wasfiled with the court, as well as a copy ofthis paragraph of Rule 7.

(4) If any party objects to thegranting of the defendant's motion forentry of decision, then that party shall,within 60 days after the date on whichdefendant's motion was filed with thecourt, file a motion for leave to file a

notice of election to intervene or toparticipate, accompanied by a separatenotice of election to intervene or toparticipate, as the case may be. If no suchmotion is filed with the court within suchperiod, or if the court should deny suchmotion, then the court may enter theproposed decision as its decision in thepartnership action. See Code Sections6226(f) and 6228(a)(5).(c) Other Settlement Agreements. If a

settlement agreement is not within the scope ofsubdivision (b) above, then

(1) in the case of a participatingpartner, defendant shall promptly filewith the court a notice of settlementagreement that identifies the participatingpartner or partners who have entered intothe settlement agreement; and

(2) in the case of any partner whoenters into a settlement agreement,defendant shall, within 7 days after thesettlement agreement is executed by boththe partner and defendant, serve on thetax matters partner a statement which setsforth

(A) the identity of the party orparties to the settlement agreementand the date of the agreement;

(B) the year or years to whichthe settlement agreement relates;and

(C) the terms of settlement asto each partnership item and theallocation of such items among thepartners. Within 7 days after receiving the

statement required by this subdivision,the tax matters partner shall serve a copyof the statement on all parties to theaction.

Rule 8. Action for Adjustment of PartnershipItems Treated as Action for Readjustment ofPartnership Items

(a) Amendment of Complaint. If, afterthe filing of a complaint for adjustment ofpartnership items (see Code Section 6228(a) andRule 2(a) above), but before hearing of such

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complaint, the Commissioner mails to the taxmatters partner a notice of final partnershipadministrative adjustment for the partnershiptaxable year to which the complaint relates, suchcomplaint shall be treated as a complaint in anaction for readjustment of the partnership items towhich such notice relates. The complainant,within 90 days after the date on which the noticeof final partnership administrative adjustment ismailed to the tax matters partner, shall file anamendment to the complaint, setting forth everyerror the complainant alleges to have beencommitted by the Commissioner in the notice offinal partnership administrative adjustment, andthe facts on which the complainant bases theassignments of error. A copy of the notice of finalpartnership administrative adjustment shall beappended to the amendment to the complaint. Onor before the date the amendment to the complaintis delivered to the court, or, if the amendment ismailed to the court, on or before the date ofmailing, the tax matters partner shall serve noticeof the filing of the amendment to the complaint oneach partner in the partnership as required byCode Section 6223(g).

(b) Participation. Any partner who hasfiled a timely notice of election to participate inthe action for adjustment of partnership itemsshall be deemed to have elected to participate inthe action for readjustment of partnership itemsand need not file another notice of election to doso. Any other partner may participate in theaction by filing a notice of election to participatewithin 45 days after the date of filing of theamendment to complaint. See Rule 4 above.

Rule 9. Appointment and Removal of TaxMatters Partner

(a) Appointment of Tax MattersPartner. If, at the time of commencement of apartnership action by a partner other than the taxmatters partner, the tax matters partner is notidentified in the complaint, the court will takesuch action as may be necessary to establish theidentity of the tax matters partner or to effect theappointment of a tax matters partner.

(b) Removal of Tax Matters Partner.After notice and opportunity to be heard, the courtmay for cause remove a partner as the tax matters

partner. If the tax matters partner is removed bythe court, or if a partner's status as tax matterspartner is terminated for reason other thanremoval by the court, the court may appointanother partner as the tax matters partner if thepartnership fails to designate a successor taxmatters partner within such period as the courtmay direct.

Rule 10. DecisionsA decision entered by the court in a

partnership action shall be binding on all parties.For the definition of parties, see Rule 6 above.


This appendix is new. Section 6226 ofthe Internal Revenue Code grants this courtjurisdiction, along with the United States TaxCourt and the United States district courts, toconsider petitions for readjustment of partnershipitems as set forth in a final partnershipadministrative adjustment. Appendix F providesthe procedural rules for such cases. In theinterests of uniformity, the rules contained inAppendix F parallel the rules applicable to thesecases in the United States Tax Court.

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APPENDIX GPROCEDURE IN INDIAN CLAIMS COMMISSION CASES

[Abrogated, effective November 15, 2007.]


Appendix G formerly appeared in theserules as General Order No. 4 issued December 29,1982. Although Appendix G remains the same insubstance as General Order No. 4, some of theearlier language was deleted as unnecessary.

2007 AbrogationFormer Appendix G specified the

procedure for the recovery of attorney’s fees andexpenses in cases transferred to the former UnitedStates Court of Claims from the Indian ClaimsCommission pursuant to 25 U.S.C. § 70v (1976)(amended 1977) and thereafter assigned to thiscourt pursuant to Pub. L. No. 97-164, § 149, 96Stat. 25, 46. Because proceedings in all suchtransferred cases have been concluded, theretention of Appendix G has become unnecessaryand therefore it has been abrogated.

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APPENDIX HPROCEDURE FOR ALTERNATIVE DISPUTE RESOLUTION

1. General. The United States Court ofFederal Claims recognizes a variety of voluntary,non-binding alternative dispute resolution (ADR)tools for use in appropriate cases. ADR techniquesinclude but are not limited to mediation, mini-trials, early neutral evaluation, and non-bindingarbitration. These processes may be conductedeither by a settlement judge or a third-partyneutral.

2. Terms. (a) Settlement Judge. A judge of

the court, other than the assigned judge.Appointment of a settlement judge permitsthe parties to engage in a frank, in-depthdiscussion of the strengths and weaknessesof each party's case before a judicialofficer without the inhibitions that mightexist before the assigned judge. Asettlement judge may act both as amediator and as a neutral evaluator. Thisprocess should be employed early enoughin the litigation to avoid needless expenseand delay. Use of a settlement judgepermits the parties to gain the benefit of ajudicial perspective without jeopardizingtheir ability to gain a resolution of theircase by the assigned judge shouldsettlement efforts fail.

(b) Assigned Judge. The judgeregularly assigned to the case.

(c) Third-Party Neutrals. Inconsultation with the bar, the court willmaintain a list of qualified individuals whohave indicated their willingness anddemonstrated their ability to serve asneutral evaluators and mediators. Partiesmay select a third-party neutral who is noton the court's list.

(d) Mediation. A flexible andvoluntary dispute-resolution procedure inwhich a settlement judge or a third-partyneutral, acting as the mediator, facilitatesnegotiations to reach a mutually agreeableresolution. The mediation processinvolves one or more sessions in whichcounsel, litigants, and the mediator

participate and may continue over a periodof time. The mediator can help the partiesimprove communication, clarify interests,and probe the strengths and weaknesses oftheir own and their opponents' positions.The mediator can also identify areas ofagreement and help generate options thatlead to settlement.

(e) Early Neutral Evaluation.Using the services of a third-party neutralor a settlement judge knowledgeable in thesubject matter of the litigation to assessthe strengths and weaknesses of theparties' positions. In this manner, theparties may gain a more realistic view oftheir prospects for success, thus narrowingthe issues and facilitating settlement.

(f) Mini-Trials. A flexible,abbreviated procedure in which the partiespresent their case, or a portion of it, to athird-party neutral or a 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 partiesmay notify the court of their desire to pursue ADR.There is no single format for ADR. Anyprocedures agreed to by the parties and adopted bythe settlement judge or third-party neutral may beused. Certain basic ground rules will be observed,however, as follows:

(a) ADR is voluntary. A party’sgood-faith determination that ADR is notappropriate in a particular case should berespected by other parties and by the court.

(b) When the parties have indicatedtheir agreement to ADR to the assignedjudge, the assigned judge, if in agreement,will forward the request to the clerk of thecourt for assignment to a settlement judgeor a third-party neutral as selected by theparties.

(c) In the event the parties agree touse ADR, the settlement judge or third-party neutral and the parties will developprocedures appropriate to that case. The

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settlement judge or third-party neutral andthe parties will develop a writtenstatement, to be executed by the settlementjudge or neutral, outlining the terms of thesettlement process, including an indicationof assent to confidentiality by all parties.Neither this statement nor any othermaterials developed for use solely withinthe ADR process will be filed with thecourt.

(d) There will be no transcript of anyADR proceeding. All ADR proceedings,including documents generated solely forthe proceedings and communicationswithin the scope of the proceedings, areconfidential and will not be provided to ajudge of the court who is not thesettlement judge in the dispute.Information that is otherwise discoverableor admissible does not lose thatcharacteristic merely because of its use inthe ADR proceedings.

(e) Participation in ADR constitutesagreement by the parties not to subpoenaor seek in any way the testimony of thesettlement judge in any subsequentproceeding.

(f) During the ADR process, thematter will remain on the docket of theassigned judge. At the conclusion of theADR process, the settlement judge or thethird-party neutral will notify the assignedjudge and the clerk of the court only of theoutcome, i.e., whether the matter has beensettled.

R ules Committee Note2002 Revision

Appendix H formerly appeared as GeneralOrder No. 13, dated April 15, 1987, and lateramended through Amended General Order No. 13,dated November 8, 1996. The adoption of theADR process as an appendix to the rules reflectsthe court’s recognition of the increasing usefulnessof ADR procedures in the resolution of claimsagainst the United States.

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APPENDIX IPROCEDURE IN CARRIER CASES

Rule 1. Carrier’s Request for Admission ofFacts

(a) Time for Filing Request. In everysuit filed by a carrier for the recovery of freightand/or passenger transportation charges, the carriershall, at the time the complaint is filed or within 30days thereafter, file with the clerk a request foradmission by the defendant of the genuineness ofany relevant documents described in and exhibitedwith the request, and of the truth of the materialmatters of fact relied on by the carrier for recoveryin the action.

(b) Form and Content of Request. Therequest shall conform to the followingrequirements:

(1) Duplication. The request, withaccompanying schedules and documents,may be typewritten, printed, or otherwisemechanically reproduced from atypewritten original, provided that allcopies filed with the clerk are legible andthe words and figures shown therein arelarge enough type to be read withoutdifficulty.

(2) Copies; Filing; Service. If therequest accompanies the complaint, copiesand service of such request shall be asprovided in RCFC 4(b) and 5.3(d). If therequest is filed subsequent to the filing ofthe complaint, copies and service of suchrequest shall be as provided in RCFC 5and 83, except that 5 copies shall beserved on the defendant in lieu of onecopy.

(3) Signature of Attorney. Therequest shall be signed by the attorney ofrecord for plaintiff.

(4) Numbered Paragraphs;Material Facts. The statements containedin the request shall be properly separatedand numbered and shall consist of specificstatements of material facts which plaintiffexpects to prove as opposed to generalallegations of the kind used in pleadings.

(5) Attachments. There shall beattached to the request copies of anycontracts, letters, or other documents,excluding tariffs and other documentsreferred to in the schedules required bysubdivisions 7 and 8, below, that plaintiffproposes to offer into evidence, in orderthat the genuineness of such documentsmay be admitted by defendant withouthaving to call a witness to identify thesame.

(6) Nature of Dispute; Statement ofIssues. The statement in the request shallbe sufficiently explicit to show the natureof the dispute and the specific reason orreasons why plaintiff believes it is entitledto recover higher rates or charges thanthose allowed by the government. Theword “dispute” as used in the precedingsentence, means the shipment orshipments with respect to which theGeneral Services Administration (GSA) oranother agency of the governmentdetermined that the carrier's charges hadbeen overpaid or refused to pay thecarrier's supplemental bills covering suchshipments, rather than subsequentshipments which are not in dispute exceptfor the fact that the overpaymentsdetermined as to the shipments in disputehave been deducted from the amount ofthe carrier's bills covering such subsequentshipments. In order to show the nature ofthe dispute, there shall be attached to orincluded in plaintiff's request a statementof the issues which, with respect to eachgroup of the carrier's bills involving thesame issue, shall consist of a briefnarrative statement of such issue with areference to (A) court decisions involvingthe same issue, or (B) the tariffs, contractterms, or other authority relied upon byplaintiff, and the tariffs or other authoritythat plaintiff believes defendant reliedupon in making deductions for claimed

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overpayments to the carrier or in refusingto pay the carrier's supplemental bills forclaimed undercharges.

(7) Schedule; Claim forTransportation of Property. Where theclaim is for the recovery of charges for thetransportation of property for thegovernment, there shall be attached to therequest a detailed schedule, prepared by orunder the supervision of the generalauditor, comptroller, or other principalaccounting officer of the carrier. Theschedule shall contain the followingfactual information:

(A) List of Carrier's Bills inDispute. The number of each of thecarrier's bills for the shipments indispute, as distinguished from thenumber of a subsequent bill fromwhich GSA made a deductionfollowing its determination of anoverpayment on the bill in dispute.

(B) Detail for Each Bill ofLading. For each bill of lading indispute, covered by each bill referredto in paragraph (A), above, thefollowing facts:

(i) the numberand symbol of each bill oflading;

(ii) the date of theshipment;

(iii) the origin andthe destination of the shipment;

(iv) a descriptiono f t h e c o mm o d i t y o rcommodities shipped, includinga description of the packingwhere this affects the rate;

(v) the carnumber and initial;

(vi) the weight ofthe shipment, including theminimum carload weight whengreater than the actual weight;

(vii) when theshipment in dispute consists of

one or more carloads of mixedcommodities, a description ofthe different commodities andthe respective weights thereofloaded in each car, includingminimum carload weights wheresuch weights affect the rates;

(viii) the ratesclaimed for each article in thesh ipment and for anyaccessorial services;

(ix) the totalfreight charges on each bill oflading;

(x) the amountsrefunded by the carrier, if any,and the dates thereof;

(xi ) i f theoverpayment determined byGSA or other agency has beendeducted from the carrier'ssubsequent bill or bills, thenumber of such subsequent billor bills, the amount deducted,and the date thereof;

(xii) the totalamount paid to the carrier;

(xiii) the balancedue;

(xiv) a specificreference to the item or items indesignated tariffs authorizingthe charges claimed, includingthe classification rating, ifnecessary, and authorization forany accessorial charges claimed;or a specific reference to agovernment rate quotation;

( x v ) t h egovernment file referencenumber as obtained from theGSA notice of overcharge, theCertificate of Indebtedness, orany other document issued byGSA, or, in the event there is noGSA reference number, thename of the government paying

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agency and bureau, thedisbursing office vouchernumber, and the date ofpayment;

(xvi) if theshipment in dispute consists inwhole or in part of a throughtransit movement, (a) thethrough assessable charges fromthe original point of shipment tothe final destination, including adescription of the commodity,the transited weight, the throughrate, the tariff or specialauthority for the through rateused, and, if local tonnage isinvolved, the weight thereof, thepoints between which localtonnage moved, and the ratesand charges assessed againstsuch tonnage, (b) details of thenet amounts paid to and beyondthe transit station, includingreferences to the “inbound” and“outbound” shipments by bill oflading number and symbol, (c)the date of shipment, origin anddestination, weight rate, and thenet amounts paid to therespective “inbound” and“outbound” carriers, namingthem and identifying the billnumbers on which suchpayments were made, and (d)the balance due, i.e., thedifference between the throughassessable charges, includingthe charges on local tonnage, ifany, and the respective netamounts paid on the inboundand outbound shipments; and

(xvii) a briefstatement as to the basis for theclaim or other brief statementthat the carrier deems necessaryto explain the peculiarities ofthe shipment(C) Computation for Typical

Bill of Lading. Following the listingof the information required abovewith respect to each group of acarrier's bills involving the sameissue or basis of freight chargecomputation, the carrier shall either(i) include in the schedule acomputation of the freight chargesfor that bill of lading, setting forththe basis or formula used andreferring to the specific items inparticular tariffs or other authorityupon which it relied for that purpose,or (ii) attach a worksheet showingsuch computation and informationwith respect to each typical bill oflading.(8) Certification and Signature of

Carrier; Property. The schedule shall becertified by the general auditor,comptroller, or principal accountingofficer of the carrier, as follows:

(Name)(Title)(Name of Carrier)

I do hereby certify that the above andforegoing schedule has been preparedfrom the books and records of saidcompany for use in a suit in the UnitedStates Court of Federal Claims, entitled_________ v. United States, No. ____,and that to the best of my knowledge,information, and belief the matterscontained therein are true and correct.To certify which, witness my hand at____________ this ____ day of ______,20__.(Signature of auditor, comptroller, orprincipal accounting officer.)

(9) Schedule; Claim forTransportation of Passengers. Where theclaim is for the recovery of charges for thetransportation of passengers for account ofthe government, there shall be attached tothe request a schedule, prepared by orunder the supervision of the generalauditor, comptroller, or other principalaccounting officer of the carrier,containing the following factual

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information:(A) List of Carrier's Bills in

Dispute. The number of each of thecarrier's bills in dispute, asdistinguished from the number of asubsequent bill from which GSAmade a deduction following itsdetermination of an overpayment onthe bill in dispute.

(B) Detai l for EachTransportation Request orWarrant. For each transportationrequest or warrant in dispute, coveredby each bill referred to in paragraph(A), above, the following facts:

(i) the symbol andnumber of each transportationrequest or warrant in dispute;

(ii) the date ofservice;

(iii) the origin anddestination of the travel;

(iv) the class ortype of service;

(v) whether thetravel was one way or roundtrip;

(vi) the number ofthe special movement, if any;

(vii) the route oftravel;

(viii) the numberof persons that traveled;

(ix) the gross percapita fare;

(x) the assessablepassenger charges;

(xi) the amountpaid, and by which governmentoffice and the location of thatoffice;

(xii) the amounts,if any, refunded by the carrier,the dates of such refund, and thegovernment office to which therefund was made and thelocation of that office;

(xiii) where anoverpayment was determined bythe government and deductedfrom the carrier's subsequentbill, the number of suchsubsequent bill, the amount ofthe deduction, and the datethereof;

(xiv) the totalamount paid and by whichgovernment office and thelocation of that office;

(xv) the balancedue;

(xvi) the tariffreference and item or specialrate authority;

( x v i i ) t h egovernment file reference; and

(xviii) a briefstatement as to the basis for theclaim, including, whereappropriate, a brief explanationshowing the extent to which theticket issued by the carrier wasnot used and the value of theunused part of the ticket.

(10) Certification and Signature ofCarrier; Passengers. The schedulecovering the transportation of passengersshall be certified in the same manner asprovided in Rule 1(b)(8), above, exceptthat where a request includes schedulespertaining to claims for the transportationof both passengers and freight, onecertification shall suffice for all schedules.(c) Carrier’s Noncompliance;

Consequences. In the event the carrier fails orrefuses to comply with the provisions of theserules, the judge may (1) refuse to allow it tosupport designated claims or prohibit it fromintroducing in evidence designated documents oritems of testimony, or (2) take other appropriateaction, which may include a dismissal of thecomplaint or any part thereof.

Rule 2. Defendant’s Response

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(a) Time for Filing; Order. Promptlyafter the filing of plaintiff's request, the judge towhom the case is assigned shall, by order filedwith the clerk, fix a reasonable time within whichdefendant shall file its response to the request. Acopy of such order shall be served on the parties asprovided in RCFC 5.

(b) Copies; Service; Signature.Defendant’s response shall consist of an originaland two copies to be filed with the clerk and withservice to be made on plaintiff as provided inRCFC 5. The response shall be signed bydefendant's attorney of record and shall complywith the terms of Rule 1(b)(1), above.

(c) Agreement; Modification; Denial.Defendant shall file such response within the timefixed by the court’s order, agreeing to the separateitems of fact, modifying the same in accordancewith the facts known by defendant, specificallydenying the same or setting forth in detail thereasons why it cannot truthfully admit or denydesignated portions of the request.

(d) Defendant's Statement of Issues. Ifdefendant does not agree with plaintiff's statementof the issues, it shall attach to or include in itsresponse a statement of the issues, which, withrespect to each group of the carrier's bills involvingthe same issue, shall consist of a brief narrativestatement of the issue, as defendant contends, withreference to (1) a court decision involving the sameissue, or (2) the tariffs or other authority reliedupon by defendant.

(e) Verification of Carrier'sComputations. If defendant finds that theschedule attached to plaintiff's request, or anyportion thereof affecting the amount claimed, isincorrect on the basis of the tariffs, governmentrate quotations, or other authority relied on byplaintiff in its request, there shall be attached to theresponse a schedule prepared by defendant, settingforth the facts and figures as to the amount offreight charges defendant asserts would be due oneach carrier's bill if the court holds that the tariffsor other authorities relied on by plaintiff in itsrequest are applicable, and showing how defendantarrived at any changes or corrections in theamounts claimed by plaintiff.

(f) Schedule; Defendant's Basis for

Applicable Charges. If defendant claims that thetariffs, government rate quotations, or otherauthority relied on by plaintiff are inapplicablewith respect to any of the carrier's bills listed inplaintiff's request, there shall be attached to theresponse a schedule prepared by defendant settingforth the facts and figures in detail as to theamount of freight or passenger charges defendantclaims is due on each disputed carrier's bill, andcontaining a specific reference to the item or itemsin designated tariffs, government rate quotations,or other authority relied on by defendant in supportof its contention. The schedule shall also complywith the terms of subdivision (b)(7)(C), above.

(g) Failure to Deny or Respond WithinSpecified Time; Consequences. Except wherethe response details the reasons why defendantcannot admit or deny a particular statement in therequest, any fact not so modified or denied in theresponse shall be deemed admitted, and the failureof defendant to file its response within the timespecified by the court’s order shall be taken as anadmission of all of the facts as set forth in therequest.

(h) Qualified Denial of Facts Availableto Defendant; Consequences. Where the requestsets forth any facts that are within the knowledgeof GSA or of the department or agency ofdefendant for which the transportation wasperformed and these facts specifically include butare not limited to the facts and figures thatplaintiff, by this order, is directed to include in itsschedules, a response stating that defendant cannottruthfully admit or deny such facts, or a denialbased on a lack of knowledge by defendant'sattorney of record, shall be deemed an admissionthereof, provided that such a response shall not bedeemed an admission if accompanied by the swornstatement of the official in charge of the recordsthat a search has been made for the necessarydocuments or information and that the documentsor information cannot be found.

(i) Relation to Pleadings; Time forFiling Answer or Counterclaim. In all cases towhich this procedure applies, the time for filingdefendant's answer and any counterclaim may,without regard to the provisions of RCFC 12 and13, be contemporaneous with the date fixed by the

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judge for filing defendant's response to plaintiff'srequest, provided, however, that the period oflimitations provided by 49 U.S.C. §§ 11705 and14705 within which defendant may file acounterclaim is not extended by any rule set forthin this Appendix or by any order. At its option,defendant may include the response in its answeror counterclaim, which pleadings, nevertheless,shall otherwise comply with the rules applicable tothem.

Rule 3. Acceptance of Response; Pretrial;Judgment

(a) Plaintiff's Acceptance of Response.If a plaintiff is willing to accept the amount shownto be due it in defendant's response, or, where acounterclaim has been filed, is willing to accept thenet amount shown to be due plaintiff in theresponse after deducting the amount of defendant'scounterclaim, plaintiff's attorney of record shallsign and file with the clerk within 30 days after thefiling of the response an original and two copies ofa typewritten statement titled “Plaintiff’sAcceptance of the Amount Defendant Admits isDue,” indicating that the response shows that aspecified sum is due plaintiff or, where acounterclaim has been filed, that the responseshows that the net amount of the counterclaim is aspecified sum, and that plaintiff consents to theentry of judgment in the amount specified in favorof plaintiff in full settlement and satisfaction of allclaims asserted in the complaint and request foradmission of facts.

(b) Pretrial Conference; FixingAmount of Recovery. When plaintiff does not filean acceptance of the amount shown to be due inthe response, a pretrial conference shall be held forthe purpose of (1) resolving all issues andrecording an agreement for the entry of judgmentor for dismissal of the complaint or any partthereof, or (2) segregating the carrier's bills indispute from those not in controversy and fixingthe amount that either party would be entitled torecover in the event of a decision in its favor,and/or (3) taking any other action that may aid inthe prompt disposition of the suit.

(c) Entry of Judgment. Where allmaterial issues are disposed of through the filing

by plaintiff of its acceptance of the amount shownto be due in defendant's response or at the pretrialconference, or by defendant's failure to file itsresponse within the time fixed by the judge,judgment may be entered without furtherproceedings.

Rule 4. Cases Within Primary Jurisdiction ofthe Surface Transportation Board

(a) Referral to the SurfaceTransportation Board. In any suit subject to theterms of this Appendix, if defendant contends,whether on the basis of the freight chargecomputations used by plaintiff or on the basis ofthe freight charge computations used by defendant,that any of the carrier's bills listed in the requestraise issues within the primary jurisdiction of theSurface Transportation Board, and if defendantintends to move the court to refer such issues tothat agency, defendant shall file its motion with theclerk at the time fixed for the filing of its responseunder this order. The motion shall contain:

(1) an identification of the carrier'sbills involved unless all the bills in suit areincluded in the motion;

(2) a description of the commoditiesshipped and a statement respecting anyother factors that are pertinent to theissues covered by the motion;

(3) a reference to the applicabletariffs and a copy of the pertinentprovisions thereof;

(4) a precise statement of the issue orissues to be referred; and

(5) a statement as to whether theSurface Transportation Board hasconstrued the cited tariffs in priordecisions or has clarified the factsunderlying them, citing the pertinentdecisions, if any.(b) Plaintiff's Response to Defendant's

Motion for Referral. Plaintiff's response to themotion shall be filed within 30 days after serviceof the motion and shall state whether plaintiffconcurs in the motion. If plaintiff contends that theSurface Transportation Board has construed thetariffs referred to in defendant's motion or has

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clarified the factors underlying them in previousdecisions, the response shall cite such decision.

(c) Referral to Surface TransportationBoard—Plaintiff's Motion. In any suit subject tothe terms of this Appendix, if plaintiff contendsthat any of the carrier's bills in suit raise issueswithin the primary jurisdiction of the SurfaceTransportation Board and if plaintiff intends tomove the court to refer such issues to that agency,plaintiff shall file its motion within 30 days afterthe date defendant's response is filed and shallconform such motion to the requirements of Rule4(a), above.

(d) Defendant's Response to Plaintiff'sMotion for Referral. Defendant's response toplaintiff's motion shall conform to the requirementsof Rule 4(b), above.

(e) Effect of Filing a Referral Motion.The trial of any case subject to the terms of thisAppendix in which a motion for referral is filedshall be deferred until final action on the motion.

(f) Failure to File a Referral MotionWithin the Specified Time. The failure of eitherparty to file, within the time prescribed above, amotion requesting the court to refer a pending caseor any part thereof to the Surface TransportationBoard may be deemed good cause for denying anysuch motion thereafter filed.


Appendix E formerly appeared in theserules as Appendix C. Additionally, substantivechanges have been made.

First, the word “common” has beenstricken from the term “common carrier.” Theterm “common carrier” is no longer used in theInterstate Commerce Act, 49 U.S.C. § 13102. Asa result of industry deregulation, see ICCTermination Act of 1995, Pub. L. No. 104-88,§103, 109 Stat. 803, 852, carriers are no longerrequired to file tariffs other than for householdgoods and noncontiguous domestic trade.Additionally, Certificates of Public Convenienceand Necessity are no longer required and thus thereare no “common carriers” in the sense in whichthat term formerly was used, i.e., to describe apublic utility occupying fully regulated status.

Second, in Rule 1(b)(6), titled “Nature ofDispute; Statement of Issues,” the term “GeneralAccounting Office” was replaced with “GeneralServices Administration.” The GSA Board ofContract Appeals replaced the General AccountingOffice as reviewing authority in GSAtransportation audit billing appeals pursuant to theLegislative Branch Appropriations Act of 1996,effective June 30, 1996, and delegations ofauthority granted thereunder. Also, in Rule1(b)(6), the term “contract terms” was added asauthority relied upon by plaintiffs in theirstatement of issues because, with no tariff filingrequirement, individual movements by contract aremore common.

Third, all references to a “§ 22 quotation”were replaced with “government rate quotation.”Section 22 (49 U.S.C. § 22 (1887)) rates werereplaced by “government rates” under 49 U.S.C.§ 10721 (rail) and § 13712 (all other modes), andas such, lower rates are not limited strictly for theuse of the government.

Fourth, in Rule 1(b)(9)(B), the word“government” was struck in reference to atransportation request or warrant in dispute. Underthe provisions of 41 CFR § 102-118.175,Government Bills of Lading will no longer be usedfor domestic traffic and under 41 CFR § 102-118.180, Government Transportation Requests willno longer be mandatory.

Fifth, in Rule 2(i), titled “Relation toPleadings; Time for Filing Answer orCounterclaim,” the statutory reference wasupdated.

Finally, in Rule 4, all references to the“Interstate Commerce Commission” were strickenand replaced with the “Surface TransportationBoard.” While carriers are no longer subject tofull regulation, the “reasonableness requirement”on “through routes,” “divisions of joint rates,” andrates “made collectively by [any group of] carriersunder agreements approved by the SurfaceTransportation Board,” remains intact and issubject to that body’s review.

2007 RedesignationAppendix I formerly appeared in these

rules as Appendix E.

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APPENDIX OF FORMS

FORM 1ADMISSION INSTRUCTIONS

The accompanying form shall be used in applying for admission to the bar of this court pursuant toRCFC 83.1. This form should be duly executed and returned to the clerk of the court along with thefollowing items:

(1) a current (not more than three months old) original certificate from the Clerk of the SupremeCourt of the United States, or the clerk of the highest court of your state, territory, possession, or theDistrict of Columbia, or the United States Court of Appeals for the Federal Circuit, attesting to youradmission to the bar of that court and your good standing therein (Note: a letter from the bar ofyour state is NOT acceptable);

(2) two letters or signed statements from attorneys stating the following:a. they are members of the bar of this court, or the bar of the Supreme Court of the United States;b. they are not related to you;c. you are personally known to them;d. you possess all of the qualifications required for admission here;e. they have examined your application; and f. they affirm that your personal and professional character and

standing are good;

(3) a check, made payable to “Clerk, United States Court of Federal Claims,” in the amount of$250.00 to cover the required fee.

Applications (including letters and fee) must be complete when submitted; incomplete applicationswill be returned.

Admission under this procedure does not require your appearance in person. A certificate will beforwarded to you upon the granting of your application.

______________________Clerk of Court 717 Madison Place, NW Washington, DC 20005-1011(202) 357-6400

134

IN THE MATTER OF THE PETITION OF_____________________________________________

(Please print/type your full name on the above line)

FOR ADMISSION TO PRACTICE INTHE UNITED STATES COURT OF FEDERAL CLAIMS

TO THE CHIEF JUDGE AND JUDGES OF THE UNITED STATES COURT OF FEDERAL CLAIMS:

The petitioner,__________________________________________, respectfully shows this court:

That he/she is a resident of the city of_______________________, the state of_________________,and that petitioner on the date of_______________________was duly licensed and admitted to practice asan attorney at law in the _______________________________________(highest state court), and is nowa member of the bar thereof and in good standing.

WHEREFORE, said petitioner herein prays that he/she may be admitted to practice in the UnitedStates Court of Federal Claims in accordance with the laws and rules applicable thereto.

I, ____________________________________________________________ DO SOLEMNLYSWEAR (OR AFFIRM) THAT I WILL SUPPORT THE CONSTITUTION OF THE UNITED STATES ANDTHAT I WILL CONDUCT MYSELF IN AN UPRIGHT MANNER AS AN ATTORNEY OF THIS COURT.

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.Executed on (date) ______________________________. (28 U.S.C. §1746)

______________________________________Signature

Address (including firm if applicable):

___________________________________________

___________________________________________

___________________________________________

___________________________________________

Phone: ___________________________ Fax: _______________________

E-mail address: _________________________________

--------------------------------------------------------------------------------------------------------------------------------------

Attorney Pro Bono Appointment Registration Form for Pro Se Cases:

9 I am willing to be appointed counsel for pro se plaintiffs on a pro bono basis.

135

FORM 2COVER SHEET

In The United States Court of Federal Claims

Cover SheetPlaintiff(s) or Petitioner(s)______________________________________________________________________________________________________________________________________________________________________________

If this is a multi-plaintiff case, pursuant to RCFC 20(a), please attach an alphabetized, numbered list of all plaintiffs.

Name of the attorney of record (See RCFC 83.1(c)): ______________________________________

Firm Name: ______________________________________

Post Office Box: ______________________________________

Street Address: ______________________________________

City-State-Zip: ______________________________________

Telephone & Facsimile Numbers: ______________________________________

Is the attorney of record admitted to the Court of Federal Claims Bar? 9 Yes 9 No

Does the attorney of record have a Court of Federal Claims ECF account? 9 Yes 9 No If not admitted to the court or enrolled in the court’s ECF system, please call (202) 357-6402 for admission papers and/or enrollment instructions.

Nature of Suit Code: 999Select only one (three digit) nature-of-suit code from theattached sheet and if numbers 118, 134, 226, 312, 356, or 528 are used, please explain.

Agency Identification Code: 999See attached sheet for three-digit codes.

Amount Claimed: $____________________________________Use estimate if specific amount is not pleaded.

Disclosure Statement:Is a RCFC 7.1 Disclosure Statement required? 9 Yes 9 No If yes, please note that two copies are necessary.

Bid Protest:Indicate approximate dollar amount of procurement at issue: $_____________________________Is plaintiff a small business? 9 Yes 9 No

Vaccine Case: Date of Vaccination: _______________________

Related Cases: Is this case directly related to any pending or previous case? 9 Yes 9 NoIf yes, you are required to file a separate notice of directly related case(s). See RCFC 40.2.

136

Nature-of-Suit Codes for General Jurisdiction Cases

100 Contract - Construction - (CDA)

102 Contract - Fail to Award - (CDA)

104 Contract - Lease - (CDA)

106 Contract - Maintenance - (CDA)

108 Contract - Renovation - (CDA)

110 Contract - Repair - (CDA)

112 Contract - Sale - (CDA)

114 Contract - Service - (CDA)

116 Contract - Supply - (CDA)

118 Contract - Other - (CDA)

120 Contract - Bailment

122 Contract - Bid Preparation Costs

124 Contract - Medicare Act

126 Contract - Realty Sale

128 Contract - Subsidy

130 Contract - Surety

132 Contract - Timber Sale

134 Contract - Other

136 Contract - Other - Wunderlich

138 Contract - Injunctions (Pre Award)

140 Contract - Injunction (Post Award)

200 Tax - Allowance of Interest

202 Tax - Declaratory Judgment - 28:1507

204 Tax - Estate

206 Tax - Excise

208 Tax - Gift

210 Tax - Income, Corporate

212 Tax - Income, Individual

214 Tax - Informer’s Fees

216 Tax - Preparer’s Penalty

218 Tax - Railroad

Retirement/Unemployment Tax Act

220 Tax - TEFRA Partnership - 28:1508

222 Tax - Windfall Profit

Overpayment - Interest

224 Tax - 100% Penalty - 26:6672 -

Withholding

226 Tax - Other

300 Civilian Pay - Back Pay

302 Civilian Pay - COLA

303 Civilian Pay - Disability Annuity

304 Civilian Pay - FLSA

306 Civilian Pay - Overtime Compensation

308 Civilian Pay - Relocation Expenses

310 Civilian Pay - Suggestion Award

312 Civilian Pay - Other

340 Military Pay - Back Pay

342 Military Pay - CHAMPUS

344 Military Pay - Correct records

346 Military Pay - Correct/Reinstate

348 Military Pay - Reinstatement

350 Military Pay - Relocation Expenses

352 Military Pay - Retirement

354 Military Pay - SBP

356 Military Pay - Other

500 Common Carrier - transportation

502 Copyright

504 Native American

506 Oil Spill Clean Up

508 Patent

510 Taking - Personalty

511 Taking - FIRREA

512 Taking - Realty

514 Taking - Other

516 Miscellaneous - Damages

518 Miscellaneous - Lease

520 Miscellaneous - Mineral Leasing Act

522 Miscellaneous - Oyster Growers

Damages

524 Miscellaneous - Safety Off. Ben. Act

526 Miscellaneous - Royalty/Penalty Gas

Production

528 Miscellaneous - Other

529 TRIS

532 CLA Review - Japanese Internment

534 Indian Claims Commission

535 Informer’s Reward

536 Spent Nuclear Fuel

Nature-of-Suit Codes for Vaccine Cases

456 Injury - DPT & Polio

457 Injury - D/T

458 Injury - DTP/DPT

459 Injury - Measles

460 Injury - M/M/R

461 Injury - Measles/Rubella

462 Injury - Mumps

463 Injury - Pertussis

464 Injury - Polio - inactive

465 Injury - Polio - other

466 Injury - Rubella

467 Injury - Tetanus & Diphtheria

468 Injury - Tetanus & Tox.

469 Injury - Other

484 Injury - Hepatitis B

485 Injury - Hemophilus Influenzae

486 Injury - Varicella

490 Injury - Rotavirus

492 Injury - Thimerosal

494 Injury - Trivalent Influenzae

496 Injury - Meningococcal

498 Injury - Human Papillomavirus

470 Death - DPT & Polio

471 Death - D/T

472 Death - DTP/DPT

473 Death - Measles

474 Death - M/M/R

475 Death - Measles/Rubella

476 Death - Mumps

477 Death - Pertussis

478 Death - Polio - inactive

479 Death - Polio - other

480 Death - Rubella

481 Death - Tetanus & Diphtheria

482 Death - Tetanus & Tox.

483 Death - Other

487 Death - Hepatitus B

488 Death - Hemophilus Influenzae

489 Death - Varicella

491 Death - Rotavirus

493 Death - Thimerosal

495 Death - Trivalent Influenzae

497 Death - Meningococcal

499 Death - Human Papillomavirus

137

AGENCY CODES

AGR Agriculture

AF Air Force

ARM Army

AEC Atomic Energy Commission

COM Department of Commerce

DOD Department of Defense

DOE Department of Energy

ED Department of Education

EPA Environmental Protection Agency

GPO Government Printing Office

GSA General Services Administration

HLS Homeland Security

HHS Health and Human Services

HUD Housing and Urban Development

DOI Department of the Interior

ICC Interstate Commerce Commission

DOJ Department of Justice

LAB Department of Labor

MC Marine Corps

NAS National Aeronautical Space Agency

NAV Navy

NRC Nuclear Regulatory Commission

PS Postal Service

STA State Department

SBA Small Business Administration

TRN Department of Transportation

TRE Department of Treasury

VA Department of Veterans Affairs

VAR Various Agencies

O Other

138

FORM 3AREPORTER FORMS


No. ___________

John Doe, Plaintiff

v.

The United States, Defendant

______________________, 20______

Testimony for Plaintiff (or Defendant)

The parties met, pursuant to notice of the court, at the time above stated, in

Present: _____________________ (counsel for plaintiff); and___________________

(counsel for defendant).

Testimony on behalf of the plaintiff (or defendant) was taken as follows:

Richard Roe, a witness produced on behalf of the plaintiff (or defendant), having first been

duly sworn by said court, was examined, and in answer to interrogatories testified as follows:

Q. State your name, etc.

A. __________________________________.

Q. Have you, etc.?

A. __________________________________.

139

FORM 3BCERTIFICATE OF REPORTER

Certificate of Reporter

I, , reporter, hereby certify that at the time and place, aforesaid, I did

cause to be taken down and transcribed the proceedings in this case, including the questions propounded to

and the answers given by said witnesses so called by plaintiff (or defendant), and that the foregoing record

is a correct transcript of the proceedings and testimony so had therein.

In witness whereof I have hereunto set my hand this _______ day of ________________, 20____.

Signature:_________________________________

Address:__________________________________

140

FORM 4BILL OF COSTS


BILL OF COSTS

__________________ No._____________

vs.

THE UNITED STATES

Judgment with costs having been entered in the above-captioned case on the ____ day of __________,

20___, against ______________, the clerk is requested to tax the following as costs:

Fees of the clerk ....................................................................................................................... $___________

Fees of the reporter for all or any part of the trial or hearing transcript

necessarily obtained for use in the case.................................................................................... ___________

Fees for witnesses; for statutory fees, see 28 U.S.C. §1821 (attach itemized listing).............. ___________

Costs for certification or duplication of papers necessarily obtained for use

in case, provide number of copies, total pages and cost per page *.......................................... ___________

Costs incident to taking of depositions (if not of record, then attach statement as to need)..... ___________

Costs pursuant to FRAP 39(e)................................................................................................... ___________

Other costs (itemize on attachment).......................................................................................... ___________

Total .......................................................................................................................................... $___________

*Allowable duplication costs are restricted to briefs on dispositive matters for a total of 5 copies; additional copies are

allowable where third parties are present.

CERTIFICATION

State/District of _________________.

County of ______________________.

I certify under penalty of perjury that the foregoing costs are correct and were necessarily incurred in this action and that the

services for which fees have been charged were actually and necessarily performed and that a copy hereof was this day

mailed to _____________________________ with postage fully prepaid thereon. Executed on (Date). (28 U.S.C. §1746)

___________________________

(Signature of Attorney of Record)

___________________________

___________________________

(Address)

141

FORM 5EAJA FORM

APPLICATION

FOR FEES AND OTHER EXPENSES UNDER THE EQUAL ACCESS TO JUSTICE ACT

Title 28 U.S.C. §2412(d), Title II of Public Law 96-481, 94 STAT 2325

1. COURT 2. DATE FILED 3. DOCKET NO.

United States Court of Federal Claims

4. NAME OF APPLICANT (One per form) 5. GOVERNMENT AGENCY INVOLVED IN CLAIM

(Use agency code on reverse side)

6. NATURE OF APPLICATION 7. APPEAL FROM:

A. G Original application under 28 U.S.C. §2412(d)(1)(A) G DISTRICT COURT GBANKRUPTCY COURTafter judgment in civil action against U.S. G OTHER:____________________________________

B. G Appeal of fees and expenses awarded by Lower Court

(If Item 6B is checked go to Item 7.) 7A. DATE FILED IN LOWER 7B. DOCKET NO.C. G Original application under 28 U.S.C. §2412(d)(3) after COURT

review of agency decision.D. G Petition for leave to appeal an administrative agency

fee determination under 5 U.S.C. §504(c)(2).

8. ADMINISTRATIVE AGENCY DOCKET NO. 9. DATE FILED IN ADMINISTRATIVE AGENCY

10. SHOWING OF “PREVAILING PARTY” STATUS (28 U.S.C. §2412(d)(1)(B)):

Is agency order, court order, or other relevant document attached?G YES G NO

11. SHOWING OF ELIGIBILITY (28 U.S.C. §2412(d)(2)(B)):

Is net worth information attached?G YES G NO

12. ENTER ALLEGATION THAT GOVERNMENT POSITION WAS NOT SUBSTANTIALLY JUSTIFIED (28 U.S.C. §2412(d)(1)(B)):

13. FOR EACH AMOUNT CLAIMED, PLEASE ATTACH ITEMIZATION INDICATING SERVICE PROVIDED, DATE, HOURS, AND RATE(28 U.S.C. §2412(d)(2)(A)):

AMOUNT CLAIMED

A. ATTORNEY FEES.............................................................................................. $_______________________B. STUDY................................................................................................................ $_______________________C. ANALYSIS.......................................................................................................... $_______________________D. ENGINEERING REPORT................................................................................... $_______________________E. TEST.................................................................................................................. $_______________________F. PROJECT........................................................................................................... $_______________________G. EXPERT WITNESS FEES................................................................................. $_______________________H. OTHER FEES AND EXPENSES - SPECIFY

(1)_______________________________________________________ $_______________________(2)_______________________________________________________ $_______________________(3)_______________________________________________________ $_______________________

I. TOTAL FEES AND EXPENSES.......................................................................... $_______________________

14. SIGNATURE 15. DATE

NOTE: THIS FORM SHOULD ACCOMPANY YOUR CLAIM WHEN FILED WITH THE CLERK OF COURT

142

EAJA ADMINISTRATIVE AGENCY CODES

(Use the following abbreviations for the U.S. Government Agency involved in claim (Item 5))

BENEFITS REVIEW BOARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (BRB)CIVIL AERONAUTICS BOARD .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (CAB)CIVIL SERVICE COMMISSION (U.S.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (CSC)CONSUMER PRODUCTS SAFETY COMMISSION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (CPSC)COPYRIGHT ROYALTY TRIBUNAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (CRT)DEPARTMENT OF AGRICULTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (AGRI)DEPARTMENT OF COMMERCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (COMM)DEPARTMENT OF DEFENSE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (DOD)DEPARTMENT OF EDUCATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (EDUC)DEPARTMENT OF ENERGY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (DOE)DEPARTMENT OF HEALTH, EDUCATION & WELFARE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (HEW)DEPARTMENT OF HEALTH & HUMAN SERVICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (HHS)DEPARTMENT OF HOMELAND SECURITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (HLS)DEPARTMENT OF HOUSING & URBAN DEVELOPMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (HUD)DEPARTMENT OF INTERIOR .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (DOI)DEPARTMENT OF JUSTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (DOJ)DEPARTMENT OF LABOR (Except OSHA). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (LABR)DEPARTMENT OF TRANSPORTATION SAFETY BOARD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (TRAN)DEPARTMENT OF THE TREASURY (Except IRS). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (TREA)DRUG ENFORCEMENT AGENCY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (DEA)ENVIRONMENTAL PROTECTION AGENCY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (EPA)EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (EEOC)FEDERAL AVIATION AGENCY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (FAA)FEDERAL COAL MINE SAFETY BOARD.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (FCMS)FEDERAL COMMUNICATIONS COMMISSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (FCC)FEDERAL DEPOSIT INSURANCE CORPORATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (FDIC)FEDERAL ELECTION COMMISSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (FEC)FEDERAL ENERGY AGENCY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (FEA)FEDERAL ENERGY REGULATORY COMMISSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (FERC)FEDERAL HOME LOAN BANK BOARD.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (FHLB)FEDERAL LABOR RELATIONS AUTHORITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (FLRA)FEDERAL MARITIME BOARD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (FMBD)FEDERAL MARITIME COMMISSION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (FMC)FEDERAL MINE SAFETY & HEALTH ADMINISTRATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (MSHA)FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (MSHR)FEDERAL RESERVE SYSTEM.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (FRS)FEDERAL TRADE COMMISSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (FTC)FOOD & DRUG ADMINISTRATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (FDA)GENERAL SERVICES ADMINISTRATION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (GSA)IMMIGRATION & NATURALIZATION SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (INS)INTERNAL REVENUE SERVICE (Except TAX COURT). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (IRS)INTERSTATE COMMERCE COMMISSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (ICC)MERIT SYSTEMS PROTECTION BOARD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (MSPB)NATIONAL LABOR RELATIONS BOARD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (NLRB)NUCLEAR REGULATORY COMMISSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (NRC)OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (OSHA)OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (OSHC)OFFICE OF MANAGEMENT & BUDGET. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (OMB)OFFICE OF PERSONNEL MANAGEMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (OPM)OFFICE OF WORKERS COMPENSATION PROGRAM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (OWCP)PATENT OFFICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (PATO)POSTAL RATE COMMISSION (U.S.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (PRC)POSTAL SERVICE (U.S.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (USPS)RR RETIREMENT BOARD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (RRRB)SECURITIES & EXCHANGE COMMISSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (SEC)SMALL BUSINESS ADMINISTRATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (SBA)TAX COURT, INTERNAL REVENUE SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (TXC)

143

FORM 6SUBPOENA


____________________________________

____________________________________

____________________________________

vs. No. ______________

THE UNITED STATES

SUBPOENA

To: ________________________________

____________________________________

____________________________________

1. YOU ARE COMMANDED to appear at the place, date, and time specified below to testify in the above-captioned case.

Place of Testimony:________________________________________________________

Date and Time:____________________________________________________________

2. YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above-

captioned case.

Place of Deposition:_______________________________________________________

Date and Time:___________________________________________________________

3. YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place, date,

and time specified below (list documents or objects):

Place:___________________________________________________________________

Date and Time:____________________________________________________________

4. YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below.

Premises:________________________________________________________________

Date and Time:____________________________________________________________

Any organization not a party to this suit that is subpoenaed for the taking of a deposition 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.

_____________________________________________________________________________________________ISSUING OFFICER SIGNATURE, AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT) DATE

___________________________________________________________________________________________________________________ISSUING OFFICER’S NAME, ADDRESS, AND PHONE NUMBER

____________________________________________________________________________________________________________________________________

NOTE - If the place of travel is more than 100 miles (by the shortest usual means of travel) from the place where the subpoena is served, or if the placeof the deposition is more than 100 miles from the place where the deponent resides, is employed, or transacts business in person, the person served mayregard the command as optional unless there is attached to the subpoena an order of the court requiring his/her appearance notwithstanding the distanceof travel. In any event, response to the subpoena will entitle the person to the fees and mileage allowed by law. (28 U.S.C. §1821)

PROOF OF SERVICE

DATE PLACE

SERVEDSERVED ON (PRINT NAME) MANNER OF SERVICE

9 Fees tendered for one day’s attendance and mileage allowed by law. (Fees and mileage need not be tendered when the subpoena is issued

on behalf of the United States or an officer or agency thereof.)

DECLARATION OF SERVICE

144

I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Proof of Serviceis true and correct.

Executed on: DATE SIGNATURE OF SERVER

ADDRESS OF SERVER

RCFC 45.(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 burdenor 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 anappropriate 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, copying, testing, or sampling of designated electronically stored information,books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unlesscommanded to appear for deposition, hearing or trial.

(B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection, copying, testing, or sampling 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, serveupon the party or attorney designated in the subpoena written objection to producing any or all of the designated materials or inspection of thepremises—or to producing electronically stored information in the form or forms requested. If objection is made, the party serving the subpoenashall not be entitled to inspect, copy, test, or sample the materials or inspect the premises except pursuant to an order of the court. If objectionhas been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compelthe production, inspection, copying, testing, or sampling. Such an order to compel shall protect any person who is not a party or an officer ofa party from significant expense resulting from the inspection, copying, testing, or sampling 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 thisrule, such a person may in order to attend trial be commanded to travel from any such place;

(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 whosebehalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardshipand assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance orproduction only upon specified conditions.

(d) Duties in Responding to Subpoena. (1)(A) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shallorganize and label them to correspond with the categories in the demand.

(B) If a subpoena does not specify the form or forms for producing electronically stored information, a person responding to a subpoenamust produce the information in a form or forms in which the person ordinarily maintains it or in a form or forms that are reasonably usable.

(C) A person responding to a subpoena need not produce the same electronically stored information in more than one form.(D) A person responding to a subpoena need not provide discovery of electronically stored information from sources that the person

identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or to quash, the person from whomdiscovery is sought must show that the information sought is not reasonably accessible because of undue burden or cost. If that showing ismade, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations ofRule 26(b)(2)(C). The court may specify conditions for the discovery.(2)(A) 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 notproduced that is sufficient to enable the demanding party to contest the claim.

(B) If information is produced in response to a subpoena that is subject to a claim of privilege or of protection as trial-preparationmaterial, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified,a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the informationuntil the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim.If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The person who producedthe information must preserve the information until the claim is resolved.

(e) Contempt. Failure of any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court

145

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 ata place not within the limits provided by clause (ii) of subparagraph (c)(3)(A).

146

FORM 7CAPTION OF ALL FILINGS IN VACCINE CASES

United States Court of Federal ClaimsOFFICE OF SPECIAL MASTERS

________________________,

Petitioner[s],

v.

SECRETARY OF HEALTH ANDHUMAN SERVICES,

Respondent.

))))))))))))

No. _________V

Special Master__________________

[TITLE OF FILING]

147

FORM 7ASUBPOENA IN VACCINE CASES

United States Court of Federal ClaimsOFFICE OF SPECIAL MASTERS

________________________,

Petitioner[s],

v.

SECRETARY OF HEALTH AND HUMANSERVICES,

Respondent.

))))))))))))

No. _________V

Special Master__________________

SUBPOENA

To: ________________________________________________________________________________________________________

1. YOU ARE COMMANDED to appear at the place, date, and time specified below to testify in the above-captioned case.Place of Testimony: _________________________________________Date and Time:_____________________________________________

2. YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a depositionin the above-captioned case.Place of Deposition:_________________________________________Date and Time:_____________________________________________

3. YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at theplace, date, and time specified below (list documents or objects):Place:____________________________________________________Date and Time:_____________________________________________

4. YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below.Premises:_________________________________________________Date and Time:_____________________________________________

Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or moreofficers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each persondesignated, the matters on which the person will testify.______________________________________________________________________________ISSUING OFFICER SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT) DATE

___________________________________________________________________________________________________________________ISSUING OFFICER’S NAME, ADDRESS, AND PHONE NUMBER___________________________________________________________________________________________________________________

NOTE - If the place of travel is more than 100 miles (by the shortest usual means of travel) from the place where the subpoena is served, or if the placeof the deposition is more than 100 miles from the place where the deponent resides, is employed, or transacts business in person, the person served mayregard the command as optional unless there is attached to the subpoena an order of the court requiring his/her appearance notwithstanding the distanceof travel. In any event, response to the subpoena will entitle the person to the fees and mileage allowed by law. (28 U.S.C. §1821)

148

PROOF OF SERVICE

DATE PLACE

SERVEDSERVED ON (PRINT NAME) MANNER OF SERVICE

9 Fees tendered for one day’s attendance and mileage allowed by law. (Fees and mileage need not be tendered when the subpoena is issued on behalfof the United States or an officer or agency thereof.)

DECLARATION OF SERVICE

I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Proof of Serviceis true and correct.

Executed on DATE SIGNATURE OF SERVER

_____________________________________ADDRESS OF SERVER

RCFC 45.(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 burdenor 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 anappropriate 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, copying, testing, or sampling of designated electronically stored information,books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unlesscommanded to appear for deposition, hearing or trial.

(B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection, copying, testing, or sampling 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, serveupon the party or attorney designated in the subpoena written objection to producing any or all of the designated materials or inspection of thepremises—or to producing electronically stored information in the form or forms requested. If objection is made, the party serving the subpoenashall not be entitled to inspect, copy, test, or sample the materials or inspect the premises except pursuant to an order of the court. If objectionhas been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compelthe production, inspection, copying, testing, or sampling. Such an order to compel shall protect any person who is not a party or an officer ofa party from significant expense resulting from the inspection, copying, testing or sampling 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 thisrule, such a person may in order to attend trial be commanded to travel from any such place;

(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 whosebehalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardshipand assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance orproduction only upon specified conditions.

(d) Duties in Responding to Subpoena. (1)(A) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shallorganize and label them to correspond with the categories in the demand.

(B) If a subpoena does not specify the form or forms for producing electronically stored information, a person responding to a subpoenamust produce the information in a form or forms in which the person ordinarily maintains it or in a form or forms that are reasonably usable.

(C) A person responding to a subpoena need not produce the same electronically stored information in more than one form.(D) A person responding to a subpoena need not provide discovery of electronically stored information from sources that the person

identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or to quash, the person from whomdiscovery is sought must show that the information sought is not reasonably accessible because of undue burden or cost. If that showing ismade, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations ofRule 26(b)(2)(C). The court may specify conditions for the discovery.

149

(2)(A) 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 notproduced that is sufficient to enable the demanding party to contest the claim.

(B) If information is produced in response to a subpoena that is subject to a claim of privilege or of protection as trial-preparationmaterial, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified,a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the informationuntil the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim.If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The person who producedthe information must preserve the information until the claim is resolved.

(e) Contempt. Failure of any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the courtfrom which the subpoena issued. An adequate cause for failure to obey exists when a subpoena purports to require a nonparty to attend or produce ata place not within the limits provided by clause (ii) of subparagraph (c)(3)(A).

150

FORM 8PROTECTIVE ORDER IN PROCUREMENT PROTEST CASES


_____________________________,

Plaintiff,

v.

THE UNITED STATES,

Defendant.

)))))))))))

No. _________

Judge___________________

_____________________________

PROTECTIVE ORDER_____________________________

The court finds that certain information likely to be disclosed orally or in writing during the course ofthis litigation may be competition-sensitive or otherwise protectable and that entry of a Protective Order isnecessary to safeguard the confidentiality of that information. Accordingly, the parties shall comply withthe terms and conditions of this Protective Order.

I.

1. Protected Information Defined. “Protected information” as used in this order means information thatmust be protected to safeguard the competitive process, including source selection information,proprietary information, and confidential information contained in:

(a) any document (e.g., a pleading, motion, brief, notice, or discovery request or response)produced, filed, or served by a party to this litigation; or

(b) any deposition, sealed testimony or argument, declaration, or affidavit taken or providedduring this litigation.

2. Restrictions on the Use of Protected Information. Protected information may be used solely for thepurposes of this litigation and may not be given, shown, made available, discussed, or otherwiseconveyed in any form except as provided herein.

II.

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3. Individuals Permitted Access to Protected Information. Except as provided in paragraphs 7 and 8below, the only individuals who may be given access to protected information are counsel for a partyand independent consultants and experts assisting such counsel in connection with this litigation.

4. Applying for Access to Protected Information. An individual seeking access to protected informationpursuant to Appendix C, Section VI of this court’s rules must read this Protective Order; must completethe appropriate application form (Form 9—“Application for Access to Information Under ProtectiveOrder by Inside or Outside Counsel,” or Form 10—“Application for Access to Information UnderProtective Order by a Consultant or Expert”); and must file the executed application with the court.

5. Objecting to an Application for Admission. Any objection to an application for access must be filedwith the court within two (2) business days of the objecting party’s receipt of the application.

6. Receiving Access to Protected Information. If no objections have been filed by the close of the secondbusiness day after the other parties have received the application, the applicant will be granted accessto protected information without further action by the court. If any party files an objection to anapplication, access will only be granted by court order.

7. Access to Protected Information by Court, Department of Justice, and Agency Personnel. Personnelof the court, the procuring agency, and the Department of Justice are automatically subject to the termsof this Protective Order and are entitled to access to protected information without further action.

8. Access to Protected Information by Support Personnel. Paralegal, clerical, and administrative supportpersonnel assisting any counsel who has been admitted under this Protective Order may be given accessto protected information by such counsel if those personnel have first been informed by counsel of theobligations imposed by this Protective Order.

III.

9. Identifying Protected Information. Protected information may be provided only to the court and toindividuals admitted under this Protective Order and must be identified as follows:

(a) if provided in electronic form, the subject line of the electronic transmission shall read“CONTAINS PROTECTED INFORMATION”; or

(b) if provided in paper form, the document must be sealed in a parcel containing the legend“PROTECTED INFORMATION ENCLOSED” conspicuously marked on the outside.

The first page of each document containing protected information, including courtesy copies for useby the judge, must contain a banner stating “Protected Information to Be Disclosed Only inAccordance With the U.S. Court of Federal Claims Protective Order” and the portions of anydocument containing protected information must be clearly identified.

10. Filing Protected Information. Pursuant to this order, a document containing protected information maybe filed electronically under the court’s electronic case filing system using the appropriate activity listedin the “SEALED” documents menu. If filed in paper form, a document containing protectedinformation must be sealed in the manner prescribed in paragraph 9(b) and must include as anattachment to the front of the parcel a copy of the certificate of service identifying the document beingfiled.

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11. Protecting Documents Not Previously Sealed. If a party determines that a previously produced or fileddocument contains protected information, the party may give notice in writing to the court and the otherparties that the document is to be treated as protected, and thereafter the designated document must betreated in accordance with this Protective Order.

IV.

12. Redacting Protected Documents For the Public Record. (a) Initial Redactions. After filing a document containing protected information in accordance

with paragraph 10, or after later sealing a document pursuant to paragraph 11, a party mustpromptly serve on the other parties a proposed redacted version marked “Proposed RedactedVersion” in the upper right-hand corner of the first page with the claimed protectedinformation deleted.

(b) Additional Redactions. If a party seeks to include additional redactions, it must advise thefiling party of its proposed redactions within two (2) business days after receipt of theproposed redacted version. The filing party must then provide the other parties with a secondredacted version of the document clearly marked “Agreed-Upon Redacted Version” in theupper right-hand corner of the page with the additional information deleted.

(c) Final Version. At the expiration of the two-day period noted in (b) above, or after anagreement between the parties has been reached regarding additional redactions, the filingparty must file with the court the final redacted version of the document clearly marked“Redacted Version” in the upper right-hand corner of the first page. This document will beavailable to the public.

(d) Objecting to Redactions. Any party at any time may object to another party’s designation ofcertain information as protected. If the parties are unable to reach an agreement regardingredactions, the objecting party may submit the matter to the court for resolution. Until thecourt resolves the matter, the disputed information must be treated as protected.

V.

13. Copying Protected Information. No party, other than the United States, may for its own use make morethan three (3) copies of a protected document received from another party, except with the consent ofall other parties. A party may make additional copies of such documents, however, for filing with thecourt, service on the parties, or use in discovery and may also incorporate limited amounts of protectedinformation into its own documents or pleadings. All copies of such documents must be clearly labeledin the manner required by paragraph 9.

14. Waiving Protection of Information. A party may at any time waive the protection of this order withrespect to any information it has designated as protected by advising the court and the other parties inwriting and identifying with specificity the information to which this Protective Order will no longerapply.

15. Safeguarding Protected Information. Any individual admitted under this Protective Order must takeall necessary precautions to prevent disclosure of protected information, including but not limited tophysically securing, safeguarding, and restricting access to the protected information.

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16. Breach of the Protective Order. If a party discovers any breach of any provision of this ProtectiveOrder, the party must promptly report the breach to the other parties and immediately take appropriateaction to cure the violation and retrieve any protected information that may have been disclosed toindividuals not admitted under this Protective Order. The parties must reasonably cooperate indetermining the reasons for any such breach.

17. Seeking Relief From the Protective Order. Nothing contained in this order shall preclude a party fromseeking relief from this Protective Order through the filing of an appropriate motion with the courtsetting forth the basis for the relief sought.

VI.

18. Maintaining Filed Documents Under Seal. The court will maintain properly marked protecteddocuments under seal throughout this litigation.

19. Retaining Protected Information After the Termination of Litigation. Upon conclusion of this action(including any appeals and remands), the original version of the administrative record and any othermaterials that have been filed with the court under seal will be retained by the court pursuant to RCFC77.3(d). Copies of such materials may be returned by the court to the filing parties for disposition inaccordance with paragraph 20 of this Protective Order.

20. Disposing of Protected Information. Within thirty (30) days after the conclusion of this action(including any appeals and remands), each party must destroy all protected information and certify inwriting to each other party that such destruction has occurred or must return the protected informationto the parties from which the information was received. Each party may retain one copy of suchdocuments provided those documents are properly marked and secured.

IT IS SO ORDERED.

_____________________________Judge

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FORM 9APPLICATION FOR ACCESS TO INFORMATION UNDER

PROTECTIVE ORDER BY OUTSIDE OR INSIDE COUNSEL


______________________________,

Plaintiff,

v.

THE UNITED STATES,

Defendant.

)))))))))))

No. _________

Judge___________________

APPLICATION FOR ACCESS TO INFORMATION UNDERPROTECTIVE ORDER BY OUTSIDE OR INSIDE COUNSEL

1. I, ___________________________, hereby apply for access to protected information covered bythe Protective Order issued in connection with this proceeding.

2. a. I [outside counsel only] am an attorney with the law firm of ___________________________and have been retained to represent ______________________________, a party to thisproceeding.b. I [inside counsel] am in-house counsel (my title is: ________________________) for___________________________, a party to this proceeding.

3. I am [ ] am not [ ] a member of the bar of the United States Court of Federal Claims (the court).4. My professional relationship with the party I represent in this proceeding and its personnel is strictly

one of legal counsel. I am not involved in competitive decision making as discussed in U.S. Steel Corp. v.United States, 730 F.2d 1465 (Fed. Cir. 1984), for or on behalf of the party I represent, any entity that is aninterested party to this proceeding, or any other firm that might gain a competitive advantage from accessto the information disclosed under the Protective Order. I do not provide advice or participate in anydecisions of such parties in matters involving similar or corresponding information about a competitor. Thismeans that I do not, for example, provide advice concerning, or participate in decisions about, marketing oradvertising strategies, product research and development, product design or competitive structuring andcomposition of bids, offers, or proposals with respect to which the use of protected information could providea competitive advantage.

5. I [outside counsel only] identify here (by writing “none” or listing names and relevant circumstances)those attorneys in my firm who, to the best of my knowledge, cannot make the representations set forth inthe preceding paragraph:

6. I identify here (by writing “none” or listing names, position, and responsibilities) any member ofmy immediate family who is an officer or holds a management position with an interested party in theproceeding or with any other firm that might gain a competitive advantage from access to the information

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disclosed under the Protective Order._____________________________________________________________________________________

7. I identify here (by writing “none” or identifying the name of the forum, case number, date, andcircumstances) instances in which I have been denied admission to a protective order, had admissionrevoked, or have been found to have violated a protective order issued by any administrative or judicialtribunal:_____________________________________________________________________________________

8. I [inside counsel] have attached a detailed narrative providing the following information:a. my position and responsibilities as in-house counsel, including my role in providing advicein procurement-related matters;b. the person(s) to whom I report and their position(s) and responsibilities; c. the number of in-house counsel at the office in which I work and their involvement, if any,in competitive decision making and in providing advice in procurement-related matters.d. my relationship to the nearest person involved in competitive decision making (both interms of physical proximity and corporate structure); ande. measures taken to isolate me from competitive decision making and to protect against theinadvertent disclosure of protected information to persons not admitted under the ProtectiveOrder.

9. I have read the Protective Order issued by the court in this proceeding. I will comply in all respectswith that order and will abide by its terms and conditions in handling any protected information producedin connection with the proceeding.

10. I acknowledge that a violation of the terms of the Protective Order may result in the imposition ofsuch sanctions as may be deemed appropriate by the court and in possible civil and criminal liability.

* * *

By my signature, I certify that, to the best of my knowledge, the representations set forth above(including attached statements) are true and correct.

_________________________ ___________________________Signature Date Executed_________________________Typed Name and Title_________________________Telephone Number_________________________Fax Number

_________________________ ___________________________Signature of Attorney of Record Date Executed_________________________Typed Name and Title_________________________Telephone Number_________________________Fax Number

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FORM 10APPLICATION FOR ACCESS TO INFORMATION UNDER

PROTECTIVE ORDER BY EXPERT CONSULTANT OR WITNESS


______________________________,

Plaintiff,

v.

THE UNITED STATES,

Defendant.

)))))))))))

No. _________

Judge___________________

APPLICATION FOR ACCESS TO INFORMATION UNDERPROTECTIVE ORDER BY EXPERT CONSULTANT OR WITNESS

1. I, the undersigned, am a ____________________ with ________________________ and herebyapply for access to protected information covered by the Protective Order issued in connection with thisproceeding.

2. I have been retained by __________________________ and will, under the direction and controlof ____________________________, assist in the representation of __________________________in thisproceeding.

3. I hereby certify that I am not involved in competitive decision making as discussed in U.S. SteelCorp. v. United States, 730 F.2d 1465 (Fed. Cir. 1984), for or on behalf of any party to this proceeding orany other firm that might gain a competitive advantage from access to the information disclosed under theprotective order. Neither I nor my employer provides advice or participates in any decisions of such partiesin matters involving similar or corresponding information about a competitor. This means, for example, thatneither I nor my employer provides advice concerning, or participates in decisions about, marketing oradvertising strategies, product research and development, product design or competitive structuring andcomposition of bids, offers, or proposals with respect to which the use of protected information could providea competitive advantage.

4. My professional relationship with the party for whom I am retained in this proceeding and itspersonnel is strictly as a consultant on issues relevant to the proceeding. Neither I nor any member of myimmediate family holds office or a management position in any company that is a party in this proceedingor in any competitor or potential competitor of a party.

5. I have attached the following information:a. a current resume describing my education and employment experience to date;b. a list of all clients for whom I have performed work within the two years prior to the date of

this application and a brief description of the work performed;c. a statement of the services I am expected to perform in connection with this proceeding;d. a description of the financial interests that I, my spouse, and/or my family has in any entity

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that is an interested party in this proceeding or whose protected information will be reviewed;if none, I have so stated;

e. a list identifying by name of forum, case number, date, and circumstances all instances inwhich I have been granted admission or been denied admission to a protective order, had aprotective order admission revoked, or have been found to have violated a protective orderissued by an administrative or judicial tribunal; if none, I have so stated; and

f. a list of the professional associations to which I belong, including my identificationnumbers.

6. I have read a copy of the Protective Order issued by the court in this proceeding. I will comply inall respects with all terms and conditions of that order in handling any protected information produced inconnection with the proceeding. I will not disclose any protected information to any individual who has notbeen admitted under the Protective Order by the court.

7. For a period of two years after the date this application is granted, I will not engage or assist in thepreparation of a proposal to be submitted to any agency of the United States government for____________________ when I know or have reason to know that any party to this proceeding, or anysuccessor entity, will be a competitor, subcontractor, or teaming member.

8. For a period of two years after the date this application is granted, I will not engage or assist in thepreparation of a proposal or submission to_____________ nor will I have any personal involvement in anysuch activity.

9. I acknowledge that a violation of the terms of the Protective Order may result in the imposition ofsuch sanctions as may be deemed appropriate by the court and in possible civil and criminal liability.

* * *

By my signature, I certify that, to the best of my knowledge, the representations set forth above(including attached statements) are true and correct.

_________________________ ___________________________Signature Date Executed_________________________Typed Name and Title_________________________Telephone Number_________________________Fax Number

_________________________ ___________________________Signature of Attorney of Record Date Executed_________________________Typed Name and Title_________________________Telephone Number_________________________Fax Number

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FORM 11SURETY BOND FOR TEMPORARY RESTRAINING ORDER

OR PRELIMINARY INJUNCTION


______________________________,

Plaintiff,

v.

THE UNITED STATES,

Defendant.

)))))))))))

No. _________

Judge___________________

SURETY BONDFOR TEMPORARY RESTRAINING ORDER

ORPRELIMINARY INJUNCTION

Recitals

1. ______________________[name of plaintiff] has obtained from the United States Court of Federal

Claims a [Temporary Restraining Order or Preliminary Injunction] against the United States.

2. The ___________________________[Temporary Restraining Order or Preliminary Injunction] was

issued on condition that _______________[name of plaintiff] execute and file a good and sufficient bond

in the amount of $________ for the payment of any costs and damages that may be incurred or suffered by

any party who is found to have been wrongfully enjoined or restrained.

Promise to Pay

As a result of the facts just recited:

_____________[name of plaintiff] and _________[names(s) of corporate surety or sureties], which has

an office and usual place of business at _______[street address], __________[city, state, zip code], each

undertakes and promises to pay up to the sum of $_________ for any damages incurred as a result of the

__________[Temporary Restraining Order or Preliminary Injunction] if it is determined that defendant was

wrongfully enjoined or restrained. Plaintiff and surety(ies) stipulate that the damages may be ascertained

in such manner as the court shall direct. See RCFC 65.1.

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Dated:________________

For the principal:

______________________________[signature of plaintiff]

______________________________[typed name of plaintiff]

For the ________ [surety or sureties]:

______________________________[typed or printed name of surety]

By ___________________________[signature]______________________________[typed name of signer]______________________________[title of signer]______________________________[street address]______________________________[city, state, zip code]

[Repeat signature block for each additional surety.]

APPROVED: ___________________, 20___

___________________, Clerk, United States Court of Federal Claims

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FORM 12SUPERSEDEAS BOND (SURETY)


______________________________,

Plaintiff,

v.

THE UNITED STATES,

Defendant.

)))))))))))

No. _________

Judge___________________

SUPERSEDEAS BOND (SURETY)

Recitals

1. A judgment was entered in the above-captioned case on ________ [date] in the United States Court

of Federal Claims against Appellant, ___________ [name of appellant] and in favor of _______ [name(s)

of appellee(s)].

2. _________[name of appellant] has filed a timely notice of appeal of this judgment to the United

States Court of Appeals for the Federal Circuit and desires to suspend enforcement of the judgment pending

determination of the appeal.

Promise to Pay

As a result of the facts just recited:

________________[name of appellant] and ________[names of corporate surety or sureties], which

has an office and usual place of business at _________[street address], _______[city, state, zip code], each

undertakes and promises to pay to __________[name(s) of appellee(s)] all damages, costs, and interest that

may be awarded to _______[him or her or it or them] following the appeal of this matter up to the sum of

$__________ if:

a. the judgment so appealed is affirmed:

b. the appeal is dismissed; or

c. __________________[name of appellant] fails to pay promptly all sums awarded against _____[him

or her or it or them] in or following the appeal in this action, including any costs that the court of appeals

161

may award if the judgment is modified.

If ________[name of appellant] fulfills the obligations on appeal set forth above, then this obligation

will become void. Otherwise, the obligation will remain in full force and effect.

Dated:________________

For the principal:

__________________________[signature of plaintiff]

__________________________[typed name of plaintiff]

For the _______________ [surety or sureties]:

______________________________[typed or printed name of surety]

By ___________________________[signature]______________________________[typed name of signer]______________________________[title of signer]______________________________[street address]______________________________[city, state, zip code]

[Repeat signature block for each additional surety.]

APPROVED: ___________________, 20___

___________________, Clerk, United States Court of Federal Claims

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FORM 13BOND WITH COLLATERAL FOR

TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION


______________________________,

Plaintiff,

v.

THE UNITED STATES,

Defendant.

)))))))))))

No. _________

Judge___________________

BOND WITH COLLATERAL FORTEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION

Recitals

1. The above-named plaintiff(s) has commenced an action in the above-entitled court against the

defendant and has made application to the court for a Temporary Restraining Order or Preliminary Injunction

against the defendant, enjoining and restraining the defendant, as well as the defendant’s agents or

employees, from the commission of certain acts, particularly set forth and described in the complaint, and

2. The plaintiff(s) desires to give an undertaking in an amount deemed proper by the court, that is,

$_________, to secure the payment of any costs and damages, including reasonable attorney’s fees to be

fixed by the court that may be incurred or suffered by the defendant if the restraining order or preliminary

injunction should prove to have been improvidently issued.

Promise to Pay

The undersigned surety (jointly and severally, if more than one) obligates itself to the defendant as

provided in RCFC 65 and 65.1, in the sum of $_______ on the condition that if the defendant ultimately

prevails in this action and suffers damages on account of the Temporary Restraining Order or Preliminary

Injunction, they will pay those damages up to and including the maximum amount of this Bond if the court

determines that the Temporary Restraining Order or Preliminary Injunction was improperly or improvidently

granted, or the defendant was improperly or wrongfully restrained by that Order. The undersigned stipulates

that the damages may be ascertained in such manner as the court shall direct and that, on dissolving the

Marketable public securities of the United States payable to the bearer may also be utilized as1

collateral, but the Bond must be accompanied by the appropriate power of attorney.

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injunction, the court may give judgment thereon against the plaintiff for said damages in the order dissolving

the injunction, or in a further order after ascertainment of the amount of said damages.

The above-named plaintiff(s) as security for the Bond hereby deposits with the clerk of said court, the

sum of $_____________ (either cash or certified check made payable to the U.S. Treasury), which sum may1

be utilized in payment of any damages which by court order may be levied against the plaintiff in this action.

DATED:_______________, 20__

By: _______________________________[SEAL]

____________________________________[SEAL]

(Plaintiffs)

APPROVED: ______________________, 20__

______________________, Clerk, United States Court of Federal Claims

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS · 2009-07-15 · authorizes the United States...

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