RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS€¦ · · 2013-07-24VACCINE RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS ... States district courts and the United States

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

As amended through July 15, 2011

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TABLE OF CONTENTS

TITLE I. SCOPE OF RULES; FORM OF ACTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Rule 1. Scope and Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Rule 2. One Form of Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

TITLE II. COMMENCING AN ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS, AND ORDERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Rule 3. Commencing an Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Rule 3.1. Transfers and Referrals.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Rule 4. Serving a Complaint on the United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7Rule 4.1. Serving an Order in a Contempt Proceeding. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7Rule 5. Serving and Filing Pleadings and Other Papers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8Rule 5.1. Constitutional Challenge to a Statute—Notice, Certification, and Intervention

[Not used.].. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10Rule 5.2. Privacy Protection For Filings Made with the Court . . . . . . . . . . . . . . . . . . . . . . . . . 10Rule 5.3. Proof of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11Rule 5.4. Contents and Length of a Brief or Memorandum.. . . . . . . . . . . . . . . . . . . . . . . . . . . 12Rule 5.5. Format of Filings and Required Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14Rule 6. Computing and Extending Time; Time for Motion Papers. . . . . . . . . . . . . . . . . . . . 15Rule 6.1 Motion for an Enlargement of Time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

TITLE III. PLEADINGS AND MOTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18Rule 7. Pleadings Allowed; Form of Motions and Other Papers. . . . . . . . . . . . . . . . . . . . . . 18Rule 7.1. Disclosure Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18Rule 7.2. Time for Filing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18Rule 8. General Rules of Pleading. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19Rule 9. Pleading Special Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20Rule 10. Form of Pleadings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court;

Sanctions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment

on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing.. . 24Rule 13. Counterclaim.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26Rule 14. Third-Party Practice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27Rule 15. Amended and Supplemental Pleadings.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29Rule 16. Pretrial Conferences; Scheduling; Management.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

TITLE IV. PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34Rule 17. Plaintiff and Defendant; Capacity.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34Rule 18. Joinder of Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35Rule 19. Required Joinder of Parties.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35Rule 20. Permissive Joinder of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36Rule 21. Misjoinder and Nonjoinder of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36Rule 22. Interpleader [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36Rule 23. Class Actions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37Rule 23.1. Derivative Actions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

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Rule 23.2. Actions Relating to Unincorporated Associations [Not used.]. . . . . . . . . . . . . . . . . 41Rule 24. Intervention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41Rule 25. Substitution of Parties.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

TITLE V. DISCLOSURES AND DISCOVERY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43Rule 26. Duty to Disclose; General Provisions Governing Discovery. . . . . . . . . . . . . . . . . . . 43Rule 27. Depositions to Perpetuate Testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49Rule 28. Persons Before Whom Depositions May Be Taken. . . . . . . . . . . . . . . . . . . . . . . . . . 50Rule 29. Stipulations About Discovery Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51Rule 30. Depositions by Oral Examination.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51Rule 31. Depositions by Written Questions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55Rule 32. Using Depositions in Court Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56Rule 33. Interrogatories to Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58Rule 34. Producing Documents, Electronically Stored Information, and Tangible

Things, or Entering onto Land, for Inspection and Other Purposes. . . . . . . . . . . . . 59Rule 35. Physical and Mental Examinations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60Rule 36. Requests for Admission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions. . . . . . . . . . . 62

TITLE VI. TRIALS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66Rule 38. Right to a Jury Trial; Demand [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66Rule 39. Trial by Jury or by the Court [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66Rule 40. Scheduling Cases for Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66Rule 40.1. Assigning and Transferring Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66Rule 40.2. Related Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66Rule 40.3. Complaints Against Judges.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68Rule 41. Dismissal of Actions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69Rule 42. Consolidation; Separate Trials. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70Rule 42.1. Motion to Consolidate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70Rule 43. Taking Testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71Rule 44. Proving an Official Record. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71Rule 44.1. Determining Foreign Law.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72Rule 45. Subpoena.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72Rule 46. Objecting to a Ruling or Order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76Rule 47. Selecting Jurors [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76Rule 48. Number of Jurors; Verdict [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76Rule 49. Special Verdict; General Verdict and Questions [Not used.]. . . . . . . . . . . . . . . . . . . 76Rule 50. Judgment as a Matter of Law in a Jury Trial; Related Motion for a

New Trial; Conditional Ruling [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76Rule 51. Instructions to the Jury; Objections; Preserving a Claim of Error [Not used.].. . . . . 76Rule 52. Findings and Conclusions by the Court; Judgment on Partial Findings.. . . . . . . . . . 76Rule 52.1. Administrative Record. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77Rule 52.2. Remanding a Case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78Rule 53. Masters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

TITLE VII. JUDGMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82Rule 54. Judgment; Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

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Rule 55. Default; Default Judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84Rule 56. Summary Judgment.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84Rule 56.1 Review of a Decision on the Basis of the Administrative Record

[Abrogated (eff. June 20, 2006).]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86Rule 56.2 Remanding a Case [Renumbered as RCFC 52.2 (eff. June 20, 2006).]. . . . . . . . . . . 86Rule 57. Declaratory Judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86Rule 58. Entering Judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86Rule 58.1. Notice of Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87Rule 59. New Trial; Reconsideration; Altering or Amending a Judgment . . . . . . . . . . . . . . . 87Rule 60. Relief From a Judgment or Order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89Rule 61. Harmless Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89Rule 62. Stay of Proceedings to Enforce a Judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90Rule 62.1 Indicative Ruling on Motion for Relief That is Barred by a Pending Appeal. . . . . . 91Rule 63. Judge’s Inability to Proceed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

TITLE VIII. PROVISIONAL AND FINAL REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92Rule 64. Seizing a Person or Property [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92Rule 65. Injunctions and Restraining Orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92Rule 65.1. Proceedings Against a Surety. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93Rule 66. Receivers [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93Rule 67. Deposit into Court [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93Rule 68. Offer of Judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93Rule 69. Execution [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94Rule 70. Enforcing a Judgment for a Specific Act [Not used.].. . . . . . . . . . . . . . . . . . . . . . . . 94Rule 71. Enforcing Relief For or Against a Nonparty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

TITLE IX. SPECIAL PROCEEDINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95Rule 71.1. Condemning Real or Personal Property [Not used.].. . . . . . . . . . . . . . . . . . . . . . . . . 95Rule 72. Magistrate Judges: Pretrial Order [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95Rule 73. Magistrate Judges: Trial by Consent; Appeal [Not used.]. . . . . . . . . . . . . . . . . . . . . 95Rule 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.].. . . . . . . . . . . . 95Rule 75. Proceedings On Appeal From Magistrate Judge to District Judge

Under Rule 73(d) [Abrogated in FRCP.].. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95Rule 76. Judgment of the District Judge on the Appeal Under Rule 73(d) and Costs

[Abrogated in FRCP.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

TITLE X. COURT AND CLERK: CONDUCTING BUSINESS; ISSUING ORDERS.. . . . . . 96Rule 77. Conducting Business; Clerk’s Authority; Notice of an Order or Judgment. . . . . . . . 96Rule 77.1. Business Hours, Scheduling, and Court Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97Rule 77.2. Authorization to Act on Certain Motions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98Rule 77.3. Withdrawing, Disposing of, and Unsealing Papers and Exhibits. . . . . . . . . . . . . . . . 98Rule 78. Hearing Motions; Submission on Briefs [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . 99Rule 79. Records Kept by the Clerk. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99Rule 80. Stenographic Transcript as Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100Rule 80.1. Court Reporters.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

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TITLE XI. GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103Rule 81. Applicability of the Rules in General; Removed Actions [Not used.]. . . . . . . . . . . 103Rule 82. Jurisdiction and Venue Unaffected [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . 103Rule 83. Rules by Court of Federal Claims; Judge’s Directives.. . . . . . . . . . . . . . . . . . . . . . 103Rule 83.1. Attorneys.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103Rule 83.2. Attorney Discipline.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108Rule 83.3. Legal Assistance by a Law Student. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115Rule 83.4. Advisory Council. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117Rule 84. Forms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117Rule 85. Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118Rule 86. Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

APPENDIX ACASE MANAGEMENT PROCEDURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

APPENDIX BVACCINE RULES OF THE UNITED STATES COURTOF FEDERAL CLAIMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125

SUPPLEMENT TO VACCINE RULES: ELECTRONIC CASE FILING PROCEDURE IN VACCINE ACT CASES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

APPENDIX CPROCEDURE IN PROCUREMENT PROTEST CASESPURSUANT TO 28 U.S.C. § 1491(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147

APPENDIX DPROCEDURE IN CONGRESSIONAL REFERENCE CASES. . . . . . . . . . . . . . . . . . . . . . . . 153

APPENDIX EELECTRONIC CASE FILING PROCEDURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

APPENDIX FPROCEDURE IN TAX PARTNERSHIP CASES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

APPENDIX GPROCEDURE IN INDIAN CLAIMS COMMISSION CASES. . . . . . . . . . . . . . . . . . . . . . . . . 167

APPENDIX HPROCEDURE FOR ALTERNATIVE DISPUTE RESOLUTION. . . . . . . . . . . . . . . . . . . . . . 168

APPENDIX IPROCEDURE IN CARRIER CASES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170

APPENDIX OF FORMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177FORM 1

ADMISSION INSTRUCTIONS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

FORM 2COVER SHEET. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179

FORM 3AREPORTER FORM [Withdrawn.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182

FORM 3BCERTIFICATE OF REPORTER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183

FORM 3CCERTIFICATE OF REPORTER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184

FORM 4BILL OF COSTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185

FORM 5EQUAL ACCESS TO JUSTICE ACT FORM.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 186

FORM 6ASUBPOENA TO APPEAR AND TESTIFY AT A HEARING OR TRIAL. . . . . . 188

FORM 6BSUBPOENA TO TESTIFY AT A DEPOSITION OR TO PRODUCE DOCUMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191

FORM 6CSUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTSOR TO PERMIT INSPECTION OF PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . 194

FORM 7CAPTION OF ALL FILINGS IN VACCINE CASES. . . . . . . . . . . . . . . . . . . . . . . 197

FORM 7ASUBPOENA IN VACCINE CASES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198

FORM 8PROTECTIVE ORDER IN PROCUREMENT PROTEST CASES. . . . . . . . . . . . 201

FORM 9APPLICATION FOR ACCESS TO INFORMATION UNDERPROTECTIVE ORDER BY OUTSIDE OR INSIDE COUNSEL. . . . . . . . . . . . . . 205

FORM 10APPLICATION FOR ACCESS TO INFORMATION UNDERPROTECTIVE ORDER BY EXPERT CONSULTANT OR WITNESS.. . . . . . . . 207

FORM 11SURETY BOND FOR TEMPORARY RESTRAINING ORDEROR PRELIMINARY INJUNCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209

FORM 12SUPERSEDEAS BOND (SURETY). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211

FORM 13BOND WITH COLLATERAL FORTEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION.. . 213

FORM 14ORDER IMPLEMENTING FED. R. EVID. 502(d). . . . . . . . . . . . . . . . . . . . . . . . 215

v

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 July 15, 2011

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:

http://www.uscfc.uscourts.gov

2

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

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).

3

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;amending fee schedule).

51 Fed. Cl. XIII–CXCIV (2002) (adopting revised Rules of the United States Court ofFederal 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, citations 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 forElectronic Case 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 Ato H, and Forms 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).

* * * * *

After 2006, revisions to the court’s rules no longer appear in the bound volumes of the FederalClaims Reporter. Access to post-2006 rules revisions is, however, available on the court’s website, atwww.uscfc.uscourts.gov, under “Rules Archives.” These revisions are listed as follows:

November 15, 2007 (renumbering Rules 5.2–5.4; amending Rules 5, 16, 26, 33, 34, 37, 45,58, 77.3, and 80, and Appendices A and C; adopting new Appendix E; abrogatingAppendix G; redesignating former Appendix E as Appendix I).

April 10, 2008 (adopting revised rules governing complaints against judges as promulgatedby the Judicial Conference of the United States).

November 3, 2008 (adopting changes in rule structure and word usage that were introduced asrestyling changes into the Federal Rules of Civil Procedure on December 1, 2007; introducing minor


http://www.uscfc.uscourts.gov,

4

changes in scope or content (including changes to conform to the FRCP) into Rules 4.1, 5, 5.5, 7,9, 12, 23, 25, and 40.2; and adding new Rules 5.2 and 71, each reflecting the language of its FRCPcounterpart).

July 13, 2009 (amending Rule 77.3(a); adopting revised Rule 83.2; introducing new subpoena forms(Forms 6A, B, and C); restyling Appendix B (Vaccine Rules) to conform to the restyling changesthat were introduced into the court’s rules on November 3, 2008; and amending Vaccine Rules 13,17, 34, and 36).

January 11, 2010 (adopting substantive changes to Rules 8, 13, 15, and new Rule 62.1in accordancewith parallel changes to the Federal Rules of Civil Procedure that became effective December 1,2009; adopting time-computation changes to Rules 6, 12, 32, 42, 52, 53, 55, 59, 62, 65, 68, and 83.1and Appendices B, D, and F consistent with amendments to the Federal Rules of Civil Procedure thatbecame effective December 1, 2009; and amending Rules 14, 23, 32, 54, and 83.1, and VaccineRule 5).

July 15, 2011 (amending RCFC 3.1, 4, 5.5, 15, 26, 56, 59, 83.1, and 83.2; amending VaccineRules 2, 16, and 17; amending Appendices A, C, and E; and introducing new Supplement toAppendix B (“Electronic Case Filing Procedure in Vaccine Act Cases”) and new Form 14 (“OrderImplementing Fed. R. Evid. 502(d)”).

5 RCFC 1 and 2

TITLE I. SCOPE OF RULES; FORM OFACTION

Rule 1. Scope and PurposeThese rules govern the procedure in the UnitedStates Court of Federal Claims in all suits. Theyshould be construed and administered to secure thejust, speedy, and inexpensive determination ofevery action and proceeding.

(As revised and reissued May 1, 2002; as amendedNov. 3, 2008.)

Rules Committee Notes2002 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.

2008 AmendmentThe language of RCFC 1 has been amended to

conform to the general restyling of the FRCP.

Rule 2. One Form of ActionThere is one form of action—the civil action.



RCFC 2 is identical to its FRCP counterpart.



RCFC 3 and 3.1 6

TITLE II. COMMENCING AN ACTION;SERVICE OF PROCESS,PLEADINGS, MOTIONS, ANDORDERS

Rule 3. Commencing an ActionA civil action is commenced by filing a complaintwith the court.



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).

2008 AmendmentThe caption of RCFC 3 has been amended to

conform to the general restyling of the FRCP. In addition, the parenthetical reference to

RCFC 40.2(a) (“Related Cases”) that was includedin the former version of RCFC 3 has been deletedas unnecessary.

Rule 3.1. Transfers and Referrals(a) Transfer From Another Court.

(1) Filing Requirements. When the transferof a case from another court is permittedby law, including compliance with 28U.S.C. §1292(d)(4)(B), the case will befiled in this court when the clerkreceives:(A) a certified copy of the docket or

record made in the other court; and

(B) an order granting the transfer.(2) Notice of Filing. After a case is filed in

this court, the clerk must serve theparties with a notice of the filing asrequired by RCFC 5.

(3) Filing Fee. No filing fee is required inthis court when all filing fees required inthe other court are shown to have beenpaid.

(4) Amended Complaint. Within 28 daysafter service of the notice of filing, theplaintiff must file an amended complaint,conforming to the requirements ofRCFC 5.5(d)(1) and setting forth theclaim or claims transferred.

(5) Serving an Amended Complaint. Theclerk must serve the amended complainton the United States in accordance withRCFC 4.

(b) Referral of a Case by the ComptrollerGeneral. (1) Serving a Notice. When a case is

referred to the court by the ComptrollerGeneral, the clerk must serve a notice,under RCFC 5:(A) on each person whose name and

address are shown by the paperstransmitted and who appears to havean interest in the subject matter ofthe reference; and

(B) on the Attorney General. (2) Contents of the Notice; Time for a

Response. The notice required by thissubdivision must:(A) indicate that the reference has been

filed; (B) explain that the person notified

appears to have an interest in thesubject matter of the reference; and

(C) advise that a complaint setting forthany claim of such person must befiled within 90 days.

(3) If a Party Fails to Appear. If nointerested person files a complaint withinthe time specified in the notice served bythe clerk, the case will be submitted to

7 RCFC 4 and 4.1

the court upon the papers filed and uponsuch evidence, if any, as may beproduced by the Attorney General.

(As revised and reissued May 1, 2002; as amendedNov. 3, 2008, July 15, 2011.)


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.

2008 AmendmentThe language of RCFC 3.1 has been amended

to conform to the general restyling of the FRCP. In addition, the restyled rule omits as

unnecessary the former provision specifying thefiling of “8 copies of the complaint filed in theother court” and the instruction that after the filingof the complaint, or after referral of a case by theComptroller General, “further proceedings will begoverned by this court’s rules.”

2011 AmendmentRCFC 3.1(a)(4) has been amended to adopt

the revised filing requirements of RCFC 5.5(d)(1)specifying that a plaintiff must file 2 copies of thecomplaint and, except a plaintiff appearing pro se,one copy of the complaint in electronic form usinga disc in CD-ROM format when the complaintexceeds 20 pages.

Rule 4. Serving a Complaint on the UnitedStates

(a) Manner of Service. To serve a complaint onthe United States, the clerk must deliver onecopy of the complaint to the Attorney Generalor to an agent designated by authority of theAttorney General by hand delivery or bysending it to an electronic address designatedby the Attorney General for this purpose.

(b) Proof of Service. When serving a complaint,the clerk must enter the fact of service on thedocket, and this entry will be prima facie

proof of service.(c) Date of Service. The date of service made is

the date of filing with the clerk.

(As revised and reissued May 1, 2002; as amendedNov. 3, 2008, July 15, 2011.)


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).



2011 AmendmentRCFC 4(a) has been amended to permit

service of a complaint on the United States by theclerk’s delivery of one copy of the complaint (inlieu of the formerly required 5 copies) “by handdelivery or by sending it to an electronic addressdesignated by the Attorney General for thispurpose.”

Rule 4.1. Serving an Order in a ContemptProceeding

(a) Order Initiating a Contempt Proceeding. (1) In General. An order initiating a

contempt proceeding against a person orentity other than a party must be servedby a United States marshal or deputymarshal or by a person speciallyappointed by the court. A personspecially appointed for that purposeshould make service as provided for inFRCP 4(l).

(2) Proof of Service. Proof of service mustbe made in accordance withRCFC 45(b)(4).

RCFC 5 8

(b) All Other Orders Related to a ContemptProceeding. All other orders related to acontempt proceeding must be served either:(1) in the manner prescribed by RCFC 4, if

against an agent of the United States; or(2) in the manner prescribed by RCFC 5, if

against a plaintiff, a plaintiff’srepresentative, or a nonparty.



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 specifiedin FRCP 4.1, which requires that service ofprocess, 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).


to conform to the general restyling of the FRCP. In addition, subdivision (a)(1) has been

changed in two respects. First, the phrase “orentity” has been added to make clear that theservice requirements applicable to an orderinitiating a contempt proceeding against a nonpartyapply to “a person or entity other than a party.”Second, the phrase “shall deliver a copy of theorder to the person named therein” has beenomitted in favor of the following new sentence: “Aperson specially appointed for that purpose shouldmake service as provided for in FRCP 4(l).” Noother substantive changes are intended.

Rule 5. Serving and Filing Pleadings andOther Papers

(a) Service: When Required. (1) In General. Unless these rules provide

otherwise, each of the following papersmust be served on every party:(A) an order stating that service is

required; (B) a pleading filed after the original

complaint; (C) a discovery paper required to be

served on a party, unless the courtorders otherwise;

(D) a written motion, except one thatmay be heard ex parte; and

(E) a written notice, appearance,demand, or offer of judgment, orany similar paper.

(2) If a Party Fails to Appear. No service is

9 RCFC 5 (cont.)

required on a party who is in default forfailing to appear. But a pleading thatasserts a new claim for relief againstsuch a party must be served on that partyunder RCFC 4.

(3) Seizing Property. [Not used.] (b) Service: How Made.

(1) Serving an Attorney. If a party isrepresented by an attorney, service underthis rule must be made on the attorneyunless the court orders service on theparty.

(2) Service in General. A paper is servedunder this rule by:(A) handing it to the person;(B) leaving it:

(i) at the person’s office with aclerk or other person in chargeor, if no one is in charge, in aconspicuous place in theoffice; or

(ii) if the person has no office orthe office is closed, at theperson’s dwelling or usualplace of abode with someoneof suitable age and discretionwho resides there;

(C) mailing it to the person’s last knownaddress—in which event service iscomplete upon mailing;

(D) leaving it with the court clerk if theperson has no known address;

(E) sending it by electronic means if theperson consented in writing—inwhich event service is completeupon transmission, but is noteffective if the serving party learnsthat it did not reach the person to beserved; or

(F) delivering it by any other meansthat the person consented to inwriting—in which event service iscomplete when the person makingservice delivers it to the agencydesignated to make delivery.

(3) Using Court Facilities. [Not used.]

(c) Serving Numerous Defendants. [Not used.](d) Filing.

(1) Required Filings; Certificate of Service.Any paper after the complaint that isrequired to be served—together with acertificate of service—must be filedwithin a reasonable time after service.But disclosures under RCFC 26(a)(1) or(2) and the following discovery requestsand responses must not be filed until theyare used in the proceeding or the courtorders filing: depositions, interrogatories,requests for documents or tangible thingsor to permit entry onto land, and requestsfor admission.

(2) How Filing Is Made—In General. Apaper is filed by delivering it: (A) to the clerk; or(B) to a judge who agrees to accept it

for filing, and who must then notethe filing date on the paper andpromptly send it to the clerk.

(3) Electronic Filing. The court requiresfiling by electronic means, subject toreasonable exceptions, as provided inAppendix E to these rules. A paper filedelectronically in compliance withAppendix E is a written paper forpurposes of these rules.

(4) Acceptance by the Clerk. The clerkmust not refuse to file a paper solelybecause it is not in the form prescribedby these rules.

(As revised and reissued May 1, 2002; as amendedNov. 15, 2007, Nov. 3, 2008.)


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 organization

RCFC 5.1 and 5.2 10

and 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 requirecounsel’s correction of the papers’ defects.

Finally, former subdivision (e), titled “Proofof 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 Amendment

RCFC 5 has been amended to reflect thecourt’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).


conform to the general restyling of the FRCP. In addition, the phrase “except one that may

be heard ex parte” has been added to RCFC5(a)(1)(D) to conform to the FRCP.

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

Rule 5.2. Privacy Protection For Filings Madewith the Court

(a) Redacted Filings. Unless the court ordersotherwise, in an electronic or paper filing withthe court that contains an individual’s social-security number, taxpayer-identificationnumber, or birth date, the name of anindividual known to be a minor, or a financial-account number, a party or nonparty makingthe filing may include only:(1) the last four digits of the social-security

number and taxpayer-identificationnumber;

(2) the year of the individual’s birth;(3) the minor’s initials; and(4) the last four digits of the financial-

account number.(b) Exemptions from the Redaction

Requirement. The redaction requirementdoes not apply to the following:(1) a financial-account number that

identifies the property allegedly subjectto forfeiture in a forfeiture proceeding;

(2) the record of an administrative or agencyproceeding;

(3) the official record of a state-courtproceeding;

(4) the record of a court or tribunal, if thatrecord was not subject to the redaction

11 RCFC 5.3

requirement when originally filed; and(5) a filing covered by RCFC 5.2(d).

(c) Limitations on Remote Access to ElectronicFiles; Social-Security Appeals andImmigration Cases. [Not used.]

(d) Filings Made Under Seal. The court mayorder that a filing be made under seal withoutredaction. The court may later unseal thefiling or order the person who made the filingto file a redacted version for the public record.

(e) Protective Orders. For good cause, the courtmay by order in a case:(1) require redaction of additional

information; or (2) limit or prohibit a nonparty’s remote

electronic access to a document filedwith the court.

(f) Option for Additional Unredacted FilingUnder Seal. A person making a redactedfiling may also file an unredacted copy underseal. The court must retain the unredactedcopy as part of the record.

(g) Option for Filing a Reference List. A filingthat contains redacted information may befiled together with a reference list thatidentifies each item of redacted informationand specifies an appropriate identifier thatuniquely corresponds to each item listed. Thelist must be filed under seal and may beamended as of right. Any reference in thecase to a listed identifier will be construed torefer to the corresponding item ofinformation.

(h) Waiver of Protection of Identifiers. Aperson waives the protection of RCFC 5.2(a)as to the person’s own information by filing itwithout redaction and not under seal.

(Added Nov. 3, 2008.)

Rules Committee Note2008 Adoption

New RCFC 5.2 has been added to correspondto the adoption of the same rule in the FRCP(which became effective December 1, 2007). (Theredaction of personal information as addressed in

RCFC 5.2 also appears in Appendix E (“ElectronicCase Filing Procedure”), paragraph 26 (“PersonalInformation”).)

Rule 5.3. Proof of Service (a) In General. Service is made by the party,

attorney of record, or any other person actingunder the attorney of record’s direction byexecuting a certificate of service containingthe following information:(1) the day and manner of service;(2) the person or entity served; and(3) the method of service employed, e.g., in

person, by mail, or by electronic or othermeans.

(b) Attaching the Certificate of Service. Thecertificate of service must be attached to theend of any original document, including anappendix, and to any copies of that document.

(c) Amending the Certificate of Service. Thecertificate of service may be amended orsupplied to the court at any time unless doingso would result in material prejudice to thesubstantial rights of any party.

(As revised and reissued May 1, 2002; asrenumbered Nov. 15, 2007; as amended Nov. 3,2008.)


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.


to conform to the general restyling of the FRCP. RCFC 5.3 formerly appeared in these rules as

RCFC 5.4 12

RCFC 5.2 and has been renumbered toaccommodate the court’s adoption of FRCP 5.2(which became effective December 1, 2007) and topreserve the consistency in numbering systemsbetween the court’s rules and the FRCP.

Rule 5.4. Contents and Length of a Brief orMemorandum

(a) Contents. (1) In General. A brief or memorandum

must be compact, concise, logicallyarranged, and free of burdensome,irrelevant, immaterial, and scandalousmatter. The court may disregard a briefor memorandum that fails to comply withthis rule.

(2) Initial Brief or Memorandum. Exceptin a brief or memorandum of 10 pages orless or in pretrial findings underAppendix A, the first brief ormemorandum must contain the followingitems, arranged under proper headingsand in the following order:(A) a table of contents, including the

specific contents of any appendix orappendices to the brief ormemorandum, listing a descriptionof every item or exhibit beingreproduced in the appendix and thepage number at which the item orexhibit appears;

(B) a table of cited constitutionalprovisions, treaties, statutes,regulations, and cases, giving thevolume and page number of theedition where each may be found(using the United States ClaimsCourt Reporter or the FederalClaims Reporter for all publishedUnited States Claims Court andUnited States Court of FederalClaims orders and opinions) andarranging the cases in alphabeticalorder;

(C) a concise statement of each questionpresented;

(D) a concise statement of the case,making reference to specificfindings, stipulations of fact, orother pertinent portions of therecord and setting out verbatim thepertinent portions of the applicableconstitutional provisions, treaties,statutes, regulations, and texts of alladministrative decisions directlyinvolved in the case (unlesspreviously reproduced in or as anexhibit to the complaint);

(E) a clear statement of the argument,setting forth the points of fact andlaw being presented and theauthorities relied upon;

(F) a concise conclusion, indicating therelief sought; and

(G) any appendix to the brief orm e m o r a n d u m , n u m b e r e dconsecutively within itself to enablethe court to find and read thematerial more easily and, if set forthin a volume separate from the briefor memorandum, containing a tableof contents with a description ofevery item or exhibit beingreproduced and the page number atwhich the item or exhibit appears.

(3) Opposing Brief or Memorandum. Anopposing or answering brief mustconform to the requirements set forth inRCFC 5.4(a)(2), except that the itemsreferred to in 5.4(a)(2)(C) and (D) neednot be included unless the party isdissatisfied with the other side’spresentation.

(4) Reply Brief or Memorandum. A replybrief or memorandum must conform tothe requirements of RCFC 5.4(a)(3).

(5) Cross-Motions. (A) Initial Motion. Any cross-motion

must:(i) conform to the requirements of

RCFC 5.4(a)(3);(ii) be contained in the same

13 RCFC 5.4 (cont.)

document as the response tothe original motion.

(B) Response. A response to a cross-motion must be contained in thesame document as the reply to theoriginal motion.

(b) Length.(1) Initial Brief or Memorandum. Except

by leave of the court on motion, a party’sinitial brief or memorandum must notexceed 40 pages (50 pages for a cross-movant), not including:(A) the table of contents;(B) the list of citations to constitutional

provisions, treaties, statutes,regulations, and cases; and

(C) any appendix setting out thepe r t inent por t ion of anyconstitutional provisions, treaties,statutes, regulations, agency andboard decisions, court decisions,excerpts from transcripts oftestimony, and documentaryexhibits.

(2) Reply Brief or Memorandum. Exceptby leave of the court on motion, a replybrief or memorandum must not exceed20 pages (30 pages when a response to amotion is included).

(3) Relying on a Previously Filed Brief orMemorandum. A party must notincorporate a brief or memorandum byreference; the court will disregard anysuch incorporation. To rely upon apreviously filed brief or memorandum, aparty must:(A) reproduce the brief or memorandum

(or, when appropriate, the selectedexcerpts of such document) in anappendix;

(B) identify the total number of pagesconsidered relevant in a footnoteincluded on the first page of thebrief or memorandum; and

(C) include the number of pagesidentified when calculating the

maximum allowable pages set forthin RCFC 5.4(b)(1) and (2).

(As revised and reissued May 1, 2002; asrenumbered Nov. 15, 2007; as amended Nov. 3,2008.)


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

2007 AmendmentRCFC 5.3 formerly appeared in these rules as

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.


to conform to the general restyling of the FRCP. In addition, to improve organizational

structure, the subdivision dealing with the contentsof cross-motions, formerly included in these rulesas RCFC 7.2(e) (“Time for Filing”), has beenincluded as paragraph 5 to RCFC 5.4(a).

RCFC 5.4 formerly appeared in these rules as

RCFC 5.5 14

RCFC 5.3 and has been renumbered toaccommodate the court’s adoption of FRCP 5.2(which became effective December 1, 2007) and topreserve the consistency in numbering systemsbetween the court’s rules and the FRCP.

Rule 5.5. Format of Filings and RequiredInformation

(a) In General. All papers filed with the clerk,and, where applicable, all documents filedelectronically, must conform to therequirements of this rule.

(b) Duplication. Any method of duplicationmust produce clear black images on whitepaper and must conform to the requirementsof RCFC 5.5(c).

(c) Size and Form. (1) Paper Size and Type. All papers filed

with the clerk:(A) must be printed on pages not

exceeding 8 1/2 by 11 inches; (B) must contain type matter of letter

quality, except for those papersincluded as exhibits; and

(C) must be of sufficient quality that thetyped material does not bleedthrough the page.

(2) Type Size. The type size for text andfootnotes must be no smaller than 12point.

(3) Margins. Margins must not be less than1 inch on each side.

(4) Spacing. Text must be double spaced,except that quoted and indented materialand footnotes may be single spaced.

(5) Binding. A paper filing of 50 or fewerpages must be stapled in the upperlefthand corner. A paper filingexceeding 50 pages must be bound orattached along the entire lefthand marginin book form and must have legiblemargins.

(6) Numbering. All pages, includingappendices, must be numbered in largedistinct type that appears in the center ofthe bottom margin of the page.

(d) Number of Copies. (1) Complaint.

(A) Paper Form. Plaintiff must file anoriginal and 2 copies of thecomplaint, attaching a completedcover sheet to the original (shown inForm 2 of the Appendix of Forms).

(B) Electronic Copy. If the complaintexceeds 20 pages and plaintiff is notappearing pro se pursuant to RCFC83.1, plaintiff must also file onecopy of the complaint in electronicform using a disc in CD-ROMformat.

(2) Subsequent Filings. Except in anelectronic case under Appendix E or inan appeal under RCFC 58.1, a party mustfile an original and 2 copies of any filing.

(3) Filings in a Congressional ReferenceCase. In a congressional reference case,a party must file an original and 4 copiesof any filing.

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

(f) Electronic Mail Address and Telephoneand Facsimile Numbers. The electronic mailaddress and telephone and facsimile numbers(including area code) of the attorney of recordmust appear directly below the signature lineof every filing.

(g) Name of Judge. In all filings other than thecomplaint, the name of the judge assigned tothe case must be included directly below thedocket number.

(h) Bid Protest Cases. The words “Bid Protest”must be included in the caption of all filingsdirectly below the name of the court.

(As revised and reissued May 1, 2002; as amendedJuly 1, 2004; as renumbered Nov. 15, 2007; asamended Nov. 3, 2008, July 15, 2011.)


New RCFC 5.3 has no FRCP counterpart.The rule formerly appeared in these rules as RCFC

15 RCFC 6

82 and 83. The consolidation and renumbering ofRCFC 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.

2007 Amendment

RCFC 5.4 formerly appeared in these rules asRCFC 5.3 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.


to conform to the general restyling of the FRCP. In addition, language has been added to clarify

that the rule’s requirements extend to all filings,whether in paper or electronic form, except asspecifically noted.

Finally, the sentences “Such pages need not bejustified on the right margin” from formerRCFC 5.4(c) and “All copies shall be identical, orotherwise conformed, to the original” from formerRCFC 5.4(d) have been deleted as unnecessary.

RCFC 5.5 formerly appeared in these rules asRCFC 5.4 and has been renumbered toaccommodate the court’s adoption of FRCP 5.2(which became effective December 1, 2007) and topreserve the consistency in numbering systemsbetween the court’s rules and the FRCP.

2011 AmendmentRCFC 5.5(d)(1)(A) has been amended by

reducing the required number of copies of acomplaint to be filed from an original and 7 copiesto an original and 2 copies. Additionally,subparagraph (d)(1)(B) has been added to requirea plaintiff, except a plaintiff appearing pro se, toalso file one copy of the complaint in electronicform using a disc in CD-ROM format when thecomplaint exceeds 20 pages.

Finally, subdivision (f) has been amended torequire the attorney of record to include anelectronic mail address directly below the signatureline of every filing.

Rule 6. Computing and Extending Time; Timefor Motion Papers

(a) Computing Time. The following rules applyin computing any time period specified inthese rules, in any court order, or in anystatute that does not specify a method ofcomputing time.

RCFC 6 (cont.) 16

(1) Period Stated in Days or a Longer Unit.When the period is stated in days or alonger unit of time:(A) exclude the day of the event that

triggers the period;(B) count every day, including

intermediate Saturdays, Sundays,and legal holidays; and

(C) include the last day of the period,but if the last day is a Saturday,Sunday, or legal holiday, the periodcontinues to run until the end of thenext day that is not a Saturday,Sunday, or legal holiday.

(2) Period Stated in Hours. When theperiod is stated in hours:(A) begin counting immediately on the

occurrence of the event that triggersthe period;

(B) count every hour, including hoursduring intermediate Saturdays,Sundays, and legal holidays; and

(C) if the period would end on aSaturday, Sunday, or legal holiday,the period continues to run until thesame time on the next day that isnot a Saturday, Sunday, or legalholiday.

(3) Inaccessibility of the Clerk’s Office.Unless the court orders otherwise, if theclerk’s office is inaccessible: (A) on the last day for filing under

RCFC 6(a)(1), then the time forfiling is extended to the firstaccessible day that is not aSaturday, Sunday, or legal holiday;or

(B) during the last hour for filing underRCFC 6(a)(2), then the time forfiling is extended to the same timeon the first accessible day that is nota Saturday, Sunday, or legalholiday.

(4) “Last Day” Defined. Unless a differenttime is set by a statute or court order, thelast day ends:

(A) for electronic filing, at midnight inthe Eastern Time Zone; and

(B) for filing by other means, when theclerk’s office is scheduled to close,subject to the provision for after-hours filing permitted under RCFC77.1(a).

(5) “Next Day” Defined. The “next day” isdetermined by continuing to countforward when the period is measuredafter an event and backward whenmeasured before an event.

(6) “Legal Holiday” Defined. “Legalholiday” means:(A) the day set aside by statute for

observing New Year’s Day,Inauguration Day, Martin LutherKing Jr.’s Birthday, Washington’sBi r t hday, M emor ia l Day,Independence Day, Labor Day,Columbus Day, Veterans’ Day,Thanksgiving Day, or ChristmasDay; and

(B) any other day declared a holiday bythe President or Congress.

(b) Extending Time.(1) In General. When an act may or must

be done within a specified time, the courtmay, for good cause, extend the time: (A) with or without motion or notice if

the court acts, or if a request ismade, before the original time or itsextension expires; or

(B) on motion made after the time hasexpired if the party failed to actbecause of excusable neglect.

(2) Exceptions. The court must not extendthe time to act under RCFC 52(b), 59(b),(d), and (e), and 60(b).

(c) Motions, Notices of Hearing, andAffidavits. [Not used.]

(d) Additional Time After Certain Kinds ofService. When a party may or must act withina specified time after service and service ismade under RCFC 5(b)(2)(C), (D), (E), or (F),3 days are added after the period would

17 RCFC 6.1

otherwise expire under RCFC 6(a).

(As revised and reissued May 1, 2002; as amendedJune 20, 2006, Nov. 3, 2008, Jan. 11, 2010.)


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.



2010 AmendmentRCFC 6 has been amended in accordance with

the corresponding changes to FRCP 6 that becameeffective December 1, 2009. These changes governthe computation of any time period specified inthese rules, in any court order, or in any statute thatdoes not specify a method of computing time. Fora comprehensive explanation of the time-computation changes, see the 2009 CommitteeNote to FRCP 6.

In addition, the definition of “last day” insubparagraph (a)(4)(B) has been amended toinclude a reference to the after-hours filingpermitted under RCFC 77.1(a).

Finally, paragraph (b)(2) has been amended todelete the reference to RCFC 54(d)(1).

Rule 6.1 Motion for an Enlargement of Time(a) Contents. A motion for an enlargement of

time must set forth: (1) the specific number of additional days

requested;(2) the date to which the enlargement is to

run;

(3) the total number of days granted in anypreviously filed motions for enlargement;and

(4) the reason for the enlargement. (b) Communication With Opposing Counsel.

The moving party must make a reasonableeffort to discuss the motion with opposingcounsel and must indicate in the motionwhether an opposition will be filed, or, ifopposing counsel cannot be consulted, anexplanation of the efforts that were made todo 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.


to conform to the general restyling of the FRCP.

RCFC 7, 7.1, and 7.2 18

TITLE III. PLEADINGS AND MOTIONS

Rule 7. Pleadings Allowed; Form of Motionsand Other Papers

(a) Pleadings. Only these pleadings are allowed:(1) a complaint;(2) an answer to a complaint;(3) an answer to a counterclaim designated

as a counterclaim;(4) a reply to any offset or plea of fraud

contained in the answer;(5) a third-party pleading permitted under

RCFC 14; and(6) if the court orders one, a reply to an

answer. (b) Motions and Other Papers.

(1) In General. A request for a court ordermust be made by motion. Any motion,objection, or response may beaccompanied by a brief or memorandumand, if necessary, affidavits supportingthe motion. The motion must:(A) be in writing unless made during a

hearing or trial;(B) state with particularity the grounds

for seeking the order; and(C) state the relief sought.

(2) Form. The rules governing captions andother matters of form in pleadings applyto motions and other papers.



Minor grammatical changes have beenintroduced.


conform to the general restyling of the FRCP. In addition, the provision included in former

paragraph (b)(1) stating that a motion may “beaccompanied by a proposed order” has beenomitted in favor of full conformance with FRCP 7.

Rule 7.1. Disclosure Statement(a) Who Must File; Contents. A

nongovernmental corporate party must file 2copies of a disclosure statement that:(1) identifies any parent corporation and any

publicly held corporation owning 10% ormore of its stock; or

(2) states that there is no such corporation.(b) Time to File; Supplemental Filing. A party

must:(1) file the disclosure statement with its first

appearance, pleading, petition, motion,response, or other request addressed tothe court; and

(2) promptly file a supplemental statement ifany required information changes.

(Added Sept. 15, 2003; as amended Nov. 3, 2008.)

Rules Committee Notes2003 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) In General.

(1) Responses and Objections. Unlessotherwise provided in these rules or byorder of the court, a response or anobjection to a written motion must befiled within 14 days after service of themotion.

(2) Replies. A reply to a response or anobjection may be filed within 7 daysafter service of the response or objection.

(b) Motions Under RCFC 12(b), 12(c), 52.1,and 56. (1) Responses. A response to any of these

motions must be filed within 28 daysafter service of the motion.

(2) Replies. A reply to a response may be

19 RCFC 8

filed within 14 days after service of theresponse.

(c) Cross-Motions. (1) Initial Motion. A cross-motion may be

filed within the time allowed forresponses in RCFC 7.2(a) and (b).

(2) Response and Reply. A party will havethe same amount of time to respond andreply to a cross-motion as to an originalmotion.

(d) Motions Filed by Leave of Court. The timefor filing a response to a motion filed by leaveof court on motion by a party will run fromthe date of filing and not from the date ofservice.

(As revised and reissued May 1, 2002; as amendedSept. 15, 2003, June 20 2006, Nov. 3, 2008.)

Rules Committee Notes2002 Revision and 2003 AmendmentRCFC 7.2 has no FRCP counterpart. The rule

formerly 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.


to conform to the general restyling of the FRCP. In addition, to improve organizational

structure, the subdivision dealing with the contentsof cross-motions, formerly included in these rulesas RCFC 7.2(e), has been moved to RCFC 5.4(a).

Rule 8. General Rules of Pleading(a) Claim for Relief. A pleading that states a

claim for relief must contain:(1) a short and plain statement of the

grounds for the court’s jurisdiction,unless the court already has jurisdictionand the claim needs no new jurisdictionalsupport;

(2) a short and plain statement of the claimshowing that the pleader is entitled torelief; and

(3) a demand for the relief sought, whichmay include relief in the alternative ordifferent types of relief.

(b) Defenses; Admissions and Denials. (1) In General. In responding to a pleading,

a party must:(A) state in short and plain terms its

defenses to each claim assertedagainst it; and

(B) admit or deny the allegationsasserted against it by an opposingparty.

(2) Denials—Responding to the Substance.A denial must fairly respond to thesubstance of the allegation.

(3) General and Specific Denials. A partythat intends in good faith to deny all theallegations of a pleading—including thejurisdictional grounds—may do so by ageneral denial. A party that does notintend to deny all the allegations musteither specifically deny designatedallegations or generally deny all exceptthose specifically admitted.

(4) Denying Part of an Allegation. A partythat intends in good faith to deny onlypart of an allegation must admit the partthat is true and deny the rest.

(5) Lacking Knowledge or Information. Aparty that lacks knowledge orinformation sufficient to form a beliefabout the truth of an allegation must sostate, and the statement has the effect ofa denial.

(6) Effect of Failing to Deny. An

RCFC 9 20

allegation—other than one relating to theamount of damages—is admitted if aresponsive pleading is required and theallegation is not denied. If a responsivepleading is not required, an allegation isconsidered denied or avoided.

(c) Affirmative Defenses.(1) In General. In responding to a pleading,

a party must affirmatively state anyavoidance or affirmative defense,including:• accord and satisfaction;• arbitration and award;• assumption of risk;• contributory negligence;• duress;• estoppel;• failure of consideration;• fraud;• illegality;• laches;• license;• payment;• release;• res judicata;• statute of frauds;• statute of limitations; and• waiver.

(2) Mistaken Designation. If a partymistakenly designates a defense as acounterclaim, or a counterclaim as adefense, the court must, if justicerequires, treat the pleading as though itwere correctly designated, and mayimpose terms for doing so.

(d) Pleading to Be Concise and Direct;Alternative Statements; Inconsistency.(1) In General. Each allegation must be

simple, concise, and direct. No technicalform is required.

(2) Alternative Statements of a Claim orDefense. A party may set out 2 or morestatements of a claim or defensealternatively or hypothetically, either ina single count or defense or in separateones. If a party makes alternative

statements, the pleading is sufficient ifany one of them is sufficient.

(3) Inconsistent Claims or Defenses. Aparty may state as many separate claimsor defenses as it has, regardless ofconsistency.

(e) Construing Pleadings. Pleadings must beconstrued so as to do justice.

(As revised and reissued May 1, 2002; as amendedNov. 3, 2008, Jan. 11, 2010.)


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.



2010 AmendmentRCFC 8(c)(1) has been amended by deleting

“discharge in bankruptcy” from the list ofaffirmative defenses in accordance with thecorresponding change to FRCP 8 that becameeffective December 1, 2009.

Rule 9. Pleading Special Matters(a) Capacity or Authority to Sue; Legal

Existence.(1) In General. Except when required to

show that the court has jurisdiction, apleading need not allege: (A) a party’s capacity to sue or be sued;

21 RCFC 9 (cont.)

(B) a party’s authority to sue or be suedin a representative capacity; or

(C) the legal existence of an organizedassociation of persons that is madea party.

(2) Raising Those Issues. To raise any ofthose issues, a party must do so by aspecific denial, which must state anysupporting facts that are peculiarlywithin the party’s knowledge.

(b) Fraud or Mistake; Conditions of Mind. Inalleging fraud or mistake, a party must statewith particularity the circumstancesconstituting fraud or mistake. Malice, intent,knowledge, and other conditions of a person’smind may be alleged generally.

(c) Conditions Precedent. In pleadingconditions precedent, it suffices to allegegenerally that all conditions precedent haveoccurred or been performed. But whendenying that a condition precedent hasoccurred or been performed, a party must doso with particularity.

(d) Official Document or Act. In pleading anofficial document or official act, it suffices toallege that the document was legally issued orthe act legally done.

(e) Judgment. In pleading a judgment ordecision of a domestic or foreign court, ajudicial or quasi-judicial tribunal, or a boardor officer, it suffices to plead the judgment ordecision without showing jurisdiction torender it.

(f) Time and Place. An allegation of time orplace is material when testing the sufficiencyof a pleading.

(g) Special Damages. If an item of specialdamage is claimed, it must be specificallystated.

(h) Admiralty or Maritime Claim. [Not used.](i) Inverse Condemnation Claim. In pleading

a claim for just compensation under the FifthAmendment of the United States Constitution,a party must identify the specific propertyinterest alleged to have been taken by theUnited States.

(j) Citation to Statutes, Regulations, andOrders. In pleading a claim founded on astatute, regulation, or executive order, a partymust include the citation to the act ofCongress, regulation of an executivedepartment or agency, or Executive Order ofthe President on which the claim is founded.

(k) Contract or Treaty. In pleading a claimfounded on a contract or treaty, a party mustidentify the substantive provisions of thecontract or treaty on which the party relies. Inlieu of a description, the party may annex tothe complaint a copy of the contract or treaty,indicating the relevant provisions.

(l) Patent Claim. In pleading a patentinfringement, a party must describe the patentor patents alleged to be infringed.

(m) Tax Refund Claim. In pleading a claim fora tax refund, a party must include: (1) a copy of the claim for refund, and(2) a statement identifying:

(A) the tax year(s) for which a refund issought;

(B) the amount, date, and place of eachpayment to be refunded;

(C) the date and place the return wasfiled, if any;

(D) the name, address , andidentification number (under seal)of the taxpayer(s) appearing on thereturn;

(E) the date and place the claim forrefund was filed; and

(F) the identification number (underseal) of each plaintiff, if differentfrom the identification number ofthe taxpayer.

(n) Ownership of a Claim; Assignment. Inpleading a claim or part of a claim, ownershipof which was acquired by assignment or othertransfer, a party must include a statementdescribing when and upon what considerationthe assignment or transfer was made.

(o) Action by Another Tribunal or Body. Inrelying on an action by another tribunal orbody, a party must describe the action taken

RCFC 10 and 11 22

on the claim by Congress, a department oragency of the United States, or another court.



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.


conform to the general restyling of the FRCP. In addition, former subdivision (h) (“Special

Matters Required in Complaint”), comprised ofparagraphs (1) through (7), has been reorganized asseparate subdivisions (i) through (o), and arequirement was added to new subdivision (m)(“Tax Refund Claim”) directing that taxpayeridentification numbers be included under seal.

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

must have a caption with the court’s name, atitle, a file number, and a RCFC 7(a)designation. The title of the complaint mustname all the parties (see RCFC 20(a)), withthe United States designated as the partydefendant; the title of other pleadings, afternaming the first party on each side, may refergenerally to other parties.

(b) Paragraphs; Separate Statements. A partymust state its claims or defenses in numberedparagraphs, each limited as far as practicableto a single set of circumstances. A later

pleading may refer by number to a paragraphin an earlier pleading. If doing so wouldpromote clarity, each claim founded on aseparate transaction or occurrence—and eachdefense other than a denial—must be stated ina separate count or defense.

(c) Adoption by Reference; Exhibits. Astatement in a pleading may be adopted byreference elsewhere in the same pleading or inany other pleading or motion. A copy of awritten instrument that is an exhibit to apleading is part of the pleading for allpurposes.



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.

2008 AmendmentThe language of RCFC 10 has been amended

to conform to the general restyling of the FRCP. Rule 11. Signing Pleadings, Motions, and Other

Papers; Representations to the Court;Sanctions

(a) Signature. Every pleading, written motion,and other paper must be signed by or for theattorney of record in the attorney’s name—orby a party personally if the party isunrepresented. The paper must state thesigner’s address, e-mail address, andtelephone number. Unless a rule or statutespecifically states otherwise, a pleading neednot be verified or accompanied by an

23 RCFC 11 (cont.)

affidavit. The court must strike an unsignedpaper unless the omission is promptlycorrected after being called to the attorney’sor party’s attention.

(b) Representations to the Court. By presentingto the court a pleading, written motion, orother paper—whether by signing, filing,submitting, or later advocating it—an attorneyor unrepresented party certifies that to the bestof the person’s knowledge, information, andbelief, formed after an inquiry reasonableunder the circumstances:(1) it is not being presented for any improper

purpose, such as to harass, causeunnecessary delay, or needlessly increasethe cost of litigation;

(2) the claims, defenses, and other legalcontentions are warranted by existinglaw or by a nonfrivolous argument forextending, modifying, or reversingexisting law or for establishing new law;

(3) the factual contentions have evidentiarysupport or, if specifically so identified,will likely have evidentiary support aftera reasonable opportunity for furtherinvestigation or discovery; and

(4) the denials of factual contentions arewarranted on the evidence or, ifspecifically so identified, are reasonablybased on belief or a lack of information.

(c) Sanctions.(1) In General. If, after notice and a

reasonable opportunity to respond, thecourt determines that RCFC 11(b) hasbeen violated, the court may impose anappropriate sanction on any attorney, lawfirm, or party that violated the rule or isresponsible for the violation. Absentexceptional circumstances, a law firmmust be held jointly responsible for aviolation committed by its partner,associate, or employee.

(2) Motion for Sanctions. A motion forsanctions must be made separately fromany other motion and must describe thespecific conduct that allegedly violates

RCFC 11(b). The motion must be servedunder RCFC 5, but it must not be filed orpresented to the court if the challengedpaper, claim, defense, contention, ordenial is withdrawn or appropriatelycorrected within 21 days after service orwithin another time the court sets. Ifwarranted, the court may award to theprevailing party the reasonable expenses,including attorney’s fees, incurred for themotion.

(3) On the Court’s Initiative. On its own,the court may order an attorney, lawfirm, or party to show cause why conductspecifically described in the order hasnot violated RCFC 11(b).

(4) Nature of a Sanction. A sanctionimposed under this rule must be limitedto what suffices to deter repetition of theconduct or comparable conduct by otherssimilarly situated. The sanction mayinclude nonmonetary directives; an orderto pay a penalty into court; or, if imposedon motion and warranted for effectivedeterrence, an order directing payment tothe movant of part or all of thereasonable attorney’s fees and otherexpenses directly resulting from theviolation.

(5) Limitations on Monetary Sanctions.The court must not impose a monetarysanction:(A) against a represented party for

violating RCFC 11(b)(2); or(B) on its own, unless it issued the

show-cause order under RCFC11(c)(3) before voluntary dismissalor settlement of the claims made byor against the party that is, or whoseattorneys are, to be sanctioned.

(6) Requirements for an Order. An orderimposing a sanction must describe thesanctioned conduct and explain the basisfor the sanction.

(d) Inapplicability to Discovery. This rule doesnot apply to disclosures and discovery

RCFC 12 24

requests, responses, objections, and motionsunder RCFC 26 through 37.



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 andHow Presented; Motion for Judgmenton the Pleadings; ConsolidatingMotions; Waiving Defenses; PretrialHearing

(a) Time to Serve a Responsive Pleading.(1) In General.

(A) The United States must file ananswer to a complaint within 60days after being served with thecomplaint.

(B) If the answer contains acounterclaim, offset, or plea offraud, a party must file an answer tothe counterclaim, and may file areply to the offset or plea of fraud,within 21 days after being servedwith the answer.

(C) If a reply to an answer or aresponsive pleading to a third-partycomplaint or answer is ordered bythe court, a party must file the replyor responsive pleading within 21days after being served with theorder, unless the order specifies adifferent time.

(2) United States and Its Agencies, Officers,

or Employees Sued in an OfficialCapacity. [Not used.]

(3) United States Officers or EmployeesSued in an Individual Capacity. [Notused.]

(4) Effect of a Motion. Unless the court setsa different time, serving a motion underthis rule or RCFC 56 alters these periodsas follows:(A) if the court denies the motion, in

whole or in part, or postpones itsdisposition until trial, or if a partywithdraws the motion, theresponsive pleading must be filedby the later of:(i) 14 days after notice of the

court’s action or the motion’swithdrawal; or

(ii) the date the response otherwisewould have been due.

(B) if the court grants a motion for amore definite statement, theresponsive pleading must be servedwithin 14 days after the moredefinite statement is served.

(b) How to Present Defenses. Every defense toa claim for relief in any pleading must beasserted in the responsive pleading if one isrequired. But a party may assert the followingdefenses by motion:(1) lack of subject-matter jurisdiction;(2) lack of personal jurisdiction;(3) improper venue [not used];(4) insufficient process;(5) insufficient service of process;(6) failure to state a claim upon which relief

can be granted; and (7) failure to join a party under RCFC 19.A motion asserting any of these defenses mustbe made before pleading if a responsivepleading is allowed. If a pleading sets out aclaim for relief that does not require aresponsive pleading, an opposing party mayassert at trial any defense to that claim. Nodefense or objection is waived by joining itwith one or more other defenses or objections

25 RCFC 12 (cont.)

in a responsive pleading or in a motion. (c) Motion for Judgment on the Pleadings.

After the pleadings are closed—but earlyenough not to delay trial—a party may movefor judgment on the pleadings.

(d) Result of Presenting Matters Outside thePleadings. If, on a motion under RCFC12(b)(6) or 12(c), matters outside thepleadings are presented to and not excludedby the court, the motion must be treated asone for summary judgment under RCFC 56.All parties must be given a reasonableopportunity to present all the material that ispertinent to the motion.

(e) Motion for a More Definite Statement. Aparty may move for a more definite statementof a pleading to which a responsive pleadingis allowed but which is so vague or ambiguousthat the party cannot reasonably prepare aresponse. The motion must be made beforefiling a responsive pleading and must pointout the defects complained of and the detailsdesired. If the court orders a more definitestatement and the order is not obeyed within14 days after notice of the order or within thetime the court sets, the court may strike thepleading or issue any other appropriate order.

(f) Motion to Strike. The court may strike froma pleading an insufficient defense or anyredundant, immaterial, impertinent, orscandalous matter. The court may act:(1) on its own; or(2) on motion made by a party either before

responding to the pleading or, if aresponse is not allowed, within 21 daysafter being served with the pleading.

(g) Joining Motions.(1) Right to Join. A motion under this rule

may be joined with any other motionallowed by this rule.

(2) Limitation on Further Motions. Exceptas provided in RCFC 12(h)(2) or (3), aparty that makes a motion under this rulemust not make another motion under thisrule raising a defense or objection thatwas available to the party but omitted

from its earlier motion.(h) Waiving and Preserving Certain Defenses.

(1) When Some Are Waived. A partywaives any defense listed in RCFC12(b)(2)-(5) by:(A) omitting it from a motion in the

circumstances described in RCFC12(g)(2); or

(B) failing to either:(i) make it by motion under this

rule; or(ii) include it in a responsive

pleading or in an amendmentallowed by RCFC 15(a)(1) as amatter of course.

(2) When to Raise Others. Failure to state aclaim upon which relief can be granted,to join a person required by RCFC 19(b),or to state a legal defense to a claim maybe raised:(A) in any pleading allowed or ordered

under RCFC 7(a);(B) by a motion under RCFC 12(c); or(C) at trial.

(3) Lack of Subject-Matter Jurisdiction. Ifthe court determines at any time that itlacks subject-matter jurisdiction, thecourt must dismiss the action.

(i) Hearing Before Trial. If a party so moves,any defense listed in RCFC 12(b)(1)-(7)—whether made in a pleading or bymotion—and a motion under RCFC 12(c)must be heard and decided before trial unlessthe court orders a deferral until trial.



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 to

RCFC 13 26

practitioners, 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.


to conform to the general restyling of the FRCP. In addition, former paragraph (a)(1) (the text

of which is unique to our court) has been rewordedto provide that while a reply to an answercontaining a counterclaim is mandatory, a reply toan answer containing an offset or a plea of fraud isnot (unless ordered by the court). This rewording,although a departure from past practice, wasdeemed advisable in order to avoid theconsequences of an unintended admission causedby a party’s inadvertent failure to respond to adefense of offset or plea of fraud that was notclearly designated as such in the answer.

2010 AmendmentThe time periods of 10 and 20 days formerly

set forth in RCFC 12 have been changed to 14 and21 days, respectively, in accordance with thecorresponding changes to FRCP 12 that becameeffective December 1, 2009.

Rule 13. Counterclaim(a) Compulsory Counterclaim.

(1) In General. A pleading must state as acounterclaim any claim that—at the timeof its service—the pleader has against anopposing party if the claim:(A) arises out of the transaction or

occurrence that is the subject matterof the opposing party’s claim; and

(B) does not require adding anotherparty over whom the court cannotacquire jurisdiction.

(2) Exceptions. The pleader need not state

the claim if, when the action wascommenced, the claim was the subject ofanother pending action.

(b) Permissive Counterclaim. A pleading maystate as a counterclaim against an opposingparty any claim that is not compulsory.

(c) Relief Sought in a Counterclaim. Acounterclaim need not diminish or defeat therecovery sought by the opposing party. It mayrequest relief that exceeds in amount or differsin kind from the relief sought by the opposingparty.

(d) Counterclaim Against the United States.These rules do not expand the right to assert acounterclaim—or to claim a credit—againstthe United States or a United States officer oragency.

(e) Counterclaim Maturing or Acquired AfterPleading. The court may permit a party tofile a supplemental pleading asserting acounterclaim that matured or was acquired bythe party after serving an earlier pleading.

(f) Crossclaim Against a Coparty. [Not used.](g) Joining Additional Parties. [Not used.](h) Separate Trials; Separate Judgments. If

the court orders separate trials under RCFC42(b), it may enter judgment on acounterclaim under RCFC 54(b) when it hasjurisdiction to do so, even if the opposingparty’s claims have been dismissed orotherwise resolved.



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.

27 RCFC 14


to conform to the general restyling of the FRCP. In addition, the text of subdivisions (a) and (f)

has been modified to recognize that counterclaims,while generally filed in this court by the defendant,could, under certain circumstances, also be filed bya summoned third party (see RCFC 14). Hence,the terms “pleader” and “pleading,” respectively,have been substituted for the more restrictive terms“defendant” and “answer.”

2010 AmendmentFormer subdivision (f) has been deleted in

accordance with the corresponding change toFRCP 13 that became effective December 1, 2009.

Rule 14. Third-Party Practice(a) When the United States May Bring in a

Third Party.(1) Motion for Summons. The United

States may, as third-party plaintiff, movethe court to summon a nonparty who isor may be liable to the United States forthe recovery of money paid by the UnitedStates in respect of the transaction ormatter that constitutes the subject matterof the suit.

(2) Accompanying Complaint. A motion forsummons must be accompanied by acomplaint setting forth the claim orcontingent claim that the United States isasserting against the nonparty.

(3) Issuing the Summons. If the courtgrants a motion for summons, the clerkmust issue an original and one copy ofthe summons.

(4) Contents of the Summons. A summonsmust:(A) contain the name of the person

summoned; (B) state that the United States is

asserting a claim against the personsummoned as described in theaccompanying complaint;

(C) identify the time within which theperson summoned is required toappear and answer the complaint;

(D) list all pleadings that have beenfiled in the suit; and

(E) contain, as attachments provided bythe United States, copies of allpleadings.

(5) Serving the Summons. Upon issuing thesummons, the clerk must deliver thesummons to the Attorney General forpersonal service upon the personsummoned. The return of such servicemust be made directly to the clerk.

(6) Third-Party Defendant’s Claims andDefenses. The person served with thesummons and third-party complaint,referred to as the “third-party defendant”:(A) must assert any defense against the

third-party plaintiff’s claim underRCFC 12;

(B) must assert any counterclaimagainst the third-party plaintiffunder RCFC 13(a); and

(C) may assert against the plaintiff anydefense that the third-party plaintiffhas to the plaintiff’s claim.

(b) Notice to an Interested Party. (1) In General. The court, on motion or on

its own, may notify any person with thelegal capacity to sue or to be sued who isalleged to have an interest in the subjectmatter of the suit.

(2) Motion for Notice.(A) Contents. A motion for notice

must:(i) contain the name and address

of the person to be notified;and

(ii) state the person’s interest inthe pending action.

(B) Timing. (i) A plaintiff must file any

motion for notice at the timethe complaint is filed.

(ii) The United States must file

RCFC 14 (cont.) 28

any motion for notice on orbefore the date the answer isrequired to be filed.

(iii) For good cause shown, thecourt may allow a motion fornotice to be filed at a latertime.

(3) Issuing a Notice; Contents. (A) When the court, on motion or on its

own, orders a nonparty to benotified, the clerk must issue anoriginal and one copy of the notice.

(B) The notice must:(i) contain the name of the person

notified;(ii) identify the time within which

the person may file anappropriate pleading pursuantto RCFC 14(c)(1)(A); and

(iii) state that the notice isaccompanied by copies of allpleadings that have been filedin the suit.

(4) Serving a Notice Issued on Motion of aParty. When notice is ordered by thecourt on motion of a party:(A) the clerk must deliver the notice to

the moving party for service, at themoving party’s expense, on theperson to be notified;

(B) the moving party must serve thenotice, together with copies of allpleadings that have been filed in thesuit, by registered or certified mail,return receipt requested; and

(C) the return of such service must bemade directly to the clerk andinclude a copy of the notice withreturn receipt attached.

(5) Serving a Notice Issued on the Court’sOwn Initiative. When notice is orderedby the court on its own initiative:(A) each party must, at the clerk’s

request, deliver to the clerk copiesof the party’s pleadings;

(B) the clerk, upon receipt of the

pleadings, must:(i) issue a notice as specified in

RCFC 14(b)(3); and(ii) forward the notice to the

Attorney General for service inaccordance with RCFC14(b)(4)(B) and (C).

(6) Serving a Person Outside the UnitedStates. When serving a notice on aperson in a foreign country, proof ofservice must be made in accordance withFRCP 4(f).

(c) Third Parties Pleadings.(1) In General.

(A) A person served with a noticeissued under this rule may file anappropriate pleading setting forththe person’s interest in the subjectmatter of the litigation.

(B) A third party’s pleading mustcomply with the requirements ofRCFC 5, 5.2, 5.3, 5.5, 7, 7.1, and7.2 except that a third party needonly file an original and 2 copies ofits complaint instead of the 7 copiesrequired by RCFC 5.5(d).

(2) Time. A third-party’s pleading must befiled within 42 days after service of thesummons or notice issued pursuant tothis rule.



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 to

29 RCFC 15

inform 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.


to conform to the general restyling of the FRCP. In addition, in RCFC 14(c)(1)(B), instead of

directing that a third-party pleading “shall complywith the requirements of these rules with respect tothe filing of original complaints and answers,” therule specifies that a third-party pleading mustcomply with RCFC 5, 5.2, 5.3, 5.5, 7, and 7.1.

2010 AmendmentThe requirement formerly set forth in RCFC

14(b)(2)(A) that a motion for notice must “contain,as attachments, copies of all pleadings that havebeen filed in the suit” has been stricken in favor ofrequiring that such copies be provided by themoving party when serving the notice under RCFC14(b)(4)(B).

In addition, in the interest of internalconsistency, the phrase in RCFC 14(b)(3)(B)(ii)“may seek intervention to assert an interest in thesuit” has been changed to read “may file anappropriate pleading pursuant to RCFC14(c)(1)(A).”

Rule 15. Amended and Supplemental Pleadings(a) Amendments Before Trial.

(1) Amending as a Matter of Course. Aparty may amend its pleadings once as a

matter of course within:(A) 21 days after service of the

pleading; or(B) if the pleading is one to which a

responsive pleading is required, 21days after service of a responsivepleading or 21 days after service ofa motion under RCFC 12(b), (e), or(f), whichever is earlier.

(2) Other Amendments. In all other cases,a party may amend its pleading only withthe opposing party’s written consent orthe court’s leave. The court shouldfreely give leave when justice sorequires.

(3) Time to Respond. Unless the courtorders otherwise, any required responseto an amended pleading must be madewithin the time remaining to respond tothe original pleading or within 14 daysafter service of the amended pleading,whichever is later.

(b) Amendments During and After Trial.(1) Based on an Objection at Trial. If, at

trial, a party objects that evidence is notwithin the issues raised in the pleadings,the court may permit the pleadings to beamended. The court should freely permitan amendment when doing so will aid inpresenting the merits and the objectingparty fails to satisfy the court that theevidence would prejudice that party’saction or defense on the merits. Thecourt may grant a continuance to enablethe objecting party to meet the evidence.

(2) For Issues Tried by Consent. When anissue not raised by the pleadings is triedby the parties’ express or impliedconsent, it must be treated in all respectsas if raised in the pleadings. A party maymove—at any time, even afterjudgment—to amend the pleadings toconform them to the evidence and toraise an unpleaded issue. But failure toamend does not affect the result of thetrial of that issue.

RCFC 16 30

(c) Relation Back of Amendments.(1) When an Amendment Relates Back. An

amendment to a pleading relates back tothe date of the original pleading when:(A) the law that provides the applicable

statute of limitations allows relationback;

(B) the amendment asserts a claim ordefense that arose out of theconduct, transaction, or occurrenceset out—or attempted to be setout—in the original pleading; or

(C) the amendment changes the party orthe naming of the party againstwhom a claim is asserted, if RCFC15(c)(1)(B) is satisfied and if theparty to be brought in byamendment:(i) received such notice of the

action that it will not beprejudiced in defending on themerits; and

(ii) knew or should have knownthat the action would havebeen brought against it, but fora mistake concerning theproper party’s identity.

(2) Notice to the United States. [Not Used.](d) Supplemental Pleadings. On motion and

reasonable notice, the court may, on justterms, permit a party to serve a supplementalpleading setting out any transaction,occurrence, or event that happened after thedate of the pleading to be supplemented. Thecourt may permit supplementation eventhough the original pleading is defective instating a claim or defense. The court mayorder that the opposing party plead to thesupplemental pleading within a specified time.

(As revised and reissued May 1, 2002; as amendedNov. 3, 2008, Jan. 11, 2010, July 15, 2011.)


Significant changes were made to FRCP 15 in

1991; 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.



2010 Amendment RCFC 15(a) has been amended in accordance

with the corresponding changes to FRCP 15(a) thatbecame effective December 1, 2009.

2011 AmendmentRCFC 15(a)(1)(A) has been amended to

clarify that the 21-day time period runs from thedate of service of the pleading.

Rule 16. Pretrial Conferences; Scheduling;Management

(a) Purposes of a Pretrial Conference. In anyaction, the court may order the attorneys andany unrepresented parties to appear for one ormore pretrial conferences for such purposesas:(1) expediting disposition of the action; (2) establishing early and continuing control

so that the case will not be protractedbecause of lack of management;

(3) discouraging wasteful pretrial activities;(4) improving the quality of the trial through

more thorough preparation; (5) facilitating settlement; and(6) assessing the utility of dispositive

motions. (b) Scheduling.

(1) Scheduling Order. The court will issuea scheduling order:(A) after receiving the parties’ Joint

31 RCFC 16 (cont.)

Preliminary Status Report underAppendix A ¶ 3; or

(B) after consulting with the parties’attorneys and any unrepresentedparties at a scheduling conferenceor by telephone, mail, or othermeans.

(2) Time to Issue. The court will issue thescheduling order as soon as practicableafter the filing of the Joint PreliminaryStatus Report, but in any event within 14days after any preliminary schedulingconference.

(3) Contents of the Order.(A) Required Contents. The scheduling

order must limit the time to joinother parties, amend the pleadings,complete discovery, and filemotions.

(B) Permitted Contents. The schedulingorder may:(i) modify the t iming of

disclosures under RCFC 26(a)and 26(e)(1);

(ii) modify the extent of discovery;(iii) provide for disclosure or

discovery of electronicallystored information;

(iv) include any agreements theparties reach for assertingclaims of privilege or ofprotection as trial-preparationmaterial after information isproduced;

(v) set dates for pretrialconferences and for trial;

(vi) direct that the parties file anyof the submissions set out inAppendix A ¶¶ 14, 15, 16, or17; and

(vii) include other appropriatematters.

(4) Modifying a Schedule. A schedule maybe modified only for good cause andwith the judge’s consent.

(c) Attendance and Matters for Consideration

at a Pretrial Conference.(1) Attendance. A represented party must

authorize at least one of its attorneys tomake stipulations and admissions aboutall matters that can reasonably beanticipated for discussion at a pretrialconference. If appropriate, the court mayrequire that a party or its representativebe present or reasonably available byother means to consider possiblesettlement.

(2) Matters for Consideration. At anypretrial conference, the court mayconsider and take appropriate action onthe following matters:(A) formulating and simplifying the

issues, and eliminating frivolousclaims or defenses;

(B) amending the pleadings if necessaryor desirable;

(C) o b t a i n i n g a d mi s s i ons an dstipulations about facts anddocuments to avoid unnecessaryproof, and ruling in advance on theadmissibility of evidence;

(D) avoiding unnecessary proof andcumulative evidence, and limitingthe use of testimony under FederalRule of Evidence 702;

(E) determining the appropriateness andtiming of summary adjudicationunder RCFC 52.1 and 56;

(F) controll ing and schedul ingdiscovery, including ordersaffecting disclosures and discoveryunder RCFC 26 and RCFC 29through 37;

(G) identifying witnesses anddocuments, scheduling the filingand exchange of any pretrial briefs,and setting dates for furtherconferences and for trial;

(H) referring matters to a master;(I) settling the case and using special

procedures to assist in resolving thedispute;

RCFC 16 (cont.) 32

(J) determining the form and content ofthe pretrial order;

(K) disposing of pending motions;(L) adopting special procedures for

managing potentially difficult orprotracted actions that may involvecomplex issues, multiple parties,difficult legal questions, or unusualproof problems;

(M) ordering a separate trial underRCFC 42(b) of a claim,counterclaim, third-party claim, orparticular issue;

(N) ordering the presentation ofevidence early in the trial on amanageable issue that might, on theevidence, be the basis for ajudgment as a matter of law or ajudgment on partial findings underRCFC 52(c);

(O) establishing a reasonable time limiton the time allowed to presentevidence; and

(P) facilitating in other ways the just,speedy, and inexpensive dispositionof the action.

(d) Pretrial Orders. After any conference underthis rule, the court should issue an orderreciting the action taken. This order controlsthe course of the action unless the courtmodifies it.

(e) Final Pretrial Conference and Orders. Thecourt may hold a final pretrial conference toformulate a trial plan, including a plan tofacilitate the admission of evidence. Theconference must be held as close to the startof trial as is reasonable, and must be attendedby at least one attorney who will conduct thetrial for each party and by any unrepresentedparty. The court may modify the order issuedafter a final pretrial conference only toprevent manifest injustice.

(f) Sanctions.(1) In General. On motion or on its own,

the court may issue any just orders,including those authorized by RCFC

37(b)(2)(A)(ii)–(vii), if a party or itsattorney: (A) fails to appear at a scheduling or

other pretrial conference;(B) is substantially unprepared to

participate—or does not participatein good faith—in the conference; or

(C) fails to obey a scheduling or otherpretrial order.

(2) Imposing Fees and Costs. Instead of orin addition to any other sanction, thecourt must order the party, its attorney,or both to pay the reasonableexpenses—including at torney’sfees—incurred because of anynoncompliance with this rule, unless thenoncompliance was substantiallyjustified or other circumstances make anaward of expenses unjust.

(g) Additional Pretrial Procedures. SeeAppendix A to these rules (“CaseManagement Procedure”) for additionalprovisions controlling pretrial procedures.



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


to conform to the general restyling of the FRCP. In addition, reference to RCFC 26(e)(1)

33 RCFC 16 (cont.)

(“Supplementing Disclosures and Responses”) wasadded to RCFC 16(b)(3)(B)(i) to conform to theFRCP.

RCFC 17 34

TITLE IV. PARTIES

Rule 17. Plaintiff and Defendant; Capacity(a) Real Party in Interest.

(1) Designation in General. An action mustbe prosecuted in the name of the realparty in interest. The following may suein their own names without joining theperson for whose benefit the action isbrought:(A) an executor;(B) an administrator;(C) a guardian;(D) a bailee; (E) a trustee of an express trust; (F) a party with whom or in whose

name a contract has been made foranother’s benefit; and

(G) a party authorized by statute. (2) Action in the Name of the United States

for Another’s Use or Benefit. [Notused.]

(3) Joinder of the Real Party in Interest.The court may not dismiss an action forfailure to prosecute in the name of thereal party in interest until, after anobjection, a reasonable time has beenallowed for the real party in interest toratify, join, or be substituted into theaction. After ratification, joinder, orsubstitution, the action proceeds as if ithad been originally commenced by thereal party in interest.

(b) Capacity to Sue or Be Sued. Capacity to sueor be sued is determined as follows:(1) for an individual who is not acting in a

representative capacity, by the law of theindividual’s domicile;

(2) for a corporation, by the law under whichit was organized; and

(3) for all other parties, by the law of theapplicable state, except that:(A) a p a r t n e r s h i p o r o t h e r

unincorporated association with nosuch capacity under that state’s lawmay sue or be sued in its common

name to enforce a substantive rightexisting under the United StatesConstitution or laws; and

(B) 28 U.S.C. §§ 754 and 959(a) governthe capacity of a receiver appointedby a United States court to sue or besued in a United States court.

(c) Minor or Incompetent Person. (1) With a Representative. The following

representatives may sue or defend onbehalf of a minor or an incompetentperson: (A) a general guardian;(B) a committee;(C) a conservator; or(D) a like fiduciary.

(2) Without a Representative. A minor oran incompetent person who does nothave a duly appointed representative maysue by a next friend or by a guardian adlitem. The court must appoint a guardianad litem—or issue another appropriateorder—to protect a minor or incompetentperson who is unrepresented in an action.



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.”

2008 Amendment

35 RCFC 18 and 19

The language of RCFC 17 has been amendedto conform to the general restyling of the FRCP.

Rule 18. Joinder of Claims (a) In General. A party asserting a claim or

counterclaim may join, as independent oralternative claims, as many claims as it hasagainst an opposing party. A third party mayjoin, to the extent permitted by law, as manyclaims as it has against an opposing party.

(b) Joinder of Contingent Claims. A party mayjoin two claims even though one of them iscontingent on the disposition of the other; butthe court may grant relief only in accordancewith the parties’ relative substantive rights.



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. Required Joinder of Parties(a) Persons Required to Be Joined if Feasible.

(1) Required Party. A person who is subjectto service of process and whose joinderwill not deprive the court of subject-matter jurisdiction must be joined as aparty if:(A) in that person’s absence, the court

cannot accord complete reliefamong existing parties; or

(B) that person claims an interestrelating to the subject of the actionand is so situated that disposing ofthe action in the person’s absencemay:

(i) as a practical matter impair orimpede the person’s ability toprotect the interest; or

(ii) leave an existing party subjectto a substantial risk ofincurring double, multiple, oro t h e r wise inc o n s i s t e n tobligations because of theinterest.

(2) Joinder by Court Order. If a person hasnot been joined as required, the courtmust order that the person be made aparty. A person who refuses to join as aplaintiff may be made either a defendantor, in a proper case, an involuntaryplaintiff.

(3) Venue. [Not used.](b) When Joinder Is Not Feasible. If a person

who is required to be joined if feasible cannotbe joined, the court must determine whether,in equity and good conscience, the actionshould proceed among the existing parties orshould be dismissed. The factors for the courtto consider include:(1) the extent to which a judgment rendered

in the person’s absence might prejudicethat person or the existing parties;

(2) the extent to which any prejudice couldbe lessened or avoided by:(A) protective provisions in the

judgment;(B) shaping the relief; or(C) other measures;

(3) whether a judgement rendered in theperson’s absence would be adequate; and

(4) whether the plaintiff would have anadequate remedy if the action weredismissed for nonjoinder.

(c) Pleading the Reasons for Nonjoinder.When asserting a claim for relief, a party muststate: (1) the name, if known, of any person who is

required to be joined if feasible but is notjoined; and

(2) the reasons for not joining that person.(d) Exception for Class Actions. This rule is

RCFC 20, 21, and 22 36

subject to RCFC 23. (As revised and reissued May 1, 2002; as amendedNov. 3, 2008.)


Reference to RCFC 14 was deleted fromsubdivision (a) and other minor changes have beenmade in order to more closely conform toFRCP 19. 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) Persons Who May Join or Be Joined.

(1) Plaintiffs. Persons may join in oneaction as plaintiffs if:(A) they assert any right to relief jointly,

severally, or in the alternative withrespect to or arising out of the sametransaction, occurrence, or series oftransactions or occurrences; and

(B) any question of law or fact commonto all plaintiffs will arise in theaction.

(2) Defendants. [Not used.](3) Extent of Relief. A plaintiff need not be

interested in obtaining all the reliefdemanded. The court may grantjudgment to one or more plaintiffsaccording to their rights.

(c) Protective Measures. The court may issueorders—including an order for separatetrials—to protect a party againstembarrassment, delay, expense, or otherprejudice that arises from including a personagainst whom the party asserts no claim andwho asserts no claim against the party.



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 Nonjoinder of PartiesMisjoinder of parties is not a ground for dismissingan action. On motion or on its own, the court mayat any time, on just terms, add or drop a party. Thecourt may also sever any claim against a party.



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.]

Rules Committee Note2002 Revision

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 of

37 RCFC 23

double liability, RCFC 14 provides the means forsummoning a third party.

Rule 23. Class Actions(a) Prerequisites. One or more members of a

class may sue as representative parties onbehalf of all members only if:(1) the class is so numerous that joinder of

all members is impracticable;(2) there are questions of law or fact

common to the class;(3) the claims or defenses of the

representative parties are typical of theclaims or defenses of the class; and

(4) the representative parties will fairly andadequately protect the interests of theclass.

(b) Class Actions Maintainable. A class actionmay be maintained if RCFC 23(a) is satisfiedand if:(1) [not used];(2) the United States has acted or refused to

act on grounds generally applicable tothe class; and

(3) the court finds that the questions of lawor fact common to class memberspredominate over any questions affectingonly individual members, and that a classaction is superior to other availablemethods for fairly and efficientlyadjudicating the controversy. Thematters pertinent to these findingsinclude:(A) the class members’ interests in

individually controlling theprosecution of separate actions;

(B) the extent and nature of anyl i t i ga t i o n c oncern in g t h econtroversy already begun by classmembers;

(C) [not used]; and (D) the likely difficulties in managing a

class action. (c) Certification Order; Notice to Class

Members; Judgment; Issues Classes;Subclasses.

(1) Certification Order.(A) Time to Issue. At an early

practicable time after a person suesas a class representative, the courtmust determine by order whether tocertify the action as a class action.

(B) Defining the Class; AppointingClass Counsel. An order thatcertifies a class action must definethe class and the class claims,issues, or defenses, and mustappoint class counsel under RCFC23(g).

(C) Altering or Amending the Order.An order that grants or denies classcertification may be altered oramended before final judgment.

(2) Notice. (A) [Not used.](B) For any class certified under RCFC

23(b), the court must direct to classmembers the best notice that ispracticable under the circumstances,including individual notice to allmembers who can be identifiedthrough reasonable effort. Thenotice must clearly and conciselystate in plain, easily understoodlanguage:(i) the nature of the action;(ii) the definition of the class

certified;(iii) the class claims, issues, or

defenses;(iv) that a class member may enter

an appearance through anattorney if the member sodesires;

(v) that the court will include inthe class any member whorequests inclusion;

(vi) the time and manner forrequesting inclusion;

(vii) the binding effect of a classjudgment on members underRCFC 23(c)(3).

RCFC 23 (cont.) 38

(3) Judgment. Whether or not favorable tothe class, the judgment in a class actionmust include and specify or describethose to whom the RCFC 23(c)(2) noticewas directed, and whom the court findsto be class members.

(4) Particular Issues. When appropriate, anaction may be brought or maintained asa class action with respect to particularissues.

(5) Subclasses. When appropriate, a classmay be divided into subclasses that areeach treated as a class under this rule.

(d) Conducting the Action.(1) In General. In conducting an action

under this rule, the court may issueorders that:(A) determine the course of proceedings

or prescribe measures to preventundue repetition or complication inpresenting evidence or argument;

(B) require—to protect class membersa n d f a i r l y c o n d u c t t h eaction—giving appropriate notice tosome or all class members of:(i) any step in the action;(ii) the proposed extent of the

judgment; or(iii) the members’ opportunity to

signify whether they considerthe representation fair andadequate, to intervene andpresent claims or defenses, orto otherwise come into theaction;

(C) impose condit ions on therepresentative parties or onintervenors;

(D) require that the pleadings beamended to eliminate allegationsabout representation of absentpersons and that the action proceedaccordingly; or

(E) deal with similar proceduralmatters.

(2) Combining and Amending Orders. An

order under RCFC 23(d)(1) may bealtered or amended from time to time andmay be combined with an order underRCFC 16.

(e) Settlement, Voluntary Dismissal, orCompromise. The claims, issues, or defensesof a certified class may be settled, voluntarilydismissed, or compromised only with thecourt’s approval. The following proceduresapply to a proposed settlement, voluntarydismissal, or compromise:(1) The court must direct notice in a

reasonable manner to all class memberswho would be bound by the proposal.

(2) If the proposal would bind classmembers, the court may approve it onlyafter a hearing and on finding that it isfair, reasonable, and adequate.

(3) The parties seeking approval must file astatement identifying any agreementmade in connection with the proposal.

(4) [Not used.](5) Any class member may object to the

proposal if it requires court approvalunder this subdivision (e); the objectionmay be withdrawn only with the court’sapproval.

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

(1) Appointing Class Counsel. Unless astatute provides otherwise, a court thatcertifies a class must appoint classcounsel. In appointing class counsel, thecourt:(A) must consider:

(i) the work counsel has done inidentifying or investigatingpotential claims in the action;

(ii) counsel’s experience inhandling class actions, othercomplex litigation, and thetypes of claims asserted in theaction;

(iii) counsel’s knowledge of theapplicable law; and

(iv) the resources that counsel will

39 RCFC 23 (cont.)

commit to representing theclass;

(B) may consider any other matterpertinent to counsel’s ability tofairly and adequately represent theinterests of the class;

(C) may order potential class counsel toprovide information on any subjectpertinent to the appointment and topropose terms for attorney’s feesand nontaxable costs;

(D) may include in the appointing orderprovisions about the award ofattorney’s fees or nontaxable costsunder RCFC 23(h); and

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

(2) Standard for Appointing Class Counsel.When one applicant seeks appointmentas class counsel, the court may appointthat applicant only if the applicant isadequate under RCFC 23(g)(1) and (4).If more than one adequate applicantseeks appointment, the court mustappoint the applicant best able torepresent the interests of the class.

(3) Interim Counsel. The court maydesignate interim counsel to act onbehalf of a putative class beforedetermining whether to certify the actionas a class action.

(4) Duty of Class Counsel. Class counselmust fairly and adequately represent theinterests of the class.

(h) Attorney’s Fees and Nontaxable Costs. Ina certified class action, the court may awardreasonable attorney’s fees and nontaxablecosts that are authorized by law or by theparties’ agreement. The following proceduresapply:(1) A claim for an award must be made by

motion under RCFC 54(d)(2), subject tothe provisions of this subdivision (h), ata time the court sets. Notice of themotion must be served on all parties and,for motions by class counsel, directed to

class members in a reasonable manner.(2) A class member, or party from whom

payment is sought, may object to themotion.

(3) The court may hold a hearing and mustfind the facts and state its legalconclusions under RCFC 52(a).

(4) [Not used.]

(As revised and reissued May 1, 2002; as amendedJuly 1, 2004, Nov. 3, 2008, Jan. 11, 2010.)


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 aprovision 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 interlocutory

RCFC 23.1 40

decision 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.


to conform to the general restyling of the FRCP. In addition, subdivision (h) (“Attorney’s Fees

and Nontaxable Costs”) has been expanded to (i)recognize that an award of attorney’s fees may beauthorized either by law (as was previouslyrecognized in the rule) or “by the parties’agreement”; and (ii) include the proceduralprotections accorded class members under FRCP23(h)(1)–(3) with respect to claims for an award ofattorney’s fees.

2010 AmendmentRCFC 23(g)(1)(B) has been amended by

substituting the word “adequately” for the word“accurately” to conform to the FRCP.

Rule 23.1. Derivative Actions(a) Prerequisites. This rule applies when one or

more shareholders or members of acorporation or an unincorporated associationbring a derivative action to enforce a right thatthe corporation or association may properlyassert but has failed to enforce. Thederivative action may not be maintained if itappears that the plaintiff does not fairly andadequately represent the interests of

shareholders or members who are similarlysituated in enforcing the right of thecorporation or association.

(b) Pleading Requirements. The complaintmust be verified and must:(1) allege that the plaintiff was a shareholder

or member at the time of the transactioncomplained of, or that the plaintiff’sshare or membership later devolved on itby operation of law;

(2) allege that the action is not a collusiveone to confer jurisdiction that the courtwould otherwise lack; and

(3) state with particularity: (A) any effort by the plaintiff to obtain

the desired action from the directorsor comparable authority and, ifnecessary, from the shareholders ormembers; and

(B) the reasons for not obtaining theaction or not making the effort.

(c) Settlement, Dismissal, and Compromise. Aderivative action may be settled, voluntarilydismissed, or compromised only with thecourt’s approval. Notice of a proposedsettlement, voluntary dismissal, orcompromise must be given to shareholders ormembers in the manner that the court orders.

(Added May 1, 2002; as amended Nov. 3, 2008.)


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).

2008 AmendmentThe language of RCFC 23.1 has been

41 RCFC 23.2, 24, and 25

amended to conform to the general restyling of theFRCP.

Rule 23.2. A c t i o n s R e l a t i n g t oUnincorporated Associations[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. On timely motion, the

court must permit anyone to intervene who:(1) is given an unconditional right to

intervene by a federal statute; or(2) claims an interest relating to the property

or transaction that is the subject of theaction, and is so situated that disposingof the action may as a practical matterimpair or impede the movant’s ability toprotect its interest, unless existing partiesadequately represent that interest.

(b) Permissive Intervention.(1) In General. On timely motion, the court

may permit anyone to intervene who: (A) is given a conditional right to

intervene by a federal statute; or(B) has a claim or defense that shares

with the main action a commonquestion of law or fact.

(2) By a Government Officer or Agency.[Not used.]

(3) Delay or Prejudice. In exercising itsdiscretion, the court must considerwhether the intervention will undulydelay or prejudice the adjudication of theoriginal parties’ rights.

(c) Notice and Pleading Required. A motion tointervene must be served on the parties asprovided in RCFC 5. The motion must statethe grounds for the intervention and beaccompanied by a pleading that sets out theclaim or defense for which intervention issought.



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


to conform to the general restyling of the FRCP. In addition, as pointed out in the 2007

Committee Note in the FRCP, the final sentence insubdivision (c)—specifying that the procedurecalled for under the rule “shall be followed when astatute of the United States gives a right tointervene”—was deleted as unnecessary.

Rule 25. Substitution of Parties(a) Death.

(1) Substitution if the Claim is NotExtinguished. If a party dies and theclaim is not extinguished, the court mayorder substitution of the proper party. Amotion for substitution may be made byany party or by the decedent’s successoror representative. If the motion is notmade within 90 days after service of astatement noting the death, the action bythe decedent must be dismissed.

(2) Continuation Among the RemainingParties. After a party’s death, if the rightsought to be enforced survives only to oragainst the remaining parties, the actiondoes not abate, but proceeds in favor ofor against the remaining parties. Thedeath should be noted on the record.

(3) Service. A motion to substitute, togetherwith a notice of hearing, must be servedon the parties as provided in RCFC 5. Astatement noting death must be served inthe same manner.

(b) Incompetency. If a party becomesincompetent, the court may, on motion, permitthe action to be continued by or against theparty’s representative. The motion must be

RCFC 25 (cont.) 42

served as provided in RCFC 25(a)(3). (c) Transfer of Interest. If an interest is

transferred, the action may be continued by oragainst the original party unless the court, onmotion, orders the transferee to be substitutedin the action or joined with the original party.The motion must be served as provided inRCFC 25(a)(3).

(d) Public Officers; Death or Separation fromOffice. An action does not abate when apublic officer who is a party in an officialcapacity dies, resigns, or otherwise ceases tohold office while the action is pending. Theofficer’s successor is automaticallysubstituted as a party. Later proceedingsshould be in the substituted party’s name, butany misnomer not affecting the parties’substantial rights must be disregarded. Thecourt may order substitution at any time, butthe absence of such an order does not affectthe substitution.



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.


to conform to the general restyling of the FRCP. In addition, subdivision (d) (“Public Officers;

Death or Separation from Office”), which isidentical in text to FRCP 25(d) but was previously“not used,” was added in recognition of theprovision’s potential applicability to claims forcompensation filed in this court under the NationalChildhood Vaccine Injury Act. In such suits, apublic officer (the Secretary of Health and HumanServices) is always the named respondent.

43 RCFC 26

TITLE V. D I S C L O S U R E S A N DDISCOVERY

Rule 26. Duty to Disclose; General ProvisionsGoverning Discovery

(a) Required Disclosures.(1) Initial Disclosure.

(A) In General. Except as exempted byRCFC 26(a)(1)(B) or as otherwisestipulated or ordered by the court, aparty must, without awaiting adiscovery request, provide to theother parties:(i) the name and, if known, the

address and telephone numberof each individual likely toh a v e d i s c o v e r a b l einformation—along with thes u b j e c t s o f t h a ti n f o r m a t i o n — t h a t t h edisclosing party may use tosupport its claims or defenses,unless the use would be solelyfor impeachment;

(ii) a copy—or a description bycategory and location—of alldocuments, electronicallystored information, andtangible things that thedisclosing party has in itspossession, custody, or controland may use to support itsclaims or defenses, unless theuse would be solely forimpeachment;

(iii) a computation of each categoryof damages claimed by thedisclosing party—who mustalso make available forinspection and copying asunder RCFC 34 the documentsor other evidentiary material,unless privileged or protectedfrom disclosure, on which eachcomputat ion is based,including materials bearing on

the nature and extent ofinjuries suffered; and

(iv) [not used].(B) Proceedings Exempt from Initial

Disclosure. The followingproceedings are exempt from initialdisclosure:(i) an action for review on an

a d mi n i s t r a t i v e r e c o r d ,including procurement protestand military pay cases;

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

attorney by a person in thecustody of the United States, astate, or a state subdivision;

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

arbitration award; and(x) an action under the National

Childhood Vaccine Injury Act.(C) Time for Initial Disclosures—In

General. A party must make theinitial disclosures at or within 14days after the Early Meeting ofCounsel (see Appendix A ¶3) unlessa different time is set by stipulationor court order, or unless a partyobjects during the conference thatinitial disclosures are notappropriate in this action and statesthe objection in the JointPreliminary Status Report. In rulingon the objection, the court mustdetermine what disclosures, if any,are to be made and must set the timefor disclosure.

(D) Time for Initial Disclosures—ForParties Served or Joined Later. Aparty that is first served orotherwise joined after the EarlyMeeting of Counsel (see Appendix

RCFC 26 (cont.) 44

A ¶3) must make the initialdisclosures within 30 days afterbeing served or joined, unless adifferent time is set by stipulation orcourt order.

(E) Basis for Initial Disclosure;Unacceptable Excuses. A partymust make its initial disclosuresbased on the information thenreasonably available to it. A partyis not excused from making itsdisclosures because it has not fullyinvestigated the case or because itchallenges the sufficiency ofanother party’s disclosures orbecause another party has not madeits disclosures.

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

disclosures required by RCFC26(a)(1), a party must disclose tothe other parties the identity of anywitness it may use at trial to presentevidence under Federal Rule ofEvidence 702, 703, or 705.

(B) Witnesses Who Must Provide aWritten Report. Unless otherwisestipulated or ordered by the court,t h i s d i s c l o s u r e mu s t beaccompanied by a writtenreport—prepared and signed by thewitness—if the witness is oneretained or specially employed toprovide expert testimony in the caseor one whose duties as the party’semployee regularly involve givingexpert testimony. The report mustcontain:(i) a complete statement of all

opinions the witness willexpress and the basis andreasons for them;

(ii) the facts or data considered bythe witness in forming them;

(iii) any exhibits that will be usedto summarize or support them;

(iv) the witness’s qualifications,including a list of allpublications authored in theprevious 10 years;

(v) a list of all other cases inwhich, during the previous 4years, the witness testified asan expert at trial or bydeposition; and

(vi) a s t a t e m e n t o f t h ecompensation to be paid forthe study and testimony in thecase.

(C) Witnesses Who Do Not Provide aWritten Report. Unless otherwisestipulated or ordered by the court, ifthe witness is not required toprovide a written report, thisdisclosure must state: (i) the subject matter on which the

witness is expected to presentevidence under Federal Rule ofEvidence 702, 703, or 705; and

(ii) a summary of the facts andopinions to which the witnessis expected to testify.

(D) Time to Di sclose ExpertTestimony. A party must makethese disclosures at the times and inthe sequence that the court orders.Absent a stipulation or a court order(see Appendix A ¶¶ 5 and 8), thedisclosures must be made:(i) at least 70 days before the

scheduled close of discovery;or

(ii) if the evidence is intendedsolely to contradict or rebutevidence on the same subjectmatter identified by anotherparty under RCFC 26(a)(2)(B)or (C), within 30 days after theother party’s disclosure.

(E) Supplementing the Disclosure.The parties must supplement thesedisclosures when required under

45 RCFC 26 (cont.)

RCFC 26(e)(3) Pretrial Disclosures. [Not used; see

Appendix A ¶¶ 13, 15, and 16.](4) Form of Disclosures. Unless the court

orders otherwise, all disclosures underRCFC 26(a) must be in writing, signed,and served.

(b) Discovery Scope and Limits.(1) Scope in General. Unless otherwise

limited by court order, the scope ofdiscovery is as follows: Parties mayobtain discovery regarding anynonprivileged matter that is relevant toany party’s claim or defense—includingthe existence, description, nature,custody, condition, and location of anydocuments or other tangible things andthe identity and location of persons whoknow of any discoverable matter. Forgood cause, the court may orderdiscovery of any matter relevant to thesubject matter involved in the action.Relevant information need not beadmissible at the trial if the discoveryappears reasonably calculated to lead tothe discovery of admissible evidence.All discovery is subject to the limitationsimposed by RCFC 26(b)(2)(C).

(2) Limitations on Frequency and Extent.(A) When Permitted. By order, the

court may alter the limits in theserules on the number of depositionsand interrogatories or on the lengthof depositions under RCFC 30. Byorder, the court may also limit thenumber of requests under RCFC 36.

(B) S p e c i f i c L i m i t a t i o n s o nElectronically Stored Information.A party need not provide discoveryof electronically stored informationfrom sources that the partyidentifies as not reasonablyaccessible because of undue burdenor cost. On motion to compeldiscovery or for a protective order,the party from whom discovery is

sought must show that theinformation is not reasonablyaccessible because of undue burdenor cost. If that showing is made, thecourt may nonetheless orderdiscovery from such sources if therequesting party shows good cause,considering the limitations of RCFC26(b)(2)(C). The court may specifyconditions for the discovery.

(C) When Required. On motion or onits own, the court must limit thefrequency or extent of discoveryotherwise allowed by these rules ifit determines that:(i) the discovery sought is

unreasonably cumulative orduplicative, or can be obtainedfrom some other source that ismore convenient , lessburdensome, or less expensive;

(ii) the party seeking discovery hashad ample opportunity toobtain the information bydiscovery in the action; or

(iii) the burden or expense of theproposed discovery outweighsits likely benefit, consideringthe needs of the case, theamount in controversy, thepart ies’ resources, theimportance of the issues atstake in the action, and theimportance of the discovery inresolving the issues.

(3) Trial Preparation: Materials. (A) Documents and Tangible Things.

Ordinarily, a party may not discoverdocuments and tangible things thatare prepared in anticipation oflitigation or for trial by or foranother party or its representative(including the other party’sattorney, consultant, surety,indemnitor, insurer, or agent). But,subject to RCFC 26(b)(4), those

RCFC 26 (cont.) 46

materials may be discovered if:(i) t h e y a r e o t h e r w i s e

discoverable under RCFC26(b)(1); and

(ii) the party shows that it hassubstantial need for thematerials to prepare its caseand cannot, without unduehardship, ob ta in the irsubstantial equivalent by othermeans.

(B) Protection Against Disclosure. Ifthe court orders discovery of thosematerials, it must protect againstdisc losure of the mentalimpressions, conclusions, opinions,or legal theories of a party’sattorney or other representativeconcerning the litigation.

(C) Previous Statement. Any party orother person may, on request andwithout the required showing,obtain the person’s own previousstatement about the action or itssubject matter. If the request isrefused, the person may move for acourt order, and RCFC 37(a)(5)applies to the award of expenses. Aprevious statement is either:(i) a written statement that the

person has signed or otherwiseadopted or approved; or

(ii) a c o n t e m p o r a n e o u sstenographic, mechanical,e l e c t r i c a l , o r o t h e rrecording—or a transcriptionof it—that recites substantiallyverbatim the person’s oralstatement.

(4) Trial Preparation: Experts.(A) Deposition of an Expert Who May

Testify. A party may depose anyperson who has been identified asan expert whose opinions may bepresented at trial. If RCFC26(a)(2)(B) requires a report from

the expert, the deposition may beconducted only after the report isprovided.

(B) Trial-Preparation Protection forDraft Reports or Disclosures.RCFC 26(b)(3)(A) and (B) protectdrafts of any report or disclosurerequired under RCFC 26(a)(2),regardless of the form in which thedraft is recorded.

(C) Trial-Preparation Protection forCommunications Between aParty’s Attorney and ExpertWitnesses. RCFC 26(b)(3)(A) and(B) protect communicationsbetween the party’s attorney andany witness required to provide areport under RCFC 26(a)(2)(B),regardless of the form of thecommunications, except to theextent that the communications:(i) relate to compensation for the

expert’s study or testimony;(ii) identify facts or data that the

party’s attorney provided andthat the expert considered informing the opinions to beexpressed; or

(iii) identify assumptions that theparty’s attorney provided andthat the expert relied on informing the opinions to beexpressed.

(D) Expert Employed Only for TrialPreparation. Ordinarily, a partymay not, by interrogatories ordeposition, discover facts known oropinions held by an expert who hasbeen retained or specially employedby another party in anticipation oflitigation or to prepare for trial andwho is not expected to be called asa witness at trial. But a party maydo so only: (i) as provided in RCFC 35(b); or(ii) on showing exceptional

47 RCFC 26 (cont.)

circumstances under which itis impracticable for the party toobtain facts or opinions on thesame subject by other means.

(E) Payment. Unless manifest injusticewould result, the court must requirethat the party seeking discovery:(i) pay the expert a reasonable fee

for time spent in responding todiscovery under RCFC26(b)(4)(A) or (D); and

(ii) for discovery under (D), alsopay the other party a fairportion of the fees andexpenses it reasonably incurredin obtaining the expert’s factsand opinions.

(5) Claiming Privilege or Protecting Trial-Preparation Materials. (A) Information Withheld. When a

party withholds informationotherwise discoverable by claimingthat the information is privileged orsubject to protection as trial-preparation material, the party must:(i) expressly make the claim; and(ii) describe the nature of the

documents, communications,or tangible things not producedor disclosed—and do so in amanner that, without revealinginformation itself privileged orprotected, will enable otherparties to assess the claim.

(B) Information Produced. Ifinformation produced in discovery issubject 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; mustnot use or disclose the information untilthe claim is resolved; must take

reasonable steps to retrieve theinformation if the party disclosed itbefore being notified; and may promptlypresent the information to the courtunder seal for a determination of theclaim. The producing party mustpreserve the information until the claimis resolved.

(c) Protective Orders.(1) In General. A party or any person from

whom discovery is sought may move fora protective order. The motion mustinclude a certification that the movanthas in good faith conferred or attemptedto confer with other affected parties in aneffort to resolve the dispute without courtaction. The court may, for good cause,issue an order to protect a party or personfrom annoyance, embarrassment,oppression, or undue burden or expense,including one or more of the following:(A) forbidding the disclosure or

discovery;(B) specifying terms, including time and

place, for the disclosure ordiscovery;

(C) prescribing a discovery methodother than the one selected by theparty seeking discovery;

(D) forbidding inquiry into certainmatters, or limiting the scope ofdisclosure or discovery to certainmatters;

(E) designating the persons who may bepresent while the discovery isconducted;

(F) requiring that a deposition be sealedand opened only on court order;

(G) requiring that a trade secret or otherconfidential research, development,or commercial information not berevealed or be revealed only in aspecified way; and

(H) requir ing that the part iessimultaneously file specifieddocuments or information in sealed

RCFC 26 (cont.) 48

envelopes, to be opened as the courtdirects.

(2) Ordering Discovery. If a motion for aprotective order is wholly or partlydenied, the court may, on just terms,order that any party or person provide orpermit discovery.

(3) Awarding Expenses. RCFC 37(a)(5)applies to the award of expenses.

(d) Timing and Sequence of Discovery.(1) Timing. A party may not seek discovery

from any source before the parties haveconferred as required by Appendix A ¶ 3,except in a proceeding exempted frominitial disclosure under RCFC26(a)(1)(B), or when authorized by theserules, by stipulation, or by court order.

(2) Sequence. Unless, on motion, the courtorders otherwise for the parties’ andwitnesses’ convenience and in theinterests of justice:(A) methods of discovery may be used

in any sequence; and(B) discovery by one party does not

require any other party to delay itsdiscovery.

(e) Supplementing Disclosures and Responses.(1) In General. A party who has made a

disclosure under RCFC 26(a)—or whohas responded to an interrogatory,request for production, or request foradmission—must supplement or correctits disclosure or response:(A) in a timely manner if the party

learns that in some material respectthe disclosure or response isincomplete or incorrect, and if theadditional or corrective informationhas not otherwise been made knownto the other parties during thediscovery process or in writing; or

(B) as ordered by the court. (2) Expert Witness. For an expert whose

report must be disclosed under RCFC26(a)(2)(B), the party’s duty tosupplement extends both to information

included in the report and to informationgiven during the expert’s deposition.Any additions or changes to thisinformation must be disclosed by thetime the party’s pretrial disclosuresunder RCFC 26(a)(3) are due.

(f) Conference of the Parties; Planning forDiscovery. [Not used; see Appendix A ¶ 3.]

(g) Signing Disclosures and DiscoveryRequests, Responses, and Objections.(1) Signature Required; Effect of

Signature. Every disclosure underRCFC 26(a)(1) or Appendix A ¶¶ 13, 15,and 16, and every discovery request,response, or objection must be signed bythe attorney of record in the attorney’sown name—or by the party personally, ifunrepresented—and must state thesigner’s address, e-mail address, andtelephone number. By signing, anattorney or party certifies that to the bestof the person’s knowledge, information,and belief formed after a reasonableinquiry:(A) with respect to a disclosure, it is

complete and correct as of the timeit is made; and

(B) with respect to a discovery request,response, or objection, it is:(i) consistent with these rules and

warranted by existing law orby a nonfrivolous argument forextending, modifying, orreversing existing law, or forestablishing new law;

(ii) not interposed for anyimproper purpose, such as toharass, cause unnecessarydelay, or needlessly increasethe cost of litigation; and

(iii) neither unreasonable norunduly burdensome orexpensive, considering theneeds of the case, priordiscovery in the case, theamount in controversy, and the

49 RCFC 27

importance of the issues atstake in the action.

(2) Failure to Sign. Other parties have noduty to act on an unsigned disclosure,request, response, or objection until it issigned, and the court must strike it unlessa signature is promptly supplied after theomission is called to the attorney’s orparty’s attention.

(3) Sanction for Improper Certification. Ifa certification violates this rule withoutsubstantial justification, the court, onmotion or on its own, must impose anappropriate sanction on the signer, theparty on whose behalf the signer wasacting, or both. The sanction mayinclude an order to pay the reasonableexpenses, including attorney’s fees,caused by the violation.

(As revised and reissued May 1, 2002; as amendedNov. 15, 2007, Nov. 3, 2008, July 15, 2011.)


RCFC 26 has been revised to parallel thestructure 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.


to conform to the general restyling of the FRCP.In addition, the references in former

subparagraph (a)(1)(E) to the initial disclosurerequirements after the filing of the JointPreliminary Status Report have been changed innow-restyled subparagraphs (a)(1)(C) and (D) to“after the Early Meeting of Counsel” to reflect thecorresponding event (the Rule 26(f) conference)identified in the federal rule.

2011 AmendmentRCFC 26 has been amended in accordance

with the corresponding changes to FRCP 26 thatbecame effective December 1, 2010.

Rule 27. Depositions to Perpetuate Testimony(a) Before an Action Is Filed.

(1) Petition. A person who wants toperpetuate testimony about any mattercognizable in the court may file averified petition. The petition must askfor an order authorizing the petitioner todepose the named persons in order toperpetuate their testimony. The petitionmust be titled in the petitioner’s nameand must show:(A) that the petitioner expects to be a

party to an action cognizable in thecourt but cannot presently bring itor cause it to be brought;

(B) the subject matter of the expectedaction and the petitioner’s interest;

(C) the facts that the petitioner wants toestablish by the proposed testimonyand the reasons to perpetuate it;

(D) [not used]; and(E) the name, address, and expected

substance of the testimony of eachdeponent.

(2) Notice and Service. The petitioner mustserve the United States with a copy ofthe petition in the same manner as thecomplaint. See RCFC 4. The petitionermay thereafter request a hearing by

RCFC 28 50

motion served on counsel for the UnitedStates (see RCFC 5), or on its own, thecourt may order a hearing on the petition.

(3) Order and Examination. If satisfied thatperpetuating the testimony may preventa failure or delay of justice, the courtmust issue an order that designates ordescribes the persons whose depositionsmay be taken, specifies the subjectmatter of the examinations, and stateswhether the depositions will be takenorally or by written interrogatories. Thedepositions may then be taken underthese rules, and the court may issueorders like those authorized by RCFC 34and 35.

(4) Using the Deposition. A deposition toperpetuate testimony may be used underRCFC 32(a) in any later-filed action inthis court involving the same subjectmatter if the deposition was taken underthese rules.

(b) Pending Appeal.(1) In General. If a judgment has been

rendered and an appeal has been taken ormay still be taken, the court may permita party to depose witnesses to perpetuatetheir testimony for use in the event offurther proceedings in the court.

(2) Motion. The party who wants toperpetuate testimony may move for leaveto take the depositions, on the samenotice and service as if the action werepending in this court. The motion mustshow:(A) the name, address, and expected

substance of the testimony of eachdeponent; and

(B) the reasons for perpetuating thetestimony.

(3) Court Order. If the court finds thatperpetuating the testimony may preventa failure or delay of justice, the courtmay permit the depositions to be takenand may issue orders like thoseauthorized by RCFC 34 and 35. The

depositions may be taken and used as anyother deposition taken in an actionpending in this court.

(c) Perpetuation by an 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. (1) In General. Within the United States or

a territory or insular possession subjectto United States jurisdiction, a depositionmust be taken before:(A) an officer authorized to administer

oaths either by federal law or by thelaw in the place of examination; or

(B) a person appointed by the court toadminister oaths and take testimony.

(2) Definition of “Officer.” The term“officer” in RCFC 30, 31, and 32includes a person appointed by the courtunder this rule or designated by theparties under RCFC 29(a).

(b) In a Foreign Country.(1) In General. A deposition may be taken

in a foreign country:(A) under an applicable treaty or

convention;(B) under a letter of request, whether or

not captioned a “letter rogatory”; (C) on notice, before a person

authorized to administer oaths eitherby federal law or by the law in theplace of examination; or

51 RCFC 29 and 30

(D) before a person commissioned bythe court to administer anynecessary oath and take testimony.

(2) Issuing a Letter of Request or aCommission. A letter of request, acommission, or both may be issued:(A) on appropriate terms after an

application and notice of it; and(B) without a showing that taking the

deposition in another manner isimpracticable or inconvenient.

(3) Form of a Request, Notice, orCommission. When a letter of request orany other device is used according to atreaty or convention, it must be captionedin the form prescribed by that treaty orconvention. A letter of request may beaddressed “To the Appropriate Authorityin [name of country].” A depositionnotice or a commission must designateby name or descriptive title the personbefore whom the deposition is to betaken.

(4) Letter of Request—Admitting Evidence. Evidence obtained in response to a letterof request need not be excluded merelybecause it is not a verbatim transcript,because the testimony was not takenunder oath, or because of any similardeparture from the requirements fordepositions taken within the UnitedStates.

(c) Disqualification. A deposition must not betaken before a person who is any party’srelative, employee, or attorney; who is relatedto or employed by any party’s attorney; orwho is financially interested in the action.



RCFC 28 parallels in form and content FRCP28. The single difference between the two rulesoccurs in subdivision (a): the court’s rule

eliminates the reference to other courts by omittingthe phrasing “in which the action is pending.”



Rule 29. St ipulat ions About DiscoveryProcedure

Unless the court orders otherwise, the parties maystipulate that:(a) a deposition may be taken before any person,

at any time or place, on any notice, and in themanner specified—in which event it may beused in the same way as any other deposition;and

(b) other procedures governing or limitingdiscovery be modified—but a stipulationextending the time for any form of discoverymust have court approval if it would interferewith the time set for completing discovery, forhearing a motion, or for trial.



RCFC 29 is identical to its FRCP counterpart.

2008AmendmentThe language of RCFC 29 has been amended


Rule 30. Depositions by Oral Examination(a) When a Deposition May Be Taken.

(1) Without Leave. A party may, by oralquestions, depose any person, includinga party, without leave of court except asprovided in RCFC 30(a)(2). Thedeponent’s attendance may be compelledby subpoena under RCFC 45.

(2) With Leave. A party must obtain leaveof court, and the court must grant leaveto the extent consistent with RCFC26(b)(2):

RCFC 30 (cont.) 52

(A) if the parties have not stipulated tothe deposition and:(i) the deposition would result in

more than 10 depositions beingtaken under this rule or RCFC31 by the plaintiffs, or by thedefendant, or by the third-partydefendants;

(ii) the deponent has already beendeposed in the case; or

(iii) the party seeks to take thedeposition before the timespecified in RCFC 26(d),unless the party certifies in thenotice, with supporting facts,that the deponent is expectedto leave the United States andbe unavailable for examinationin this country after that time;or

(B) if the deponent is confined inprison.

(b) Notice of the Deposition; Other FormalRequirements.(1) Notice in General. A party who wants

to depose a person by oral questionsmust give reasonable written notice toevery other party. The notice must statethe time and place of the deposition and,if known, the deponent’s name andaddress. If the name is unknown, thenotice must provide a general descriptionsufficient to identify the person or theparticular class or group to which theperson belongs.

(2) Producing Documents. If a subpoenaduces tecum is to be served on thedeponent, the materials designated forproduction, as set out in the subpoena,must be listed in the notice or in anattachment. The notice to a partydeponent may be accompanied by arequest under RCFC 34 to producedocuments and tangible things at thedeposition.

(3) Method of Recording.

(A) Method Stated in the Notice. Theparty who notices the depositionmust state in the notice the methodfor recording the testimony. Unlessthe court orders otherwise,testimony may be recorded byaudio, audiovisual, or stenographicmeans. The noticing party bears therecording costs. Any party mayarrange to transcribe a deposition.

(B) Additional Method. With priornotice to the deponent and otherparties, any party may designateanother method for recording thetestimony in addition to thatspecified in the original notice.That party bears the expense of theadditional record or transcriptunless the court orders otherwise.

(4) By Remote Means. The parties maystipulate—or the court may on motionorder—that a deposition be taken bytelephone or other remote means. Forthe purpose of this rule and RCFC 28(a)and 37(b)(1), the deposition takes placewhere the deponent answers thequestions.

(5) Officer’s Duties.(A) Before the Deposition. Unless the

parties stipulate otherwise, adeposition must be conductedbefore an officer appointed ordesignated under RCFC 28. Theofficer must begin the depositionwith an on-the-record statement thatincludes:(i) the officer’s name and

business address;(ii) the date, time, and place of the

deposition;(iii) the deponent’s name;(iv) the officer’s administration of

the oath or affirmation to thedeponent; and

(v) the identity of all personspresent.

53 RCFC 30 (cont.)

(B) Conducting the Deposition;Avoiding Distortion. If thed e p o s i t i o n i s r e c o r d e dnonstenographically, the officermust repeat the items in RCFC30(b)(5)(A)(i)–(iii) at the beginningof each unit of the recordingmedium. The deponent’s andattorneys’ appearance or demeanormust not be distorted throughrecording techniques.

(C) After the Deposition. At the end ofa deposition, the officer must stateon the record that the deposition iscomplete and must set out anystipulations made by the attorneysabout custody of the transcript orrecording and of the exhibits, orabout any other pertinent matters.

(6) Notice or Subpoena Directed to anOrganization. In its notice or subpoena,a party may name as the deponent apublic or private corporation, apartnership, an association, agovernmental agency, or other entity andmust describe with reasonableparticularity the matters for examination.The named organization must thendesignate one or more officers, directors,or managing agents, or designate otherpersons who consent to testify on itsbehalf; and it may set out the matters onwhich each person designated willtestify. A subpoena must advise anonparty organization of its duty to makethis designation. The persons designatedmust testify about information known orreasonably available to the organization.This paragraph (6) does not preclude adeposition by any other procedureallowed by these rules.

(c) Examination and Cross-Examination;Record of the Examination; Objections;Written Questions.(1) Examination and Cross-Examination.

The examination and cross-examinationof a deponent proceed as they would at

trial under the Federal Rules ofEvidence, except Rules 103 and 615.After putting the deponent under oath oraffirmation, the officer must record thetestimony by the method designatedunder RCFC 30(b)(3)(A). The testimonymust be recorded by the officerpersonally or by a person acting in thepresence and under the direction of theofficer.

(2) Objections. An objection at the time ofthe examination—whether to evidence,to a party’s conduct, to the officer’squalifications, to the manner of takingthe deposition , or to any other aspect ofthe deposition—must be noted on therecord, but the examination stillproceeds; the testimony is taken subjectto any objection. An objection must bestated concisely in a nonargumentativeand nonsuggestive manner. A personmay instruct a deponent not to answeronly when necessary to preserve aprivilege, to enforce a limitation orderedby the court, or to present a motion underRCFC 30(d)(3).

(3) Participating Through Writ tenQuestions. Instead of participating in theoral examination, a party may servewritten questions in a sealed envelope onthe party noticing the deposition, whomust deliver them to the officer. Theofficer must ask the deponent thosequestions and record the answersverbatim.

(d) Duration; Sanction; Motion to Terminateor Limit. (1) Duration. Unless otherwise stipulated or

ordered by the court, a deposition islimited to 1 day of 7 hours. The courtmust allow additional time consistentwith RCFC 26(b)(2) if needed to fairlyexamine the deponent or if the deponent,another person, or any othercircumstance impedes or delays theexamination.

RCFC 30 (cont.) 54

(2) Sanction. The court may impose anappropriate sanction—including thereasonable expenses and attorney’s feesincurred by any party—on a person whoimpedes, delays, or frustrates the fairexamination of the deponent.

(3) Motion to Terminate or Limit.(A) Grounds. At any time during a

deposition, the deponent or a partymay move to terminate or limit it onthe ground that it is being conductedin bad faith or in a manner thatunreasonably annoys, embarrasses,or oppresses the deponent or party.If the objecting deponent or party sodemands, the deposition must besuspended for the time necessary toobtain an order.

(B) Order. The court may order that thedeposition be terminated or maylimit its scope and manner asprovided in RCFC 26(c). Ifterminated, the deposition may beresumed only by order of the court.

(C) Award of Expenses. RCFC37(a)(5) applies to the award ofexpenses.

(e) Review by the Witness; Changes.(1) Review; Statement of Changes. On

request by the deponent or a party beforethe deposition is completed, the deponentmust be allowed 30 days after beingnotified by the officer that the transcriptor recording is available in which:(A) to review the transcript or

recording; and(B) if there are changes in form or

substance, to sign a statement listingthe changes and the reasons formaking them.

(2) Changes Indicated in the Officer’sCertificate. The officer must note in thecertificate prescribed by RCFC 30(f)(1)whether a review was requested and, ifso, must attach any changes the deponentmakes during the 30-day period.

(f) Certification and Delivery; Exhibits;Copies of the Transcript or Recording;Filing.(1) Certification and Delivery. The officer

must certify in writing that the witnesswas duly sworn and that the depositionaccurately records the witness’stestimony. The certificate mustaccompany the record of the deposition.Unless the court orders otherwise, theofficer must seal the deposition in anenvelope or package bearing the title ofthe action and marked “Deposition of[witness’s name]” and must promptlysend it to the attorney who arranged forthe transcript or recording. The attorneymust store it under conditions that willprotect it against loss, destruction,tampering, or deterioration.

(2) Documents and Tangible Things.(A) Originals and Copies. Documents

and tangible things produced forinspection during a deposition must,on a party’s request, be marked foridentification and attached to thedeposition. Any party may inspectand copy them. But if the personwho produced them wants to keepthe originals, the person may:(i) offer copies to be marked,

attached to the deposition, andthen used as originals—aftergiving all parties a fairopportunity to verify thecopies by comparing them withthe originals; or

(ii) give all parties a fairopportunity to inspect andcopy the originals after theyare marked—in which eventthe originals may be used as ifattached to the deposition.

(B) Order Regarding the Originals.Any party may move for an orderthat the originals be attached to thedeposition pending final disposition

55 RCFC 31

of the case.(3) Copies of the Transcript or Recording.

Unless otherwise stipulated or ordered bythe court, the officer must retain thestenographic notes of a deposition takenstenographically or a copy of therecording of a deposition taken byanother method. When paid reasonablecharges, the officer must furnish a copyof the transcript or recording to any partyor the deponent.

(4) Notice of Filing. [Not used.](g) Failure to Attend a Deposition or Serve a

Subpoena; Expenses. A party who,expecting a deposition to be taken, attends inperson or by an attorney may recoverreasonable expenses for attending, includingattorney’s fees, if the noticing party failed to:(1) attend and proceed with the deposition;

or(2) serve a subpoena on a nonparty

deponent, who consequently did notattend.



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 by Written Questions(a) When a Deposition May Be Taken.

(1) Without Leave. A party may, by writtenquestions, depose any person, includinga party, without leave of court except asprovided in RCFC 31(a)(2). Thedeponent’s attendance may be compelled

by subpoena under RCFC 45.(2) With Leave. A party must obtain leave of

court, and the court must grant leave tothe extent consistent with RCFC26(b)(2):(A) if the parties have not stipulated to

the deposition and:(i) the deposition would result in

more than 10 depositions beingtaken under this rule or RCFC30 by the plaintiffs, or by thedefendant, or by the third-partydefendants;

(ii) the deponent has already beendeposed in the case; or

(iii) the party seeks to take adeposition before the timespecified in RCFC 26(d); or

(B) if the deponent is confined inprison.

(3) Service; Required Notice. A party whowants to depose a person by writtenquestions must serve them on every otherparty, with a notice stating, if known, thedeponent’s name and address. If thename is unknown, the notice mustprovide a general description sufficientto identify the person or the particularclass or group to which the personbelongs. The notice must also state thename or descriptive title and the addressof the officer before whom thedeposition will be taken.

(4) Questions Directed to an Organization.A public or private corporation, apartnership, an association, or agovernmental agency may be deposed bywritten questions in accordance withRCFC 30(b)(6).

(5) Questions from Other Parties. Anyquestions to the deponent from otherparties must be served on all parties asfollows: cross-questions, within 14 daysafter being served with the notice anddirect questions; redirect questions,within 7 days after being served with

RCFC 32 56

cross-questions; and recross-questions,within 7 days after being served withredirect questions. The court may, forgood cause, extend or shorten thesetimes.

(b) Delivery to the Officer; Officer’s Duties.The party who noticed the deposition mustdeliver to the officer a copy of all questionsserved and of the notice. The officer mustpromptly proceed in the manner provided inRCFC 30(c), (e), and (f) to:(1) take the deponent’s testimony in

response to the questions;(2) prepare and certify the deposition; and(3) send it to the party, attaching a copy of

the questions and of the notice. (c) Notice of Completion or Filing.

(1) Completion. The party who noticed thedeposition must notify all other partieswhen it is completed.

(2) Filing. [Not used.]



RCFC 31 closely parallels the text ofFRCP 31. Subdivision (a) is identical in wordingto the current FRCP. Subdivisions (b) and (c) arenearly identical, the only differences being thosenecessary to reflect the court’s practice of notrequiring depositions to be filed.



Rule 32. Us ing Deposit ions in CourtProceedings

(a) Using Depositions.(1) In General. At a hearing or trial, all or

part of a deposition may be used againsta party on these conditions:(A) the party was present or represented

at the taking of the deposition or

had reasonable notice of it;(B) it is used to the extent it would be

admissible under the Federal Rulesof Evidence if the deponent werepresent and testifying; and

(C) the use is allowed by RCFC32(a)(2) through (8).

(2) Impeachment and Other Uses. Anyparty may use a deposition to contradictor impeach the testimony given by thedeponent as a witness, or for any otherpurpose allowed by the Federal Rules ofEvidence.

(3) Deposition of Party, Agent, or Designee.An adverse party may use for anypurpose the deposition of a party oranyone who, when deposed, was theparty’s officer, director, managing agent,or designee under RCFC 30(b)(6) or31(a)(4).

(4) Unavailable Witness. A party may usefor any purpose the deposition of awitness, whether or not a party, if thecourt finds: (A) that the witness is dead;(B) that the witness is outside the

United States, unless it appears thatthe witness’s absence was procuredby the party offering the deposition;

(C) that the witness cannot attend ortestify because of age, illness,infirmity, or imprisonment;

(D) that the party offering thedeposition could not procure thewitness’s attendance by subpoena;or

(E) on motion and notice, thatexceptional circumstances make itdesirable—in the interest of justiceand with due regard to theimportance of live testimony inopen court—to permit thedeposition to be used.

(5) Limitations on Use.(A) Deposition Taken on Short Notice.

A deposition must not be used

57 RCFC 32 (cont.)

against a party who, having receivedless than 14 days’ notice of thedeposition, promptly moved for aprotective order under RCFC26(c)(1)((B) requesting that it notbe taken or be taken at a differenttime or place—and this motion wasstill pending when the depositionwas taken.

(B) Unavailable Deponent; PartyCould Not Obtain an Attorney. Adeposition taken without leave ofcourt under the unavailabilityprovision of RCFC 30(a)(2)(A)(iii)must not be used against a partywho shows that, when served withthe notice, it could not, despitediligent efforts, obtain an attorneyto represent it at the deposition.

(6) Using Part of a Deposition. If a partyoffers in evidence only part of adeposition, an adverse party may requirethe offeror to introduce other parts that infairness should be considered with thepart introduced, and any party may itselfintroduce any other parts.

(7) Substituting a Party. Substituting aparty under RCFC 25 does not affect theright to use a deposition previouslytaken.

(8) Deposition Taken in an Earlier Action.A deposition lawfully taken and, ifrequired, filed in any federal- or state-court action may be used in a later actioninvolving the same subject matterbetween the same parties, or theirrepresentatives or successors in interest,to the same extent as if taken in the lateraction. A deposition previously takenmay also be used as allowed by theFederal Rules of Evidence.

(b) Objections to Admissibility. Subject toRCFC 28(b) and 32(d)(3), an objection maybe made at a hearing or trial to the admissionof any deposition testimony that would beinadmissable if the witness were present and

testifying.(c) Form of Presentation. Unless the court

orders otherwise, a party must provide atranscript of any deposition testimony theparty offers, but may provide the court withthe testimony in nontranscript form as well.

(d) Waiver of Objections. (1) To the Notice. An objection to an error

or irregularity in a deposition notice iswaived unless promptly served in writingon the party giving the notice.

(2) To the Officer’s Qualification. Anobjection based on disqualification of theofficer before whom a deposition is to betaken is waived if not made:(A) before the deposition begins; or(B) promptly after the basis for

disqualification becomes known or,with reasonable diligence, couldhave been known.

(3) To the Taking of the Deposition.(A) Objec t ion to Com petence ,

Relevance, or Materiality. Anobjection to a deponent’scompetence—or to the competence,relevance, or materiality oftestimony—is not waived by afailure to make the objection beforeor during the deposition, unless theground for it might have beencorrected at that time.

(B) Objection to an Error orIrregularity. An objection to anerror or irregularity at an oralexamination is waived if:(i) it relates to the manner of

taking the deposition, the formof a question or answer, theoath or affirmation, a party’sconduct, or other matters thatmight have been corrected atthat time; and

(ii) it is not timely made during thedeposition.

(C) Objection to a Written Question.An objection to the form of a

RCFC 33 58

written question under RCFC 31 iswaived if not served in writing onthe party submitting the questionwithin the time for servingresponsive questions or, if thequestion is a recross-question,within 7 days after being servedwith it.

(4) To Completing and Returning theDeposition. An objection to how theofficer transcribed the testimony—orprepared, signed, certified, sealed,endorsed, sent, or otherwise dealt withthe deposition—is waived unless amotion to suppress is made promptlyafter the error or irregularity becomesknown or, with reasonable diligence,could have been known.



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.


to conform to the general restyling of the FRCP.In addition, in the interest of structural clarity,

the text of former subparagraph (a)(3)(E) (relatingto the requirement governing the use at trial of thedeposition of a witness located more than 100miles from the place of trial or hearing) has beenincorporated into restyled subparagraph (a)(4)(B).

2010 AmendmentRCFC 32(a)(4) has been amended to more

closely parallel its FRCP counterpart, except thatthe provision in subparagraph (a)(4)(B) allowingthe use of deposition testimony where the witnessis more than 100 miles from the place of trial hasbeen stricken to reinforce the court’s clearpreference for live testimony, particularly given theavailability of video and telephone conferencing.A witness’s distance from the place of trial maynevertheless be considered as a basis for theallowance of deposition testimony under the“exceptional circumstances” provision ofsubparagraph (a)(4)(E).

In addition, the time periods of 11 and 5 daysformerly set forth in RCFC 32 have been changedto 14 and 7 days, respectively, in accordance withthe corresponding changes to FRCP 32 that becameeffective December 1, 2009.

Rule 33. Interrogatories to Parties(a) In General.

(1) Number. Unless otherwise stipulated orordered by the court, a party may serveon any other party no more than 25written interrogatories, including alldiscrete subparts. Leave to serveadditional interrogatories may be grantedto the extent consistent with RCFC26(b)(2).

(2) Scope. An interrogatory may relate toany matter that may be inquired intounder RCFC 26(b). An interrogatory isnot objectionable merely because it asksfor an opinion or contention that relatesto fact or the application of law to fact,but the court may order that theinterrogatory need not be answered untildesignated discovery is complete, or untila pretrial conference or some other time.

(b) Answers and Objections. (1) Responding Party. The interrogatories

must be answered:(A) by the party to whom they are

directed; or(B) if that party is a public or private

corporation, a partnership, anassociation, or a governmental

59 RCFC 34

agency, by any officer or agent, whomust furnish the informationavailable to the party.

(2) Time to Respond. The responding partymust serve its answers and anyobjections within 30 days after beingserved with the interrogatories. Ashorter or longer time may be stipulatedto under RCFC 29 or be ordered by thecourt.

(3) Answering Each Interrogatory. Eachinterrogatory must, to the extent it is notobjected to, be answered separately andfully in writing under oath.

(4) Objections. The grounds for objecting toan interrogatory must be stated withspecificity. Any ground not stated in atimely objection is waived unless thecourt, for good cause, excuses the failure.

(5) Signature. The person who makes theanswers must sign them, and the attorneywho objects must sign any objections.

(c) Use. An answer to an interrogatory may beused to the extent allowed by the FederalRules of Evidence.

(d) Option to Produce Business Records. If theanswer to an interrogatory may be determinedby examining, auditing, compiling,abstracting, or summarizing a party’s businessrecords (including electronically storedinformation), and if the burden of deriving orascertaining the answer will be substantiallythe same for either party, the responding partymay answer by: (1) specifying the records that must be

reviewed, in sufficient detail to enablethe interrogating party to locate andidentify them as readily as theresponding party could; and

(2) giving the interrogating party areasonable opportunity to examine andaudit the records and to make copies,compilations, abstracts, or summaries.



RCFC 33 is identical to FRCP 33.

2007 AmendmentRCFC 33 has been amended to reflect the

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



Rule 34. Producing Documents, ElectronicallyStored Information, and TangibleThings, or Entering onto Land, forInspection and Other Purposes

(a) In General. A party may serve on any otherparty a request within the scope of RCFC26(b):(1) to produce and permit the requesting

party or its representative to inspect,copy, test, or sample the following itemsin the responding party’s possession,custody, or control:(A) any designated documents or

e l e c t r o n i c a l l y s t o r e dinformation—including writings,d rawings , graphs , ch ar t s ,photographs, sound recordings,images, and other data or datacompilations—stored in anymedium from which informationcan be obtained either directly or, ifnecessary, after translation by theresponding party into a reasonablyusable form; or

(B) any designated tangible things; or(2) to permit entry onto designated land or

other property possessed or controlled bythe responding party, so that therequesting party may inspect, measure,survey, photograph, test, or sample theproperty or any designated object oroperation on it.

(b) Procedure.

RCFC 35 60

(1) Contents of the Request. The request: (A) must describe with reasonable

particularity each item or categoryof items to be inspected;

(B) must specify a reasonable time,place, and manner for the inspectionand for performing the related acts;and

(C) may specify the form or forms inwhich electronically storedinformation is to be produced.

(2) Responses and Objections. (A) Time to Respond. The party to

whom the request is directed mustrespond in writing within 30 daysafter being served. A shorter orlonger time may be stipulated tounder RCFC 29 or be ordered by thecourt.

(B) Responding to Each Item. Foreach item or category, the responsemust either state that inspection andrelated activities will be permittedas requested or state an objection tothe request, including the reasons.

(C) Objections. An objection to part ofa request must specify the part andpermit inspection of the rest.

(D) Responding to a Request forProduction of ElectronicallyStored Information. The responsemay state an objection to arequested form for producingelectronically stored information. Ifthe responding party objects to arequested form—or if no form wasspecified in the request—the partymust state the form or forms itintends to use.

(E) Producing the Documents orElectronically Stored Information.Unless otherwise stipulated orordered by the court, theseprocedures apply to producingdocuments or electronically storedinformation:

(i) A party must producedocuments as they are kept inthe usual course of business ormust organize and label themto correspond to the categoriesin the request;

(ii) If a request does not specify af o r m f o r p r o d u c i n ge l e c t r o n i c a l l y s t o r e dinformation, a party mustproduce it in a form or formsin which it is ordinarilymaintained or in a reasonablyusable form or forms; and

(iii) A party need not produce thesame electronically storedinformation in more than oneform.

(c) Nonparties. As provided in RCFC 45, anonparty may be compelled to producedocuments and tangible things or to permit aninspection.








Rule 35. Physical and Mental Examinations(a) Order for an Examination.

(1) In General. The court may order a partyw h o s e m e n t a l o r p h y s i c a lcondition—including blood group—is incontroversy to submit to a physical ormental examination by a suitably

61 RCFC 36

licensed or certified examiner. The courthas the same authority to order a party toproduce for examination a person who isin its custody or under its legal control.

(2) Motion and Notice; Contents of theOrder. The order: (A) may be made only on motion for

good cause and on notice to allparties and the person to beexamined; and

(B) must specify the time, place,manner, conditions, and scope ofthe examination, as well as theperson or persons who will performit.

(b) Examiner’s Report.(1) Request by the Party or Person

Examined. The party who moved for theexamination must, on request, deliver tothe requester a copy of the examiner’sreport, together with like reports of allearlier examinations of the samecondition. The request may be made bythe party against whom the examinationorder was issued or by the personexamined.

(2) Contents. The examiner’s report mustbe in writing and must set out in detailthe examiner’s findings, includingdiagnoses, conclusions, and the results ofany tests.

(3) Request by the Moving Party. Afterdelivering the reports, the party whomoved for the examination mayrequest—and is entitled to receive—fromthe party against whom the examinationorder was issued like reports of all earlieror later examinations of the samecondition. But those reports need not bedelivered by the party with custody orcontrol of the person examined if theparty shows that it could not obtain them.

(4) Waiver of Privilege. By requesting andobtaining the examiner’s report, or bydeposing the examiner, the partyexamined waives any privilege it may

have—in that action or any other actioni n v o l v i n g t h e s a m econtroversy—concerning testimonyabout all examinations of the samecondition.

(5) Failure to Deliver a Report. The courton motion may order—on justterms—that a party deliver the report ofan examination. If the report is notprovided, the court may exclude theexaminer’s testimony at trial.

(6) Scope. This subdivision (b) applies alsoto an examination made by the parties’agreement, unless the agreement statesotherwise. This subdivision does notpreclude obtaining an examiner’s reportor deposing an examiner under otherrules.



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) Scope and Procedure.

(1) Scope. A party may serve on any otherparty a written request to admit, forpurposes of the pending action only, thetruth of any matters within the scope ofRCFC 26(b)(1) relating to:(A) facts, the application of law to fact,

or opinions about either; and(B) the genuineness of any described

documents. (2) Form; Copy of a Document. Each

matter must be separately stated. Arequest to admit the genuineness of a

RCFC 37 62

document must be accompanied by acopy of the document unless it is, or hasbeen, otherwise furnished or madeavailable for inspection and copying.

(3) Time to Respond; Effect of NotResponding. A matter is admittedunless, within 30 days after being served,the party to whom the request is directedserves on the requesting party a writtenanswer or objection addressed to thematter and signed by the party or itsattorney. A shorter or longer time forresponding may be stipulated to underRCFC 29 or be ordered by the court.

(4) Answer. If a matter is not admitted, theanswer must specifically deny it or statein detail why the answering party cannottruthfully admit or deny it. A denialmust fairly respond to the substance ofthe matter; and when good faith requiresthat a party qualify an answer or denyonly a part of a matter, the answer mustspecify the part admitted and qualify ordeny the rest. The answering party mayassert lack of knowledge or informationas a reason for failing to admit or denyonly if the party states that it has madereasonable inquiry and that theinformation it knows or can readilyobtain is insufficient to enable it to admitor deny.

(5) Objections. The grounds for objecting toa request must be stated. A party mustnot object solely on the ground that therequest presents a genuine issue for trial.

(6) Motion Regarding the Sufficiency of anAnswer or Objection. The requestingparty may move to determine thesufficiency of an answer or objection.Unless the court finds an objectionjustified, it must order that an answer beserved. On finding that an answer doesnot comply with this rule, the court mayorder either that the matter is admitted orthat an amended answer be served. Thecourt may defer its final decision until a

pretrial conference or a specified timebefore trial. RCFC 37(a)(5) applies to anaward of expenses.

(b) Effect of an Admission; Withdrawing orAmending It. A matter admitted under thisrule is conclusively established unless thecourt, on motion, permits the admission to bewithdrawn or amended. Subject to RCFC16(e), the court may permit withdrawal oramendment if it would promote thepresentation of the merits of the action and ifthe court is not persuaded that it wouldprejudice the requesting party in maintainingor defending the action on the merits. Anadmission under this rule is not an admissionfor any other purpose and cannot be usedagainst the party in any other proceeding.






Rule 37. Failure to Make Disclosures or toCooperate in Discovery; Sanctions

(a) Motion for an Order CompellingDisclosure or Discovery. (1) In General. On notice to other parties

and all affected persons, a party maymove for an order compelling disclosureor discovery. The motion must include acertification that the movant has in goodfaith conferred or attempted to conferwith the person or party failing to makedisclosure or discovery in an effort toobtain it without court action.

(2) Appropriate Court. [Not used.](3) Specific Motions.

(A) To Compel Disclosure. If a partyfails to make a disclosure required

63 RCFC 37 (cont.)

by RCFC 26(a), any other party maymove to compel disclosure and forappropriate sanctions.

(B) To Compel a Discovery Response.A party seeking discovery maymove for an order compelling ananswer, designation, production, orinspection. This motion may bemade if:(i) a deponent fails to answer a

question asked under RCFC 30or 31;

(ii) a corporation or other entityfails to make a designationunder RCFC 30(b)(6) or31(a)(4);

(iii) a party fails to answer aninterrogatory submitted underRCFC 33; or

(iv) a party fails to respond thati n s p e c t i o n w i l l b epermitted—or fails to permitinspection—as requested underRCFC 34.

(C) Related to a Deposition. Whentaking an oral deposition, the partyasking a question may complete oradjourn the examination beforemoving for an order.

(4) Evasive or Incomplete Disclosure,Answer, or Response. For purposes ofthis subdivision (a), an evasive orincomplete disclosure, answer, orresponse must be treated as a failure todisclose, answer, or respond.

(5) Payment of Expenses; ProtectiveOrders. (A) If the Motion Is Granted (or

Disclosure or Discovery IsProvided After Filing). If themotion is granted—or if thedisclosure or requested discovery isprovided after the motion wasfiled—the court must, after givingan opportunity to be heard, requirethe party or deponent whose

conduct necessitated the motion, theparty or attorney advising thatconduct, or both to pay themovant’s reasonable expensesincurred in making the motion,including attorney’s fees. But thecourt must not order this paymentif:(i) the movant filed the motion

before attempting in good faithto obtain the disclosure ordiscovery without court action;

(ii) t h e o p p o s i n g p a r t y ’ snondisclosure, response, orobjection was substantiallyjustified; or

(iii) other circumstances make anaward of expenses unjust.

(B) If the Motion Is Denied. If themotion is denied, the court mayissue any protective orderauthorized under RCFC 26(c) andmust, after giving an opportunity tobe heard, require the movant, theattorney filing the motion, or bothto pay the party or deponent whoopposed the motion its reasonableexpenses incurred in opposing themotion, including attorney’s fees.But the court must not order thispayment if the motion wassubstantially justified or othercircumstances make an award ofexpenses unjust.

(C) If the Motion Is Granted in Partand Denied in Part. If the motionis granted in part and denied in part,the court may issue any protectiveorder authorized under RCFC 26(c)and may, after giving an opportunityto be heard, apportion thereasonable expenses for the motion.

(b) Failure to Comply with a Court Order. (1) Sanctions Concerning Deponents. If the

court orders a deponent to be sworn or toanswer a question and the deponent fails

RCFC 37 (cont.) 64

to obey, the failure may be treated ascontempt of court.

(2) Sanctions Concerning Parties. (A) For Not Obeying a Discovery

Order. If a party or a party’s officer,director, or managing agent—or awitness designated under RCFC30(b)(6) or 31(a)(4)—fails to obeyan order to provide or permitdiscovery, including an order underRCFC 16(b), 35, or 37(a), the courtmay issue further just orders. Theymay include the following:(i) directing that the matters

embraced in the order or otherdesignated facts be taken asestablished for purposes of theaction, as the prevailing partyclaims;

(ii) prohibiting the disobedientparty from supporting oropposing designated claims ordefenses, or from introducingdesignated matters in evidence;

(iii) striking pleadings in whole orin part;

(iv) staying further proceedingsuntil the order is obeyed;

(v) dismissing the action orproceeding in whole or in part;

(vi) rendering a default judgmentagainst the disobedient party;or

(vii) treating as contempt of courtthe failure to obey any orderexcept an order to submit to ap h y s i c a l o r m e n t a lexamination.

(B) For Not Producing a Person forExamination. If a party fails tocomply with an order under RCFC35(a) requiring it to produce anotherperson for examination, the courtmay issue any of the orders listed inRCFC 37(b)(2)(A)(i)–(vi), unlessthe disobedient party shows that it

cannot produce the other person.(C) Payment of Expenses. Instead of

or in addition to the orders above,the court must order the disobedientparty, the attorney advising thatparty, or both to pay the reasonableexpenses, including attorney’s fees,caused by the failure, unless thefailure was substantially justified orother circumstances make an awardof expenses unjust.

(c) Failure to Disclose, to Supplement anEarlier Response, or to Admit.(1) Failure to Disclose or Supplement. If a

party fails to provide information oridentify a witness as required by RCFC26(a) or (e), the party is not allowed touse that information or witness to supplyevidence on a motion, at a hearing, or ata trial, unless the failure wassubstantially justified or is harmless. Inaddition to or instead of this sanction, thecourt, on motion and after giving anopportunity to be heard:(A) may order payment of the

reasonable expenses, includingattorney’s fees, caused by thefailure;

(B) [not used]; and(C) may impose other appropriate

sanctions, including any of theo r d e r s l i s t e d i n R C F C37(b)(2)(A)(i)–(vi).

(2) Failure to Admit. If a party fails toadmit what is requested under RCFC 36and if the requesting party later proves adocument to be genuine or the mattertrue, the requesting party may move thatthe party who failed to admit pay thereasonable expenses, includingattorney’s fees, incurred in making thatproof. The court must so order unless:(A) the request was held objectionable

under RCFC 36(a);(B) the admission sought was of no

substantial importance;

65 RCFC 37 (cont.)

(C) the party failing to admit had areasonable ground to believe that itmight prevail on the matter; or

(D) there was other good reason for thefailure to admit.

(d) Party’s Failure to Attend Its OwnDe po s i t i on , Se rv e Ans w e r s toInterrogatories, or Respond to a Requestfor Inspection.(1) In General.

(A) Motion; Grounds for Sanctions.The court may, on motion, ordersanctions if:(i) a party or a party’s officer,

d i rector , or managingagent—or a person designatedunder RCFC 30(b)(6) or31(a)(4)—fails, after beingserved with proper notice, toappear for that person’sdeposition; or

(ii) a party, after being properlyserved with interrogatoriesunder RCFC 33 or a requestfor inspection under RCFC 34,fails to serve its answers,objections, or written response.

(B) Certification. A motion forsanctions for failing to answer orrespond must include a certificationthat the movant has in good faithconferred or attempted to conferwith the party failing to act in aneffort to obtain the answer orresponse without court action.

(2) Unacceptable Excuse for Failing to Act.A failure described in RCFC 37(d)(1)(A)is not excused on the ground that thediscovery sought was objectionable,unless the party failing to act has apending motion for a protective orderunder RCFC 26(c).

(3) Types of Sanctions. Sanctions mayinclude any of the orders listed in RCFC37(b)(2)(A)(i)–(vi). Instead of or inaddition to these sanctions, the court

must require the party failing to act, theattorney advising that party, or both topay the reasonable expenses, includingattorney’s fees, caused by the failure,unless the failure was substantiallyjustified or other circumstances make anaward of expenses unjust.

(e) Failure to Provide Electronically StoredInformation. Absent exceptionalcircumstances, a court may not imposesanctions under these rules on a party forfailing to provide electronically storedinformation lost as a result of the routine,good-faith operation of an electronicinformation system.

(f) Failure to Participate in Framing aDiscovery Plan. If a party or its attorney failsto participate in good faith in developing andsubmitting a proposed discovery plan asrequired by Appendix A ¶ 3, the court may,after giving an opportunity to be heard,require that party or attorney to pay to anyother party the reasonable expenses, includingattorney’s fees, caused by the failure.



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.





RCFC 38, 39, 40, 40.1, and 40.2 66

TITLE VI. TRIALS

Rule 38. Right to a Jury Trial; Demand [Notused.]

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

Rule 40. Scheduling Cases for TrialThe judge to whom a case is assigned isresponsible for setting the case for trial by filing anorder with the clerk. The court must give priorityto actions entitled to priority by a federal statute.



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. Assigning and TransferringCases

(a) Random Assignment. After a complaint isserved on the United States, or after recusal ordisqualification of a judge to whom the case isassigned, the case will be assigned (orreassigned) to a judge at random.

(b) Transfer. To promote docket efficiency, toconform to the requirements of any casemanagement plan, or for the efficientadministration of justice, the assigned judge,either on a party’s motion or on the court’sown initiative, may order the transfer of a case

to another judge upon the agreement of bothjudges.

(c) Transfer by the Chief Judge. The chiefjudge may reassign any case upon a findingthat the transfer is necessary for the efficientadministration 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) In General. If a party is aware of theexistence of any directly related case(s),the party must file a Notice of DirectlyRelated Case(s).

(2) Definition. For the purpose of this rule,cases are directly related when:(A) they involve the same parties and

are based on the same or similarclaims; or

(B) they involve the same contract,property, or patent.

(3) Notice. (A) Contents. The Notice of Directly

Related Case(s):(i) must identify the title and

docket number of all directlyrelated cases;

67 RCFC 40.2 (cont.)

(ii) must explain why the casesqualify for treatment asdirectly related cases underRCFC 40.2(a)(2);

(iii) must state whether assigningthe cases to a single judge canbe expected to conservejudicial resources and promotethe efficient administration ofjustice; and

(iv) if filed after the case has beenassigned, may be accompaniedby a motion to transferpursuant to RCFC 40.1 or forconsolidation pursuant toRCFC 42.1.

(B) Filing. A party must file the Noticeof Directly Related Case(s):(i) along with the complaint in a

newly filed case; or(ii) in the earliest-filed related case

if the existence of directlyrelated cases becomes apparentonly after initial assignment.Counsel may appear in theearliest-filed case solely forpurposes of filing the notice.

The clerk must file copies of thenotice in all of the directly relatedcases.

(C) Service. A party must serve theNotice of Directly Related Case(s)on all parties in the related cases.

(4) Treatment of Directly Related Cases. (A) When a Notice of Directly Related

Case(s) is filed with a complaint,the clerk will assign the case to thejudge to whom the earliest-filedcase is assigned. If the judgedetermines that the case is not infact directly related to the earliest-filed case, the judge will return thecase to the clerk for randomreassignment.

(B) When a Notice of Directly RelatedCase(s) is filed after a case has been

assigned and is accompanied by amotion to transfer or forconsolidation, the judge in theearliest-filed case, after consultationwith the judge(s) in the later-filedcase(s), will grant or deny themotion to transfer or forconsolidation.

(b) Indirectly Related Cases. (1) In General. If a party is aware of the

existence of any indirectly relatedcase(s), the party may file a Notice ofIndirectly Related Case(s).

(2) Definition. For the purpose of this rule,cases are indirectly related when:(A) they present common issues of fact;

and(B) their consolidation for purposes of

coordinated discovery can beexpected significantly to promotethe efficient administration ofjustice.

(3) Notice. (A) Contents. The Notice of Indirectly

Related Case(s):(i) must identify the title and

docket number of all indirectlyrelated cases; and

(ii) must explain why the casesqualify for treatment asindirectly related cases underRCFC 40.2(b)(2).

(B) Filing. A party must file the Noticeof Indirectly Related Case(s) in theearliest-filed related case. Counselmay appear in the earliest-filed casesolely for purposes of filing thenotice or responding to the noticeunder RCFC 40.2 (b)(3)(C). Theclerk must file copies of the noticein all of the indirectly related casesand must provide a courtesy copy ofthe notice to the chief judge.

(C) Service. A party must serve theNotice of Indirectly Related Case(s)on all parties in the related cases.

RCFC 40.3 68

(D) Responding. Any response to thenotice must be filed in the earliest-filed case within 21 days afterservice of the notice and must beserved on all parties in the relatedcases. The clerk must file copies ofthe response in all of the relatedcases and must provide a courtesycopy of the response to the chiefjudge.

(4) Treatment of Indirectly Related Cases.When a Notice of Indirectly RelatedCase(s) is filed, the judge in the earliest-filed case will call a meeting of all of theassigned judges to determine whataction, if any, is appropriate. All partiesin the related cases will be notified of thedetermination reached.



RCFC 40.2 has no FRCP counterpart. Thesubject 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.



In addition, the text of subdivision (a) hasbeen modified to clarify that it is the clerk’sresponsibility to file a notice of directly relatedcases in all related cases. The change thus adoptsthe same notice procedure that is prescribed forindirectly related cases under subdivision (b) ofthis rule.

Rule 40.3. Complaints Against Judges(a) In General. A written complaint may be filed

with the clerk against any judge of the courtwho has:(1) engaged in conduct prejudicial to the

effective and expeditious administrationof the business of the court; or

(2) is unable to discharge all duties of theoffice by reason of mental or physicaldisability.

(b) Rules Governing Complaints. A copy of theapplicable rules, titled “Rules for Judicial-Conduct and Judicial-Disability Proceedings,”is available on the court’s website atwww.uscfc.uscourts.gov or may be obtainedby contacting the Office of the Clerk of theUnited States Court of Federal Claims, 717Madison Place, NW, Washington, DC 20005.

(As revised and reissued May 1, 2002; as amendedAug. 1, 2004, Apr. 10, 2008, Nov. 3, 2008.)


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, urging

http://www.uscfc.uscourts.gov.

69 RCFC 41

that 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 AmendmentsRCFC 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.

The language of RCFC 40.3 has beenamended to conform to the general restyling of theFRCP.

Rule 41. Dismissal of Actions(a) Voluntary Dismissal.

(1) By the Plaintiff.(A) Without a Court Order. Subject to

RCFC 23(e) and 23.1(c) and anyapplicable federal statute, theplaintiff may dismiss an actionwithout a court order by filing:

(i) a notice of dismissal before theopposing party serves either ananswer or a motion forsummary judgment; or

(ii) a stipulation of dismissalsigned by all parties who haveappeared.

(B) Effect. Unless the notice orstipulation states otherwise, thedismissal is without prejudice. Butif the plaintiff previously dismissedany federal- or state-court actionbased on or including the sameclaim, a notice of dismissal operatesas an adjudication on the merits.

(2) By Court Order; Effect. Except asprovided in RCFC 41(a)(1), an actionmay be dismissed at the plaintiff’srequest only by court order, on terms thatthe court considers proper. If thedefendant has pleaded a counterclaimbefore being served with the plaintiff’smotion to dismiss, the action may bedismissed over the defendant’s objectiononly if the counterclaim can remainpending for independent adjudication.Unless the order states otherwise, adismissal under this paragraph (2) iswithout prejudice.

(b) Involuntary Dismissal; Effect. If theplaintiff fails to prosecute or to comply withthese rules or a court order, the court maydismiss on its own motion or the defendantmay move to dismiss the action or any claimagainst it. Unless the dismissal order statesotherwise, a dismissal under this subdivision(b) and any dismissal not under thisrule—except one for lack of jurisdiction orfailure to join a party under RCFC19—operates as an adjudication on the merits.

(c) Dismissing a Counterclaim or Third-PartyClaim. This rule applies to a dismissal of anycounterclaim or third-party claim. Aclaimant’s voluntary dismissal under RCFC41(a)(1)(A)(i) must be made: (1) before a responsive pleading is served; or

RCFC 42 and 42.1 70

(2) if there is no responsive pleading, beforeevidence is introduced at a hearing ortrial.

(d) Costs of a Previously Dismissed Action. Ifa plaintiff who previously dismissed an actionin any court files an action based on orincluding the same claim against thedefendant, the court:(1) may order the plaintiff to pay all or part

of the costs of that previous action; and(2) may stay the proceedings until the

plaintiff has complied



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



Rule 42. Consolidation; Separate Trials(a) Consolidation. If actions before the court

involve a common question of law or fact, thecourt may:(1) join for hearing or trial any or all matters

at issue in the actions;(2) consolidate the actions; or(3) issue any other orders to avoid

unnecessary cost or delay. (b) Separate Trials. For convenience, to avoid

prejudice, or to expedite and economize, thecourt may order a separate trial of one or moreseparate issues, claims, counterclaims, orthird-party claims.

(c) Separate Determinations of Liability andDamages. (1) In General. On stipulation of the parties

or on its own, the court may at any timeorder that issues of liability and issues ofdamages be addressed in separate

proceedings. (2) Motion for Reconsideration. The

parties may file a motion forreconsideration within 14 days after aseparate 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.



2010 AmendmentThe time period of 10 days formerly set forth

in RCFC 42 has been changed to 14 days inaccordance with the FRCP’s general guidelines fortime computation that became effective December1, 2009.

Rule 42.1. Motion to Consolidate(a) Consolidating Cases Assigned to the Same

Judge. If a party seeks to consolidate casesassigned to the same judge, the party must filea motion to consolidate in each of the relevantcases.

(b) Consolidating Cases Assigned to DifferentJudges. If a party seeks to consolidate casesassigned to different judges, the party mustfile a motion to transfer pursuant to RCFC40.1, suggesting the appropriateness ofconsolidation.



71 RCFC 43 and 44

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



Rule 43. Taking Testimony(a) In Open Court. At trial, the witnesses’

testimony must be taken in open court unlessa federal statute, the Federal Rules ofEvidence, these rules, or other rules adoptedby the Supreme Court provide otherwise. Forgood cause in compelling circumstances andwith appropriate safeguards, the court maypermit testimony in open court bycontemporaneous transmission from adifferent location.

(b) Affirmation Instead of an Oath. Whenthese rules require an oath, a solemnaffirmation suffices.

(c) Evidence on a Motion. When a motion relieson facts outside the record, the court may hearthe matter on affidavits or may hear it whollyor partly on oral testimony or on depositions.

(d) Interpreter. The court may appoint aninterpreter of its choosing; fix reasonablecompensation to be paid from funds providedby law or by one or more parties; and tax thecompensation as costs.






Rule 44. Proving an Official Record(a) Means of Proving.

(1) Domestic Record. Each of the followingevidences an official record—or an entryin it—that is otherwise admissible and iskept within the United States, any state,district, or commonwealth, or anyterritory subject to the administrative orjudicial jurisdiction of the United States:(A) an official publication of the record;

or(B) a copy attested by the officer with

legal custody of the record—or bythe off icer’s deputy—andaccompanied by a certificate thatthe officer has custody. Thecertificate must be made under seal:(i) by a judge of a court of record

in the district or politicalsubdivision where the record iskept; or

(ii) by any public officer with aseal of office and with officialduties in the district or politicalsubdivision where the record iskept.

(2) Foreign Record.(A) In General. Each of the following

evidences a foreign officialrecord—or an entry in it—that isotherwise admissible:(i) an official publication of the

record; or(ii) the record—or a copy—that is

attested by an authorizedperson and is accompaniedeither by a final certification ofge nu ineness or by acertification under a treaty orconvention to which theUnited States and the countrywhere the record is located areparties.

(B) F i n a l C e r t i f i c a t i o n o fGenuineness. A final certificationmust certify the genuineness of thesignature and official position of theattester or of any foreign official

RCFC 44.1 and 45 72

whose certificate of genuinenessrelates to the attestation or is in achain of certificates of genuinenessrelating to the attestation. A finalcertification may be made by asecretary of a United Statesembassy or legation; by a consulgeneral, vice consul, or consularagent of the United States; or by adiplomatic or consular official ofthe foreign country assigned oraccredited to the United States.

(C) Other Means of Proof. If allparties have had a reasonableopportunity to investigate a foreignrecord’s authenticity and accuracy,the court may, for good cause,either:(i) admit an attested copy without

final certification; or(ii) permit the record to be

evidenced by an attestedsummary with or without afinal certification.

(b) Lack of a Record. A written statement thata diligent search of designated recordsrevealed no record or entry of a specifiedtenor is admissible as evidence that therecords contain no such record or entry. Fordomestic records, the statement must beauthenticated under RCFC 44(a)(1). Forforeign records, the statement must complywith (a)(2)(C)(ii).

(c) Other Proof. A party may prove an officialrecord—or an entry or lack of an entry init—by any other method authorized by law.






Rule 44.1. Determining Foreign LawA party who intends to raise an issue about aforeign country’s law must give notice by apleading or other writing. In determining foreignlaw, the court may consider any relevant materialor source, including testimony, whether or notsubmitted by a party or admissible under theFederal Rules of Evidence. The court’sdetermination must be treated as a ruling on aquestion of law.



RCFC 44.1 is identical to FRCP 44.1.



Rule 45. Subpoena(a) In General.

(1) Form (See Appendix of Forms, Forms6 and 7A) and Contents.(A) Requirements—In General. Every

subpoena must:(i) state the name of the court; (ii) state the title of the action and

its docket number;(iii) command each person to

whom it is directed to do thefollowing at a specified timeand place: attend and testify;produce designated documents,e l e c t r o n i c a l l y s t o r e dinformation, or tangible thingsin that person’s possession,custody, or control; or permitthe inspection of premises; and

(iv) set out the text of RCFC 45(c)and (d).

73 RCFC 45 (cont.)

(B) C o m m a n d t o A t t e n d aDeposition—Notice of theRecording Method. A subpoenacommanding attendance at adeposition must state the method forrecording the testimony.

(C) Combining or Separating aCommand to Produce or to PermitInspection; Specifying the Formfor Electronical ly StoredInformation. A command toproduce documents, electronicallystored information, or tangiblethings or to permit the inspection ofpremises may be included in asubpoena commanding attendanceat a deposition, hearing, or trial, ormay be set out in a separatesubpoena. A subpoena may specifythe form or forms in whichelectronically stored information isto be produced.

(D) Command to Produce; IncludedObligations. A command in asubpoena to produce documents,electronically stored information, ortangible things requires theresponding party to permitinspection, copying, testing, orsampling of the materials.

(2) Issued from Which Court. [Not used.](3) Issued by Whom. The clerk must issue

a subpoena, signed but otherwise inblank, to a party who requests it. Thatparty must complete it before service.An attorney authorized to sign filingsunder RCFC 83.1 also may issue andsign a subpoena as an officer of thecourt.

(b) Service. (1) By Whom; Tendering Fees; Serving a

Copy of Certain Subpoenas. Anyperson who is at least 18 years old andnot a party may serve a subpoena.Serving a subpoena requires delivering acopy to the named person and, if thesubpoena requires that person’s

attendance, tendering the fees for 1 day’sattendance and the mileage allowed bylaw. Fees and mileage need not betendered when the subpoena issues onbehalf of the United States or any of itsofficers or agencies. If the subpoenacommands the production of documents,electronically stored information, ortangible things or the inspection ofpremises before trial, then before it isserved, a notice must be served on eachparty.

(2) Service in the United States. Subject toRCFC 45(c)(3)(A)(ii), a subpoena maybe served at any place:(A) [not used];(B) within 100 miles of the place

specified for the deposition,hearing, trial, production, orinspection;

(C) [not used];(D) that the court authorizes on motion

and for good cause.(3) Service in a Foreign Country. 28

U.S.C. § 1783 governs issuing andserving a subpoena directed to a UnitedStates national or resident who is in aforeign country.

(4) Proof of Service. Proving service, whennecessary, requires filing with the courta statement showing the date and mannerof service and the names of the personsserved. The statement must be certifiedby the server.

(c) Protecting a Person Subject to a Subpoena.(1) Avoiding Undue Burden or Expense;

Sanctions. A party or attorneyresponsible for issuing and serving asubpoena must take reasonable steps toavoid imposing undue burden or expenseon a person subject to the subpoena. Thecourt must enforce this duty and imposean appropriate sanction—which mayinclude lost earnings and reasonableattorney’s fees—on a party or attorneywho fails to comply.

RCFC 45 (cont.) 74

(2) Command to Produce Materials orPermit Inspection.(A) Appearance Not Required. A

person commanded to producedocuments, electronically storedinformation, or tangible things, or topermit the inspection of premises,need not appear in person at theplace of production or inspectionunless also commanded to appearfor a deposition, hearing, or trial.

(B) Objections. A person commandedto produce documents or tangiblethings or to permit inspection mayserve on the party or attorneydesignated in the subpoena a writtenobjection to inspecting, copying,testing or sampling any or all of thematerials or to inspecting thepremises—or to producingelectronically stored information inthe form or forms requested. Theobjection must be served before theearlier of the time specified forcompliance or 14 days after thesubpoena is served. If an objectionis made, the following rules apply:(i) At any time, on notice to the

commanded person, theserving party may move thecourt for an order compellingproduction or inspection.

(ii) These acts may be requiredonly as directed in the order,and the order must protect aperson who is neither a partynor a party’s officer fromsignificant expense resultingfrom compliance.

(3) Quashing or Modifying a Subpoena.(A) When Required. On timely motion,

the court must quash or modify asubpoena that:(i) fails to allow a reasonable time

to comply;(ii) requires a person who is

neither a party nor a party’sofficer to travel more than 100miles from where that personresides, is employed, orregularly transacts business inperson—except that, subject toRCFC 45(c)(3)(B)(iii), theperson may be commanded toattend a trial by traveling fromany such place;

(iii) requires disclosure ofprivileged or other protectedmatter, if no exception ofwaiver applies; or

(iv) subjects a person to undueburden.

(B) When Permitted. To protect aperson subject to or affected by asubpoena, the court may, on motion,quash or modify the subpoena if itrequires:(i) disclosing a trade secret or

other confidential research,development, or commercialinformation;

(ii) disclosing an unretainedexpert’s opinion or informationthat does not describe specificoccurrences in dispute andresults from the expert’s studythat was not requested by aparty; or

(iii) a person who is neither a partynor a party’s officer to incursubstantial expense to travelmore than 100 miles to attendtrial.

(C) Specifying Conditions as anAlternative. In the circumstancesdescribed in RCFC 45(c)(3)(B), thecourt may, instead of quashing ormodifying a subpoena, orderappearance or production underspecified conditions if the servingparty:(i) shows a substantial need for

75 RCFC 45 (cont.)

the testimony or material thatcannot be otherwise metwithout undue hardship; and

(ii) ensures that the subpoenaedperson will be reasonablycompensated.

(d) Duties in Responding to a Subpoena.(1) Producing Documents or Electronically

Stored Information. These proceduresapply to producing documents orelectronically stored information:(A) Documents. A person responding

to a subpoena to produce documentsmust produce them as they are keptin the ordinary course of business ormust organize and label them tocorrespond to the categories in thedemand.

(B) Form for Producing ElectronicallyStored Information Not Specified.If a subpoena does not specify aform for producing electronicallystored information, the personresponding must produce it in aform or forms in which it isordinarily maintained or in areasonably usable form or forms.

(C) Electronically Stored InformationProduced in Only One Form. Theperson responding need not producethe same electronically storedinformation in more than one form.

(D) Inaccessible Electronically StoredInformation. The personresponding need not providediscovery of electronically storedinformation from sources that theperson identifies as not reasonablyaccessible because of undue burdenor cost. On motion to compeldiscovery or for a protective order,the person responding must showthat the information is notreasonably accessible because ofundue burden or cost. If thatshowing is made, the court may

nonetheless order discovery fromsuch sources if the requesting partyshows good cause, considering thelimitations of RCFC 26(b)(2)(C).The court may specify conditionsfor discovery.

(2) Claiming Privilege or Protection. (A) Information Withheld. A person

w i t h h o l d i n g s u b p o e n a e dinformation under a claim that it isprivileged or subject to protectionas trial-preparation material must:(i) expressly make the claim; and(ii) describe the nature of the

w i t h h e l d d o c u m e n t s ,communications, or tangiblethings in a manner that,without revealing informationitself privileged or protected,will enable the parties to assessthe claim.

(B) Information Produced. Ifinformation produced in response toa subpoena is subject to a claim ofprivilege or of protection as trial-preparation material, the personmaking the claim may notify anyparty that received the informationof the claim and the basis for it.After being notified, a party mustpromptly return, sequester, ordestroy the specified informationand any copies it has; must not useor disclose the information until theclaim is resolved; must takereasonable steps to retrieve theinformation if the party disclosed itbefore being notified; and maypromptly present the information tothe court under seal for adetermination of the claim. Theperson who produced theinformation must preserve theinformation until the claim isresolved.

(e) Contempt. The court may hold in contempt

RCFC 46, 47, 48, 49, 50, 51, and 52 76

a person who, having been served, failswithout adequate excuse to obey thesubpoena. A nonparty’s failure to obey mustbe excused if the subpoena purports to requirethe nonparty to attend or produce at a placeoutside the limits of RCFC 45(c)(3)(A)(ii).



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





Rule 46. Objecting to a Ruling or OrderA formal exception to a ruling or order isunnecessary. When the ruling or order is requestedor made, a party need only state the action that itwants the court to take or objects to, along with thegrounds for the request or objection. Failing toobject does not prejudice a party who had noopportunity to do so when the ruling or order wasmade.






Rule 47. Selecting Jurors [Not used.]

Rule 48. Number of Jurors; Verdict [Not used.]

Rule 49. Special Verdict; General Verdict andQuestions [Not used.]

Rule 50. Judgment as a Matter of Law in aJury Trial; Related Motion for a NewTrial; Conditional Ruling [Not used.]

Rule 51. Instructions to the Jury; Objections;Preserving a Claim of Error [Notused.]

Rule 52. Findings and Conclusions by theCourt; Judgment on Partial Findings

(a) Findings and Conclusions. (1) In General. In an action tried on the

facts, the court must find the factsspecially and state its conclusions of lawseparately. The findings and conclusionsmay be stated on the record after theclose of the evidence or may appear in anopinion or a memorandum of decisionfiled by the court. Judgment must beentered under RCFC 58.

(2) For an Interlocutory Injunction. Ingranting or refusing an interlocutoryinjunction, the court must similarly statethe findings and conclusions that supportits action.

(3) For a Motion. The court is not requiredto state findings or conclusions whenruling on a motion under RCFC 12 or 56or, unless these rules provide otherwise,on any other motion.

(4) Effect of a Master’s Findings. [Notused.]

(5) Questioning the Evidentiary Support. Aparty may later question the sufficiencyof the evidence supporting the findings,whether or not the party requestedfindings, objected to them, moved toamend them, or moved for partialfindings.

(6) Setting Aside the Findings. Findings offact, whether based on oral or other

77 RCFC 52.1

evidence, must not be set aside unlessclearly erroneous, and the reviewingcourt must give due regard to the trialcourt’s opportunity to judge thewitnesses’ credibility.

(b) Amended or Additional Findings. On aparty’s motion filed no later than 30 days afterthe entry of judgment, the court may amendits f indings—or make addit ionalfindings—and may amend the judgmentaccordingly. The motion may accompany amotion for a new trial under RCFC 59.

(c) Judgment on Partial Findings. If a partyhas been fully heard on an issue during trialand the court finds against the party on thatissue, the court may enter judgment againstthe party on a claim or defense that, under thecontrolling law, can be maintained or defeatedonly with a favorable finding on that issue.The court may, however, decline to render anyjudgment until the close of the evidence. Ajudgment on partial findings must besupported by findings of fact and conclusionsof law as required by RCFC 52(a).



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.



2010 AmendmentRCFC 52(b) has been amended to change the

period for filing a post-judgment motion from 10 to

30 days in accordance with the correspondingchange to FRCP 52(b) that became effectiveDecember 1, 2009. RCFC 6(b) continues toprohibit any extension of the time allowed underthis rule.

Rule 52.1. Administrative Record(a) In General. When proceedings before an

agency are relevant to a decision in a case, theadministrative record of those proceedingsmust be certified by the agency and filed withthe court.

(b) Time for Filing. The court may establish atime for filing the administrative record byorder.

(c) Motions for Judgment on theAdministrative Record. (1) Initial Motion. Absent an order by the

court establishing a different procedure,a party may move for partial or otherjudgment on the administrative recordand must include in its motion orsupporting memorandum a statement offacts that draws upon and cites to theportions of the administrative record thatbear on the issues presented to the court.

(2) Response. A party opposing a motionbased on the administrative record mustinclude in any response a counter-statement of facts that similarly drawsupon and cites to the administrativerecord.

(Added June 20, 2006; as amended Nov. 3, 2008.)


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 administrativerecord. That incorporation proved to be confusingin practice because only a portion of the summaryjudgment standards were borrowed. Summaryjudgment standards are not pertinent to judicial

RCFC 52.2 78

review 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.

2008AmendmentThe language of RCFC 52.1 has been


Rule 52.2. Remanding a Case(a) In General. In any case within its

jurisdiction, the court, on motion or on itsown, may order the remand of appropriatematters to an administrative or executive body

or official. (b) Remand Order.

(1) Contents. An order remanding a casemust:(A) include such direction as the court

deems proper and just; (B) establish the duration of the remand

period, not to exceed 6 months;(C) specify the extent to which court

proceedings will be stayed duringthe remand period; and

(D) designate a party to report to thecourt, every 90 days or less, on thestatus of the remand proceedings.

(2) Service. A certified copy of the remandorder must be served by the clerk inaccordance with RCFC 5 on:(A) each party; and(B) the administrative or executive body

or official to whom the order isdirected.

(c) Administrative Record. After serving theremand order, the clerk must transmit theadministrative record, if any, to theDepartment of Justice for return to theadministrative or executive body or official towhom the order is directed.

(d) Extending or Terminating the Stay ofProceedings. If the administrative orexecutive body or official to whom theremand order is directed does not act on theremand within the period of stay specified inthe remand order, a party may move for:(1) an extension of the stay under RCFC 6;

or(2) termination of the stay and the initiation

of other proceedings under RCFC 7 todispose of the case.

(e) Completing Administrative Proceedings.When the action directed under a remandorder is completed, the administrative orexecutive body or official to whom the orderwas directed must forward to the clerk forfiling 4 copies of the final decision or otheraction taken. The clerk must serve each partywith a copy of the final decision or other

79 RCFC 53

action. If the case is resolved at theadministrative level, the plaintiff must file amotion to dismiss the case with prejudice.

(f) Post-Remand Proceedings. (1) Notice. Within 30 days after the filing of

the final decision or other action onremand, each party must file with theclerk and serve on each adverse party anotice stating:(A) whether the final decision or other

action on remand affords asatisfactory basis for disposition ofthe case; or

(B) whether further proceedings beforethe court are required and, if so, thenature of such proceedings.

(2) Issuing an Order. After service of thenotice, the court will enter an orderprescribing the procedure to be followedor directing any other action deemedappropriate.

(As revised and reissued May 1, 2002; asrenumbered June 20, 2006; as amended Nov. 3,2008.)

Rules Committee Notes2002 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) Scope. Unless a statute providesotherwise, the chief judge, at the requestof the assigned judge, may appoint amaster only to:(A) perform duties consented to by the

parties;(B) hold trial proceedings and make or

recommend findings of fact ifappointment is warranted by:(i) some exceptional condition; or(ii) the need to perform an

accounting or resolve adifficult computation ofdamages; or

(C) address pretrial and posttrial mattersthat cannot be effectively and timelyaddressed by the assigned judge.

(2) Disqualification. A master must nothave a relationship to the parties,attorneys, action, or assigned judge thatwould require disqualification of a judgeunder 28 U.S.C. § 455, unless the parties,with the assigned judge’s approval,consent to the appointment after themaster discloses any potential groundsfor disqualification.

(3) Possible Expense or Delay. Inrequesting the appointment of a master,the assigned judge must consider thefairness of imposing the likely expenseson the parties and must protect againstunreasonable expense or delay.

(b) Order Appointing a Master.(1) Notice. Before requesting the

appointment of a master, the assignedjudge must give the parties notice and anopportunity to be heard. Any party maysuggest to the assigned judge candidatesfor appointment.

(2) Contents. The appointing order mustdirect the master to proceed with allreasonable diligence and must state:(A) the master’s duties, including any

investigation or enforcement duties,

RCFC 53 (cont.) 80

and any limits on the master’sauthority under RCFC 53(c);

(B) the circumstances, if any, in whichthe master may communicate exparte with the assigned judge or aparty;

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

(D) the time limits, method of filing therecord, other procedures, andstandards for reviewing the master’so r d e r s , f i n d i n g s , a n drecommendations; and

(E) the basis, terms, and procedure forfixing the master’s compensationunder RCFC 53(g).

(3) Issuing. The assigned judge may requestan order appointing a master only after: (A) the master files an affidavit

disclosing whether there is anyground for disqualification under 28U.S.C. § 455; and

(B) if a ground is disclosed, the parties,with the assigned judge’s approval,waive the disqualification.

(4) Amending. The order appointing amaster may be amended by the chiefjudge at any time upon recommendationof the assigned judge after the assignedjudge has given the parties notice and anopportunity to be heard.

(c) Master’s Authority.(1) In General. Unless the appointing order

directs otherwise, a master may:(A) regulate all proceedings;(B) take all appropriate measures to

perform the assigned duties fairlyand efficiently; and

(C) if conducting an evidentiaryhearing, exercise the assignedjudge’s power to compel, take, andrecord evidence.

(2) Sanctions. The master may by orderimpose on a party any noncontemptsanction provided by RCFC 37 or 45,

and may recommend a contempt sanctionagainst a party and sanctions against anonparty.

(d) Master’s Orders. A master who issues anorder must file it and promptly serve a copyon each party. The clerk must enter the orderon the docket.

(e) Master’s Reports. A master must report tothe assigned judge as required by theappointing order. The master must file thereport and promptly serve a copy on eachparty, unless the assigned judge ordersotherwise.

(f) Action on the Master’s Order, Report, orRecommendations.(1) Opportunity for a Hearing; Action in

General. In acting on a master’s order,report, or recommendations, the assignedjudge must give the parties notice and anopportunity to be heard; may receiveevidence; and may adopt or affirm,modify, wholly or partly reject orreverse, or resubmit to the master withinstructions.

(2) Time to Object or Move to Adopt orModify. A party may file objectionsto—or a motion to adopt or modify—them a s t e r ’ s o r d e r , r e p o r t , o rrecommendations no later than 21 daysafter a copy is served, unless theassigned judge sets a different time.

(3) Reviewing Factual Findings. Theassigned judge must decide de novo allobjections to findings of fact made orrecommended by a master, unless theparties, with the assigned judge’sapproval, stipulate that:(A) the findings will be reviewed for

clear error; or(B) the findings of a master appointed

under RCFC 53(a)(1)(A) or (C) willbe final.

(4) Reviewing Legal Conclusions. Theassigned judge must decide de novo allobjections to conclusions of law made orrecommended by a master.

81 RCFC 53 (cont.)

(5) Reviewing Procedural Matters. Unlessthe appointing order establishes adifferent standard of review, the assignedjudge may set aside a master’s ruling ona procedural matter only for an abuse ofdiscretion.

(g) Compensation.(1) Fixing Compensation. Before or after

judgment, the assigned judge must fixthe master’s compensation on the basisand terms stated in the appointing order,but a new basis and terms may be set bythe chief judge upon recommendation ofthe assigned judge after the assignedjudge has given the parties notice and anopportunity to be heard.

(2) Payment. The compensation must bepaid either:(A) by a party or parties; or(B) from a fund or subject matter of the

action within the assigned judge’scontrol.

(3) Allocating Payment. The assigned judgemust allocate payment among the partiesafter considering the nature and amountof the controversy, the parties’ means,and the extent to which any party is moreresponsible than other parties for thereference to a master. An interimallocation may be amended to reflect adecision on the merits.

(h) Appointing a 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.


to conform to the general restyling of the FRCP. This rule does not apply to special masters

appointed by the court to resolve Vaccine Actcases covered in Appendix B to these rules.


in RCFC 53(f)(2) has been changed to 21 days inaccordance with the corresponding change toFRCP 53(f)(2) that became effective December 1,2009.

RCFC 54 82

TITLE VII. JUDGMENT

Rule 54. Judgment; Costs(a) Definition; Form. “Judgment” as used in

these rules includes a decree and any orderfrom which an appeal lies. A judgmentshould not include recitals of pleadings, amaster’s report, or a record of priorproceedings.

(b) Judgment on Multiple Claims or InvolvingMultiple Parties. When an action presentsmore than one claim for relief—whether as aclaim, counterclaim, or third-party claim—orwhen multiple parties are involved, the courtmay direct entry of a final judgment as to oneor more, but fewer than all, claims or partiesonly if the court expressly determines thatthere is no just reason for delay. Otherwise,any order or other decision, howeverdesignated, that adjudicates fewer than all theclaims or the rights and liabilities of fewerthan all the parties does not end the action asto any of the claims or parties and may berevised at any time before the entry of ajudgment adjudicating all the claims and allthe parties’ rights and liabilities.

(c) Demand for Judgment; Relief to BeGranted. A default judgment must not differin kind from, or exceed in amount, what isdemanded in the pleadings. Every other finaljudgment should grant the relief to which eachparty is entitled, even if the party has notdemanded that relief in its pleadings.

(d) Costs; Attorney’s Fees.(1) Costs Other Than Attorney’s Fees.

Costs—other than attorney’s fees—should be allowed to the prevailing partyto the extent permitted by law. See 28U.S.C. § 2412(a). (A) Filing a Bill of Costs. A claim for

allowable costs must be made byfiling a Bill of Costs with the clerk.See Appendix of Forms, Form 4.

(B) Timing and Contents of a Bill ofCosts. A Bill of Costs must:(i) be filed within 30 days after

the date of final judgment, asdef ined in 28 U.S.C.§ 2412(d)(2)(G);

(ii) be accompanied by an affidavitand a memorandum settingforth the grounds andauthorities supporting all costsother than the filing fee; and

(iii) include as exhibits anyvouchers, receipts, or invoicessupporting the requested costs.

(C) Procedures Applicable to a Bill ofCosts. (i) Objection. An objection to

some or all of the requestedcosts may be filed within 28days after service of the Bill ofCosts.

(ii) Reply. A reply to an objectionmay be filed within 7 daysafter service of the objection.

(iii) Action by the Clerk. Unless aconference is scheduled by theclerk, the taxation ordisallowance of costs will bemade by the clerk on theexisting record.

(iv) Court Review. A motion forreview of the clerk’s actionmay be filed with the courtwithin 14 days after action bythe clerk. Unless the courtorders otherwise, the reviewwill be made on the existingrecord.

(D) Settlement Agreement. Asettlement agreement should, by itsown terms, resolve any issuerelating to costs and in the absenceof special agreement, each partymust bear its own costs. The clerkmay not tax costs on any actionterminated by settlement.

(2) Attorney’s Fees.(A) Claim to Be by Motion. A claim

for attorney’s fees and related

83 RCFC 54 (cont.)

nontaxable expenses must be madeby motion unless the substantivelaw requires those fees to be provedat trial as an element of damages.See Appendix of Forms, Form 5.

(B) Timing and Contents of theMotion. Unless a statute or a courtorder provides otherwise, themotion must: (i) be filed within 30 days after

the date of final judgment, asdef ined in 28 U.S.C.§ 2412(d)(2)(G);

(ii) specify the judgment and thestatute, rule, or other groundsentitling the movant to theaward;

(iii) state the amount sought; and (iv) disclose, if the court so orders,

the terms of any agreementabout fees for the services forwhich the claim is made.

(C) Proceedings. The court may decideissues of liability for fees beforereceiving submissions on the valueof services. The court must find thefacts and state its conclusions oflaw as provided in RCFC 52(a).

(D) Procedures Applicable to a Motionfor Attorney’s Fees. (i) Response. A response to a

motion for attorney’s fees maybe filed within 28 days afterservice of the motion.

(ii) Reply. A reply to a responsemay be filed within 14 daysafter service of the response.

(iii) Subsequent Procedures. Afterthe filing of a response and areply to a motion for attorney’sfees, the court will enter anorder p r e sc r i b i ng theprocedures to be followed.

(E) Exceptions. Subparagraphs (A)–(D) do not apply to claims for feesand expenses as sanctions for

violating these rules or as sanctionsunder 28 U.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 determinedunder 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).



2010 AmendmentRCFC 54(d) has been amended by deleting

item (1)(C)(v) (“Time Extensions”) in its entirety.In addition, the 14-day time period formerly setforth in item (2)(D)(i) for filing a response to amotion for attorney’s fees has been restored to 28

RCFC 55 and 56 84

days.

Rule 55. Default; Default Judgment(a) Entering a Default. When a party against

whom a judgment for affirmative relief issought has failed to plead or otherwise defend,and that failure is shown by affidavit orotherwise, the clerk must enter the party’sdefault.

(b) Entering a Default Judgment. (1) By the Clerk. [Not used.](2) By the Court. The party must apply to

the court for a default judgment. Adefault judgment may be entered only ifthe claimant establishes a claim or rightto relief by evidence that satisfies thecourt. A default judgment may beentered against a minor or incompetentperson only if represented by a generalguardian, conservator, or other likefiduciary who has appeared. If the partyagainst whom a default judgment issought has appeared personally or by arepresentative, that party or itsrepresentative must be served withwritten notice of the application at least7 days before the hearing. The courtmay conduct hearings or make referralswhen, to enter or effectuate judgment, itneeds to:(A) conduct an accounting;(B) determine the amount of damages;(C) establish the truth of any allegation

by evidence; or(D) investigate any other matter.

(c) Setting Aside a Default or a DefaultJudgment. The court may set aside an entryof default for good cause, and it may set asidea default judgment under RCFC 60(b).

(d) Judgment Against the United States. [Notused.]


Rules Committee Notes

2002 RevisionRCFC 55 recognizes the distinction between

entry 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.


to conform to the general restyling of the FRCP.In addition, in further conformance with

FRCP 55, former subdivision (d) (“Plaintiffs;Counterclaimants”) has been omitted as incompleteand unnecessary.

2010 AmendmentThe time period of 3 days formerly set forth in

RCFC 55(b)(2) has been changed to 7 days inaccordance with the corresponding change toFRCP 55(b)(2) that became effective December 1,2009.

Rule 56. Summary Judgment(a) Motion for Summary Judgment or Partial

Summary Judgment. A party may move forsummary judgment, identifying each claim ordefense—or the part of each claim ordefense—on which summary judgment issought. The court shall grant summaryjudgment if the movant shows that there is nogenuine dispute as to any material fact and themovant is entitled to judgment as a matter oflaw. The court should state on the record thereasons for granting or denying the motion.

(b) Time to File a Motion. Unless the courtorders otherwise, a party may file a motion forsummary judgment at any time until 30 daysafter the close of all discovery.

(c) Procedures.(1) Supporting Factual Positions. A party

85 RCFC 56 (cont.)

asserting that a fact cannot be or isgenuinely disputed must support theassertion by:(A) citing to particular parts of materials

in the record, including depositions,documents, electronically storedinformat ion, af f idavi ts ordeclarations, stipulations (includingthose made for purposes of themot ion only), admissions,interrogatory answers, or othermaterials; or

(B) showing that the materials cited donot establish the absence orpresence of a genuine dispute, orthat an adverse party cannotproduce admissible evidence tosupport the fact.

(2) Objection That a Fact Is Not Supportedby Admissible Evidence. A party mayobject that the material cited to supportor dispute a fact cannot be presented in aform that would be admissible inevidence.

(3) Materials Not Cited. The court needconsider only the cited materials, but itmay consider other materials in therecord.

(4) Affidavits or Declarations. An affidavitor declaration used to support or opposea motion must be made on personalknowledge, set out facts that would beadmissible in evidence, and show that theaffiant or declarant is competent totestify on the matters stated.

(d) When Facts Are Unavailable to theNonmovant. If a nonmovant shows byaffidavit or declaration that, for specifiedreasons, it cannot present facts essential tojustify its opposition, the court may:(1) defer considering the motion or deny it;(2) allow time to obtain affidavits or

declarations or to take discovery; or(3) issue any other appropriate order.

(e) Failing to Properly Support or Address aFact. If a party fails to properly support an

assertion of fact or fails to properly addressanother party’s assertion of fact as required byRCFC 56(c), the court may: (1) give an opportunity to properly support

or address the fact;(2) consider the fact undisputed for purposes

of the motion;(3) grant summary judgment if the motion

and supporting materials—including thefacts considered undisputed—show thatthe movant is entitled to it; or

(4) issue any other appropriate order.(f) Judgment Independent of the Motion.

After giving notice and a reasonable time torespond, the court may:(1) grant summary judgment for a

nonmovant;(2) grant the motion on grounds not raised

by a party; or(3) consider summary judgment on its own

after identifying for the parties materialfacts that may not be genuinely indispute.

(g) Failing to Grant All the Requested Relief.If the court does not grant all the reliefrequested by the motion, it may enter an orderstating any material fact—including an itemof damages or other relief—that is notgenuinely in dispute and treating the fact asestablished in the case.

(h) Affidavit or Declaration Submitted in BadFaith. If satisfied that an affidavit ordeclaration under this rule is submitted in badfaith or solely for delay, the court—afternotice and a reasonable time to respond—mayorder the submitting party to pay the otherparty the reasonable expenses, includingattorney’s fees, it incurred as a result. Anoffending party or attorney may also be heldin contempt or subjected to other appropriatesanctions.

(As revised and reissued May 1, 2002; as amendedJune 20, 2006, Nov. 3, 2008, July 15, 2011.)

Rules Committee Notes

RCFC 56.1, 56.2, 57, and 58 86

2002 RevisionThe 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.



2011 AmendmentRCFC 56 has been rewritten in its entirety to

reflect the corresponding revision of FRCP 56 thatbecame effective December 1, 2010.

Rule 56.1 Review of a Decision on the Basisof the Administrative Record[Abrogated (eff. June 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 theadministrative 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 to

RCFC 52.1.

Rule 56.2 Remanding a Case [Renumberedas RCFC 52.2 (eff. June 20, 2006).]

Rule 57. Declaratory JudgmentThese rules govern the procedure for obtaining adeclaratory judgment under 28 U.S.C. §§1491(b)(2) and 1507. The existence of anotheradequate remedy does not preclude a declaratoryjudgment that is otherwise appropriate. The courtmay order a speedy hearing of a declaratory-judgment action.



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. Entering Judgment(a) Separate Document. Every judgment and

amended judgment must be set out in aseparate document, but a separate document isnot required for an order disposing of amotion:(1) [not used];(2) to amend or make additional findings

under RCFC 52(b);(3) for attorney’s fees under RCFC 54;(4) for a new trial, or to alter or amend the

judgment, under RCFC 59; or(5) for relief under RCFC 60.

(b) Entering Judgment. (1) Without the Court’s Direction. Subject

to RCFC 54(b) and unless the courtorders otherwise, the clerk must, without

87 RCFC 58.1 and 59

awaiting the court’s direction, promptlyprepare, sign, and enter the judgmentwhen:(A) [not used];(B) the court awards only costs or a sum

certain; or(C) the court denies all relief.

(2) Court’s Approval Required. Subject toRCFC 54(b), the court must promptlyapprove the form of the judgment, whichthe clerk must promptly enter, when:(A) [not used]; or(B) the court grants other relief not

described in this subdivision (b).(c) Time of Entry. For purposes of these rules,

judgement is entered at the following times: (1) if a separate document is not required,

when the judgment is entered in the civildocket under RCFC 79(a); or

(2) if a separate document is required, whenthe judgment is entered in the civildocket under RCFC 79(a) and the earlierof these events occurs:(A) it is set out in a separate document;

or(B) 150 days have run from the entry in

the civil docket.(d) Request for Entry. A party may request that

judgment be set out in a separate document asrequired by RCFC 58(a).

(e) Cost or Fee Awards. Ordinarily, the entry ofjudgment may not be delayed, nor the time forappeal extended, in order to tax costs or awardfees. But if a timely motion for attorney’sfees is made under RCFC 54(d)(2), the courtmay act before a notice of appeal has beenfiled and become effective to order that themotion have the same effect under FederalRule of Appellate Procedure 4(a)(4) as atimely motion under RCFC 59.

(As revised and reissued May 1, 2002; as amendedSept. 15, 2003, Nov. 15, 2007, Nov. 3, 2008.)


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 AppealTo appeal a decision of this court, a party must:(a) file an original and no fewer than four copies

of the notice of appeal with the clerk withinthe time and in the manner prescribed forappeals in Rule 3 of the Federal Rules ofAppellate Procedure; and

(b) pay the fee in accordance with RCFC 77.1(c).



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.

2008AmendmentThe language of RCFC 58.1 has been


Rule 59. New Trial; Reconsideration; Alteringor Amending a Judgment

RCFC 59 (cont.) 88

(a) In General.(1) Grounds for New Trial or

Reconsideration. The court may, onmotion, grant a new trial or a motion forreconsideration on all or some of theissues—and to any party—as follows:(A) for any reason for which a new trial

has heretofore been granted in anaction at law in federal court;

(B) for any reason for which a rehearinghas heretofore been granted in a suitin equity in federal court; or

(C) upon the showing of satisfactoryevidence, cumulative or otherwise,that any fraud, wrong, or injusticehas been done to the United States.

(2) Further Action After a Trial. The courtmay, on motion under this rule, open thejudgment if one has been entered, takeadditional testimony, amend findings offact and conclusions of law or make newones, and direct the entry of a newjudgment.

(b) Time to File a Motion for a New Trial orfor Reconsideration. (1) A motion for a new trial or for

reconsideration under RCFC 59(a)(1)(A)or (B) must be filed no later than 28 daysafter the entry of judgment.

(2) A motion for a new trial or forreconsideration under RCFC 59(a)(1)(C)may be filed—and the payment ofjudgment stayed—at any time while thesuit is pending, after review proceedingshave been initiated, or within 2 yearsafter the final disposition of the suit.

(c) Relying on Affidavits. When a motion for anew trial or for reconsideration is based onaffidavits, they must be filed with the motion.

(d) New Trial on the Court’s Initiative or forReasons Not in the Motion. No later than 28days after the entry of judgment, the court, onits own, may order a new trial for any reasonthat would justify granting one on a party’smotion. After giving the parties notice and anopportunity to be heard, the court may grant a

timely motion for a new trial for a reason notstated in the motion. In either event, the courtmust specify the reasons in its order.

(e) Motion to Alter or Amend a Judgment. Amotion to alter or amend a judgment must befiled no later than 28 days after the entry ofthe judgment.

(f) Response. A response to any motion underthis rule may be filed only at the court’srequest and within the time specified by thecourt. The court may not rule in favor of amotion under this rule without first requestinga response to the motion.

(As revised and reissued May 1, 2002; as amendedNov. 3, 2008, Jan. 11, 2010, July 15, 2011.)


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.



2010 AmendmentRCFC 59 has been amended to change the

period for filing post-judgment motions from 10 to30 days in accordance with the correspondingchanges to FRCP 59 that became effectiveDecember 1, 2009. RCFC 6(b) continues toprohibit extension of the time allowed under thisrule.

2011 AmendmentRCFC 59(f) has been added to clarify that the

restriction included in former paragraph (b)(3)

89 RCFC 60 and 61

permitting the filing of a “response to any motionunder this rule . . . only at the court’s request”extends to all motions under the rule, thus applyingnot only to a motion for a new trial or forreconsideration (the subject of subdivision (b)) butalso to a motion to alter or amend a judgment (thesubject of subdivision (e)).

In addition, subdivision (b) has been amendedto include reference to a motion for reconsiderationin clarification of the intended scope of thesubdivision.

Finally, the period for filing post-judgmentmotions has been corrected to read 28 days inaccordance with the final version of FRCP 59 thatwas adopted on December 1, 2009.

Rule 60. Relief From a Judgment or Order(a) Corrections Based on Clerical Mistakes;

Oversights and Omissions. The court maycorrect a clerical mistake or a mistake arisingfrom oversight or omission whenever one isfound in a judgment, order, or other part ofthe record. The court may do so on motion oron its own, with or without notice. But afteran appeal has been docketed in the appellatecourt and while it is pending, such a mistakemay be corrected only with the appellatecourt’s leave.

(b) Grounds for Relief from a Final Judgment,Order, or Proceeding. On motion and justterms, the court may relieve a party or its legalrepresentative from a final judgment, order, orproceeding for the following reasons:(1) mistake, inadvertence, surprise, or

excusable neglect;(2) newly discovered evidence that, with

reasonable diligence, could not havebeen discovered in time to move for anew trial under RCFC 59(b);

(3) fraud (whether previously called intrinsicor extrinsic), misrepresentation, ormisconduct by an opposing party;

(4) the judgment is void;(5) the judgment has been satisfied, released,

or discharged; it is based on an earlierjudgment that has been reversed or

vacated; or applying it prospectively isno longer equitable; or

(6) any other reason that justifies relief. (c) Timing and Effect of the Motion.

(1) Timing. A motion under RCFC 60(b)must be made within a reasonabletime—and for reasons (1), (2), and (3) nomore than a year after the entry of thejudgment or order or the date of theproceeding.

(2) Effect on Finality. The motion does notaffect the judgment’s finality or suspendits operation.

(d) Other Powers to Grant Relief. This ruledoes not limit a court’s power to:(1) entertain an independent action to relieve

a party from a judgment, order, orproceeding;

(2) [not used]; or(3) set aside a judgment for fraud on the

court. (e) Bills and Writs Abolished. The following

are abolished: bills of review, bills in thenature of bills of review, and writs of coramnobis, coram vobis, and audita querela.



Minor changes in wording have been made tomore closely conform to FRCP 60. Necessarydifferences were retained.



Rule 61. Harmless ErrorUnless justice requires otherwise, no error inadmitting or excluding evidence—or any othererror by the court or a party—is ground forgranting a new trial, for setting aside a verdict, orfor vacating, modifying, or otherwise disturbing ajudgment or order. At every stage of the

RCFC 62 90

proceeding, the court must disregard all errors anddefects that do not affect any party’s substantialrights.






Rule 62. Stay of Proceedings to Enforce aJudgment

(a) Automatic Stay; Exceptions for Injunctionsand Patent Accountings. Except as stated inthis rule, no execution may issue on ajudgment, nor may proceedings be taken toenforce it, until 14 days have passed after itsentry. But unless the court orders otherwise,the following are not stayed after beingentered, even if an appeal is taken:(1) an interlocutory or final judgment in an

action for an injunction; or(2) a judgment or order that directs an

accounting in an action for patentinfringement.

(b) Stay Pending the Disposition of a Motion.On appropriate terms for the opposing party’ssecurity, the court may stay the execution of ajudgment—or any proceedings to enforceit—pending disposition of any of thefollowing motions:(1) [not used];(2) under RCFC 52(b), to amend the

findings or for additional findings;(3) under RCFC 59, for a new trial or to alter

or amend a judgment; or(4) under RCFC 60, for relief from a

judgment or order.(c) Injunction Pending an Appeal. While an

appeal is pending from an interlocutory orderor final judgment that grants, dissolves, or

denies an injunction, the court may suspend,modify, restore, or grant an injunction onterms for bond or other terms that secure theopposing party’s rights.

(d) Stay with Bond on Appeal. If an appeal istaken, the appellant may obtain a stay bysupersedeas bond, except in an actiondescribed in RCFC 62(a)(1) or (2). The bondmay be given upon or after filing the notice ofappeal or after obtaining the order allowingthe appeal. The stay takes effect when thecourt approves the bond.

(e) Stay Without Bond on an Appeal by theUnited States, Its Officers, or Its Agencies.The court must not require a bond, obligation,or other security from the appellant whengranting a stay on an appeal by the UnitedStates, its officers, or its agencies or on anappeal directed by a department of the federalgovernment.

(f) Stay in Favor of a Judgment Debtor UnderState Law. [Not used.]

(g) Appellate Court’s Power Not Limited. Thisrule does not limit the power of the appellatecourt or one of its judges or justices: (1) to stay proceedings—or suspend, modify,

restore, or grant an injunction—while anappeal is pending; or

(2) to issue an order to preserve the statusquo or the effectiveness of the judgmentto be entered.

(h) Stay with Multiple Claims or Parties. Acourt may stay the enforcement of a finaljudgment entered under RCFC 54(b) until itenters a later judgment or judgments, and mayprescribe terms necessary to secure the benefitof the stayed judgment for the party in whosefavor it was entered.



Minor changes have been made to subdivision(a) to more closely conform to FRCP 62.

91 RCFC 62.1 and 63

Necessary differences were retained.




in RCFC 62(a) has been changed to 14 days inaccordance with the corresponding change toFRCP 62(a) that became effective December 1,2009.

Rule 62.1 Indicative Ruling on Motion forRelief That is Barred by aPending Appeal

(a) Relief Pending Appeal. If a timely motion ismade for relief that the court lacks authority togrant because of an appeal that has beendocketed and is pending, the court may:(1) defer considering the motion;(2) deny the motion; or(3) state either that it would grant the motion

if the court of appeals remands for thatpurpose or that the motion raises asubstantial issue.

(b) Notice to the Court of Appeals. The movantmust promptly notify the circuit clerk underFederal Circuit Rule 12.1 if the court statesthat it would grant the motion or that themotion raises a substantial issue.

(c) Proceedings on Remand. The court maydecide the motion if the court of appealsremands for further proceedings.

(Added Jan. 11, 2010.)


RCFC 62.1 has been added to correspond tothe adoption of the same rule in the FRCP thatbecame effective December 1, 2009.

Rule 63. Judge’s Inability to ProceedIf a judge conducting a hearing or trial is unable toproceed, any other judge may proceed upon

certifying familiarity with the record anddetermining that the case may be completedwithout prejudice to the parties. In a hearing or atrial, the successor judge must, at a party’s request,recall any witness whose testimony is material anddisputed and who is available to testify againwithout undue burden. The successor judge mayalso 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.



RCFC 64 and 65 92

TITLE VIII. PROVISIONAL AND FINALREMEDIES

Rule 64. Seizing a Person or Property [Notused.]

Rule 65. Injunctions and Restraining Orders(a) Preliminary Injunction.

(1) Notice. The court may issue apreliminary injunction only on notice tothe adverse party.

(2) Consolidating the Hearing with theTrial on the Merits. Before or afterbeginning the hearing on a motion for apreliminary injunction, the court mayadvance the trial on the merits andconsolidate it with the hearing. Evenwhen consolidation is not ordered,evidence that is received on the motionand that would be admissible at trialbecomes part of the trial record and neednot be repeated at trial.

(b) Temporary Restraining Order. (1) Issuing Without Notice. The court may

issue a temporary restraining orderwithout written or oral notice to theadverse party or its attorney only if:(A) specific facts in an affidavit or a

verified complaint clearly show thatimmediate and irreparable injury,loss, or damage will result to themovant before the adverse party canbe heard in opposition; and

(B) the movant’s attorney certifies inwriting any efforts made to givenotice and the reasons why it shouldnot be required.

(2) Contents; Expiration. Every temporaryrestraining order issued without noticemust state the date and hour it wasissued; describe the injury and state whyit is irreparable; state why the order wasissued without notice; and be promptlyfiled in the clerk’s office and entered inthe record. The order expires at the timeafter entry—not to exceed 14 days—that

the court sets, unless before that time thecourt, for good cause, extends it for alike period or the adverse party consentsto a longer extension. The reasons for anextension must be entered in the record.

(3) Expediting the Preliminary-InjunctionHearing. If the order is issued withoutnotice, the motion for a preliminaryinjunction must be set for hearing at theearliest possible time, taking precedenceover all other matters except hearings onolder matters of the same character. Atthe hearing, the party who obtained theorder must proceed with the motion; ifthe party does not, the court mustdissolve the order.

(4) Motion to Dissolve. On 2 days’ notice tothe party who obtained the order withoutnotice—or on shorter notice set by thecourt—the adverse party may appear andmove to dissolve or modify the order.The court must then hear and decide themotion as promptly as justice requires.

(c) Security. The court may issue a preliminaryinjunction or a temporary restraining orderonly if the movant gives security in an amountthat the court considers proper to pay the costsand damages sustained by any party found tohave been wrongfully enjoined or restrained.The United States, its officers, and itsagencies are not required to give security.

(d) Contents and Scope of Every Injunctionand Restraining Order.(1) Contents. Every order granting an

injunction and every restraining ordermust:(A) state the reasons why it issued;(B) state its terms specifically; and(C) describe in reasonable detail—and

not by referring to the complaint orother document—the act or actsrestrained or required.

(2) Persons Bound. The order binds onlythe following who receive actual noticeof it by personal service or otherwise:(A) the parties;

93 RCFC 65.1, 66, 67, and 68

(B) the parties’ officers, agents,servants, employees, and attorneys;and

(C) other persons who are in activeconcert or participation with anyonedescribed in RCFC 65(d)(2)(A) or(B).

(e) Other Laws Not Modified. These rules donot modify the following:(1) any federal statute relating to temporary

restraining orders or preliminaryinjunctions in actions affecting employerand employee;

(2) [not used]; or(3) [not used].

(f) Copyright Impoundment. [Not used.]



Minor 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).)




in RCFC 65(b)(2) has been changed to 14 days inaccordance with the corresponding change toFRCP 65(b)(2) that became effective December 1,2009.

Rule 65.1. Proceedings Against a Surety(a) Proceedings. Whenever these rules require

or allow a party to give security, and security

is given through a bond or other undertakingwith one or more sureties, each surety submitsto the court’s jurisdiction and irrevocablyappoints the court clerk as its agent forreceiving service of any papers that affect itsliability on the bond or undertaking. Thesurety’s liability may be enforced on motionwithout an independent action. The motionand any notice that the court orders may beserved on the court clerk, who must promptlymail a copy of each to every surety whoseaddress is known.

(b) Acceptable Sureties. Acceptable sureties onbonds are those bonding companies holdingcertificates of authority from the Secretary ofthe Treasury. (See the latest U.S. Dep’t ofTreasury Circular 570.) When a courtdecision provides for the giving of security,the clerk will furnish counsel with theappropriate bond form.


Rules Committee Notes2002 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.



Rule 66. Receivers [Not used.]

Rule 67. Deposit into Court [Not used.]

Rule 68. Offer of Judgment

RCFC 69, 70, and 71 94

(a) Making an Offer; Judgment on anAccepted Offer. At least 14 days before thedate set for trial, a party defending against aclaim may serve on an opposing party an offerto allow judgment on specified terms, with thecosts then accrued. If, within 14 days afterbeing served, the opposing party serveswritten notice accepting the offer, either partymay then file the offer and notice ofacceptance, plus proof of service. The clerkmust then enter judgment.

(b) Unaccepted Offer. An unaccepted offer isconsidered withdrawn, but it does notpreclude a later offer. Evidence of anunaccepted offer is not admissible except in aproceeding to determine costs.

(c) Offer After Liability Is Determined. Whenone party’s liability to another has beendetermined but the extent of liability remainsto be determined by further proceedings, theparty held liable may make an offer ofjudgment. It must be served within areasonable time—but at least 14 days—beforethe date set for a hearing to determine theextent of liability.

(d) Paying Costs After an Unaccepted Offer. Ifthe judgment that the offeree finally obtains isnot more favorable than the unaccepted offer,the offeree must pay the costs incurred afterthe offer was made.



A minor change in wording has been made tomore closely conform to FRCP 68.



2010 AmendmentRCFC 68 has been amended in accordance

with the corresponding changes to FRCP 68 that

became effective December 1, 2009, (i) directingthat the time for service of an offer of judgment bemeasured from the date set for trial or hearingrather than from the date the trial or hearing isexpected to begin; and (ii) extending the timeperiods of 10 days to 14 days.

Rule 69. Execution [Not used.]

Rule 70. Enforcing a Judgment for a SpecificAct [Not used.]

Rule 71. Enforcing Relief For or Against aNonparty

When an order grants relief for a nonparty or maybe enforced against a nonparty, the procedure forenforcing the order is the same as for a party.

(Added Nov. 3, 2008.)


RCFC 71 has been adopted to conform to theFRCP and to confirm the court’s authority to issueorders enforceable for or against a nonparty, acircumstance that typically arises in conjunctionwith the issuance of a subpoena.

95 RCFC 71.1, 72, 73, 74, 75, and 76

TITLE IX. SPECIAL PROCEEDINGS

Rule 71.1. Condemning Real or PersonalProperty [Not used.]

Rule 72. Magistrate Judges: Pretrial Order[Not used.]

Rule 73. Magistrate Judges: Trial by Consent;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.

2008 AmendmentFormer RCFC 71A has been redesignated as

RCFC 71.1 in accordance with the FRCP.

Rule 74. Method of Appeal From MagistrateJudge to District Judge Under Title 28U.S.C. § 636(c)(4) and Rule 73(d)[Abrogated in FRCP.]

Rule 75. Proceedings On Appeal FromMagistrate Judge to District JudgeUnder Rule 73(d) [Abrogated inFRCP.]

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

RCFC 77 96

TITLE X. C O U R T A N D C L E R K :CONDUCTING BUSINESS;ISSUING ORDERS

Rule 77. Conducting Business; Clerk’sAuthority; Notice of an Order orJudgment

(a) When Court Is Open. The court isconsidered always open for filing any paper,issuing and returning process, making amotion, or entering an order.

(b) Place for Trial and Other Proceedings. (1) In General. Every trial on the merits

must be conducted in open court and, sofar as convenient, in a regular courtroom.Any other act or proceeding may be doneor conducted by a judge in chambers,without the attendance of the clerk orother court official, or at any other placedesignated by order.

(2) A Trial or Hearing in a ForeignCountry. On motion or on the judge’sown initiative, and upon a determinationby the judge to whom the case isassigned that the interests of economy,efficiency, and justice will be served, thechief judge may issue an orderauthorizing the judge to conductproceedings, including evidentiaryhearings and trials, in a foreign countrywhose laws do not prohibit suchproceedings.

(c) Clerk’s Office Hours; Clerk’s Orders.(1) Hours. The clerk’s office—with a clerk

or deputy on duty—must be open duringbusiness hours every day exceptSaturdays, Sundays, and legal holidaysas defined in RCFC 6(a)(4).

(2) Orders. Subject to the court’s power tosuspend, alter, or rescind the clerk’saction for good cause, the clerk may:(A) issue process;(B) enter a default;(C) enter a default judgment under

RCFC 55(b)(1); and(D) act on any other matter that does not

require the court’s action.(d) Serving Notice of an Order or Judgment.

(1) Service. Immediately after entering anorder or judgment, the clerk must servenotice of the entry, as provided in RCFC5(b), on each party who is not in defaultfor failing to appear. The clerk mustrecord the service on the docket. A partyalso may serve notice of the entry asprovided in RCFC 5(b).

(2) Time to Appeal Not Affected by Lack ofNotice. Lack of notice of the entry doesnot affect the time for appeal orrelieve—or authorize the court torelieve—a party for failing to appealwithin the time allowed, except asallowed by Federal Rule of AppellateProcedure 4(a).



To more closely parallel the structure andcontent 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.

97 RCFC 77.1

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, andCourt Fees

(a) Business Hours. The clerk’s office is openfrom 8:45 a.m. to 5:15 p.m. on business days.A night box is provided for filing with theclerk’s office between 5:15 p.m. and 12:00midnight on any business day for any paperdue that day. The night box is located insidethe gate at the garage entrance on H Street.Counsel are advised to telephone the clerk'soffice, (202) 357-6400, by 9:30 a.m. thefollowing business day to confirm receipt.

(b) Scheduling. The clerk will schedule the useof courtrooms in Washington, DC, and will beresponsible for all arrangements forcourtrooms and other facilities required by thecourt at locations outside Washington, DC.All conferences, oral arguments, trials, andother recorded court proceedings will bescheduled by the assigned judge by filing anorder with the clerk.

(c) Court Fees.(1) In General. Court fees are prescribed by

the Judicial Conference of the UnitedStates pursuant to 28 U.S.C. § 1926(a),as adjusted in the case of the fee foradmission in accordance with RCFC83.1(b)(4).

(2) Fee Schedule. A copy of the applicableschedule of fees is available on thec o u r t ’ s w e b s i t e a twww.uscfc.uscourts.gov or may beobtained by contacting the office of theClerk of the United States Court ofFederal Claims, 717 Madison Place, NW,Washington, DC 20005.

(3) Method of Payment. Fees for servicesrendered by the clerk must be paid inadvance; all checks should be madepayable to “Clerk, United States Court ofFederal Claims.”

(As revised and reissued May 1, 2002; as amendedMar. 15, 2005, Aug. 2, 2005, Nov. 3, 2008.)


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 providedfor in RCFC 83.1(b)(4). Currently applicable feeschedules are obtainable on the court’s website andthrough a variety of other published sources.




RCFC 77.2 and 77.3 98

Rule 77.2. Authorization to Act on CertainMotions

(a) Authority of the Clerk. The clerk may acton any motion for an enlargement of time toanswer or respond to a complaint or forsubstitution of counsel if:(1) the motion states that opposing counsel

has no objection; (2) no opposition to the motion has been

timely filed; or (3) opposing counsel files a consent.The clerk may not allow enlargements thatexceed 60 days in total.

(b) Signing an Order for an Absent Judge. Ifan order is required and the assigned judge isunavailable, an order may be presented to thechief judge or to another judge designated bythe assigned judge for signature.



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. Withdrawing, Disposing of, andUnsealing Papers and Exhibits

(a) Withdrawing Papers and Exhibits.(1) In General. A paper or exhibit filed

with the court may not be withdrawnfrom the office or custody of the clerkexcept by order of the court, but such anorder should be entered only inextraordinary circumstances. Anywithdrawal of a paper or exhibit pursuantto a court order must be recorded throughan appropriate docket entry.

(2) During Trial. The court reporterengaged to transcribe a trial proceedingmay temporarily withdraw any paper orexhibit for use during that proceeding.All papers and exhibits admitted intoevidence or designated to accompany thetranscript of the proceeding must remainin the reporter’s custody until thetranscript is filed with the clerk.

(b) Disposing of Physical Exhibits. All trialexhibits, including models, diagrams,depositions, transcripts, briefs, tables, andcharts, will be destroyed or otherwisedisposed of by the clerk unless they areremoved from the clerk’s custody by the partywho produced them either:(1) within 60 days after the entry of final

judgment by this court; or (2) in the event of an appeal, within 90 days

after the receipt and filing of a mandateor other process or certificate showingthe disposition of the case by theappellate court.

(c) Unsealing Papers and Exhibits. Unlessotherwise required by statute or order andabsent a timely objection by any party, theclerk, upon notice to the parties, may unsealany paper or exhibit filed under seal either:(1) 5 years after the entry of final judgment

by this court; or (2) in the event of an appeal, 5 years after

the receipt and filing of a mandate orother process or certificate showingdisposition of the case by the appellatecourt.

(As revised and reissued May 1, 2002; as amendedNov. 15, 2007, Nov. 3, 2008, July 13, 2009.)

99 RCFC 78 and 79


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 exhibitsfrom 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).



2009 AmendmentThe last sentence of subdivision (a)(1) has

been amended to clarify that the withdrawal of apaper or exhibit filed with the clerk must berecorded through an appropriate docket entry.

Further, as an historical note, we add that thecurrent structure of RCFC 77.3 relates back to therestyling of the rule in 2008 when formersubdivisions (a) and (b) were combined into thenew subdivision (a) and the remaining subdivisionsrenumbered as subdivisions (b) and (c).

Rule 78. Hearing Motions; Submission onBriefs [Not used.]

Rule 79. Records Kept by the Clerk(a) Civil Docket.

(1) In General. The clerk must keep arecord known as the “civil docket” in theform and manner prescribed by theDirector of the Administrative Office ofthe United States Courts with theapproval of the Judicial Conference ofthe United States. The clerk must entereach civil action in the docket. Actionsmust be assigned consecutive filenumbers, which must be noted in thedocket where the first entry of the actionis made.

(2) Items to be Entered. The followingitems must be marked with the filenumber and entered chronologically inthe docket:(A) papers filed with the clerk;(B) process issued, and proofs of

service or other returns showingexecution; and

(C) appearances, orders, verdicts, andjudgments.

(3) Contents of Entries. Each entry mustbriefly show the nature of the paper filedor writ issued, the substance of eachproof of service or other return, and the

RCFC 80 and 80.1 100

substance and date of entry of each orderand judgment.

(b) Civil Judgments and Orders. The clerkmust keep a copy of every final judgment andappealable order; of every order affecting titleto or a lien on real or personal property; andof any other order that the court directs to bekept. The clerk must keep these in the formand manner prescribed by the Director of theAdministrative Office of the United StatesCourts with the approval of the JudicialConference of the United States.

(c) Indexes; Calendars. Under the court’sdirection, the clerk must:(1) keep indexes of the docket and of the

judgments and orders described in RCFC79(b); and

(2) prepare calendars of all actions ready fortrial.

(d) Other Records. The clerk must keep anyother records required by the Director of theAdministrative Office of the United StatesCourts with the approval of the JudicialConference 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. Stenographic Transcript as EvidenceIf stenographically reported testimony at a hearingor trial is admissible in evidence at a later trial, thetestimony may be proved by a transcript certifiedby the person who reported it or by any othermethod authorized by the court (see Appendix ofForms, Forms 3B and 3C).



Former subdivisions (a), (b), and (c) weredeleted 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. Court Reporters(a) In General. Trial proceedings will be

transcribed by a court reporter provided by thecourt who will be under the jurisdiction andcontrol of the assigned judge.

(b) Preparing a Transcript.(1) Form. A transcript should be produced

on nontransparent white paper notexceeding 8½ by 11 inches and boundalong the left margin. The pages shouldbe numbered consecutively, with aminimum of 25 lines per page. It isunnecessary for witnesses to sign thetranscript volume(s) containing theirtestimony.

(2) Contents. (A) Caption Page. Each transcript

volume must include a caption pagelocated at the beginning of thevolume setting forth:(i) the title of the case;

101 RCFC 80.1 (cont.)

(ii) the place and date of theproceeding;

(iii) the name of the judge; and (iv) the appearances of counsel.

(B) Witness Identification. Each timea witness is called to testify, thereporter must identify:(i) the name of the witness and

the nature of the examination(such as direct, cross, redirect,and recross); and

(ii) the name of counselconducting the examination.

(C) Index. Each transcript volumemust include an index located at thebeginning of the volume listing: (i) the name of each witness

testifying, citing the page ofthe transcript where direct,cross, redirect, or recrossbegins; and

(ii) each exhibit offered andreceived into evidence, first forthe plaintiff, then for thedefendant, and then for anyother party, with a briefstatement of the nature of theexhibit and the page of thetranscript where the exhibitwas offered and received.

(D) Master Index. Where the numberof pages in the final transcriptexceeds 500, the court reporter mustprovide a separately bound masterindex containing a complete list ofthe information set forth in RCFC80.1(b)(2)(C).

(c) Labeling Exhibits. Unless the courtotherwise directs the parties to designate theirexhibits, the court reporter must label eachexhibit with:(1) the title and docket number of the case;(2) the exhibit number;(3) the party offering the exhibit, whether

plaintiff, defendant, or any other party;and

(4) the number of pages in each exhibit.(d) Filing a Transcript and Exhibits.

(1) In General. Unless otherwise orderedby the court, the court reporter must filethe transcript of the trial proceedings,including the exhibits admitted intoevidence or designated to accompany thetranscript, with the clerk within 30 daysafter the conclusion of the proceeding.

(2) How Filing Is Made. A transcript isfiled by delivering the transcript andexhibits to the clerk’s office or byenclosing them in a packet andtransmitting them to the Office of theClerk of the United States Court ofFederal Claims, 717 Madison Place, NW,Washington, DC 20005. The obligationfor filing the transcript and exhibitswithin the period prescribed in RCFC80.1(d)(1) rests on the reporter.

(e) Certificate of Reporter. The reporter mustsign and append to the transcript a certificatecertifying that the record is a correct transcriptof the proceeding. See Appendix of Forms,Forms 3B and 3C.

(As revised and reissued May 1, 2002; as amendedAug. 2, 2005, Nov. 3, 2008.)


RCFC 80.1 has no FRCP counterpart. Therule’s principal text formerly appeared in theserules 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. The

RCFC 80.1 (cont.) 102

changes 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



103 RCFC 81, 82, 83, and 83.1

TITLE XI. GENERAL PROVISIONS

Rule 81. Applicability of the Rules in General;Removed Actions [Not used.]

Rule 82. Jurisdiction and Venue Unaffected [Not used.]

Rule 83. Rules by Court of Federal Claims;Judge’s Directives

(a) In General. After giving public notice and anopportunity for comment, the United StatesCourt of Federal Claims, acting by a majorityof its judges, may adopt and amend rulesgoverning its practice. Such rules, to theextent permitted by this court’s jurisdiction,must be consistent with the Federal Rules ofCivil Procedure and must conform to anyuniform numbering system prescribed by theJudicial Conference of the United States. Arule takes effect on the date specified by thecourt and remains in effect unless amended bythe court. Copies of rules and amendmentsmust, on their adoption, be furnished to theAdministrative Office of the United StatesCourts and be made available to the public.

(b) Procedure When There Is No ControllingLaw. A judge may regulate practice in anymanner consistent with federal law or rulesadopted under 28 U.S.C. § 2072 or 2503(b).No sanction or other disadvantage may beimposed for noncompliance with anyrequirement not in federal law, federal rules,or these rules unless the alleged violator hasbeen furnished in the particular case withactual 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 an

individual case, so long as that practice isconsistent with federal law and rules.



Rule 83.1. Attorneys(a) Eligibility to Practice.

(1) In General. An attorney is eligible topractice before this court if the attorney:(A) is a member in good standing of the

bar of the highest court of any U.S.state, territory, or possession or theDistrict of Columbia; and

(B) is a member in good standing of thebar of this court; or

(C) was a member in good standing ofthe bar of this court’s predecessor,the United States Court of Claims.

(2) Pro Hac Vice. An attorney mayparticipate pro hac vice in anyproceeding before this court if:(A) the attorney is admitted to practice

before the highest court of any U.S.state, territory, or possession or theDistrict of Columbia; and

(B) the attorney of record for any partyhas requested and is present forsuch participation and has receivedthe court’s approval.

(3) Pro Se Litigants. An individual who isnot an attorney may represent oneself ora member of one’s immediate family,but may not represent a corporation, anentity, or any other person in anyproceeding before this court. The termscounsel, attorney, and attorney of recordinclude such individuals appearingpro se.

(b) Admission to Practice.(1) Qualifications. Any person of good

moral character who is a member ingood standing of the bar of the highestcourt of any U.S. state, territory, orpossession or the District of Columbia

RCFC 83.1 (cont.) 104

may be admitted to practice before thiscourt.

(2) Procedures.(A) In General. An attorney may be

admitted to practice before thiscourt by oral motion or by verifiedapplication. (i) By Oral Motion in an

Admissions Proceeding. Amember of the bar of thiscourt may make an oralmotion to admit an applicantto the bar during the monthlya t t o r n e y a d m i s s i o n sproceeding held at theHoward T. Markey NationalCourts Building, 717 MadisonPlace, NW, Washington, DC20005, at the times posted onthe court’s website atwww.uscfc.uscourts .gov(generally 10:00 a.m. onThursday of the first full weekin every month). Motionswill be heard in a courtroomposted in the lobby of thecourthouse on the day of theproceeding. Applicants foradmission must appear in theclerk’s office no later than9:30 a.m. to:(I) pay the admission fee

s e t f o r t h i nRCFC 83.1(b)(4);

(II) complete a “Form forAdmission via Motioni n O p e n C o u r t ”(available on the court’swebsite); and

(III) present a certificate ofthe clerk of the highestcourt of any U.S. state,territory, or possessionor the District ofColumbia which hasbeen issued within 30

days and states that theapplicant is a memberin good standing of thebar of such court.

Applicants who for specialreasons are unable to appearfor admission on one of theposted dates should contactthe clerk’s office to makealternate arrangements.

(ii) By Oral Motion in aP r o c e e d i n g O u t s i d eWashington, DC. A memberof the bar of this court maymake an oral motion to admitan applicant to the bar duringa court proceeding before anyjudge of this court so long asthe applicant:(I) provides the judge with

a completed copy of averified application fora d m i s s i o n ( s e eAppendix of Forms,Form 1); or

(II) advises the judge of thea p p l i c a n t ’ squalifications as setf o r t h i n R C F C8 3 . 1 ( b ) ( 1 ) , a n drepresents that theapplicant will promptlyapply to the clerk foradmission by verifiedapplication as providedi n R C F C83.1(b)(2)(a)(iii).

(iii) By Verified Application. Anattorney may seek admissionto practice before this courtwithout appearing in personby presenting the clerk with averified application foradmission (see Appendix ofForms, Form 1) along with thefollowing documentation:


105 RCFC 83.1 (cont.)

(I) a certificate of the clerkof the highest court ofany U.S. state, territory,or possession or theDistrict of Columbiawhich has been issuedwithin 30 days andstates that the applicantis a member in goodstanding of the bar ofsuch court;

(II) two letters or signedstatements of membersof the bar of this courtor of the Supreme Courtof the United States, notrelated to the applicant,affirming that theapplicant is personallyknown to them, that theapplicant possesses allof the qualificationsrequired for admissionto the bar of this court,that they have examinedthe application, and thatthe applicant's personala n d p r o f e s s i o n a lcharacter and standingare good; and

(III) an oath in the formprescribed in RCFC83.1(b)(3) signed by thea p p l i c a n t a n dadministered by anofficer authorized toadminister oaths in theU.S. state, territory, orpossession or theDistrict of Columbiawhere the oath is given,or as permitted by 28U.S.C. § 1746.

(3) Oath. An applicant for admission topractice before this court must take thefollowing oath, to be administered by the

presiding judge or by the clerk: I, _________, do solemnly swear(or affirm) that I will support theConstitution of the United Statesand that I will conduct myself in anupright manner as an attorney ofthis court.

(4) Fee. Unless the applicant is employedby this court or is an attorneyrepresenting the United States beforethis court, the applicant must pay theadmission fee in accordance with the feeschedule posted on the court’s website atwww.uscfc.uscourts.gov. The admissionfee includes $100.00 above the amountprescribed by the Judicial Conference ofthe United States pursuant to 28 U.S.C.§ 1926(a). The clerk will deposit thisadditional sum in a fund to be used bythe court for the benefit of the membersof the bench and the bar in theadministration of justice.

(5) Notice to the Court. An attorneyadmitted to the bar of this court mustprovide the clerk with timely notice of:(A) any change in the attorney’s

address; and(B) any change in the status of the

attorney’s membership in the bar ofthe jurisdiction upon which theattorney’s admission to the bar ofthis court was based.

(6) Foreign Attorneys. (A) In General. Any person qualified

to practice in the highest court ofany foreign state may be speciallyadmitted to practice before thiscourt but only for purposes limitedto a particular case; such personmay not serve as the attorney ofrecord.

(B) Procedures. A member of the barof this court must file with theclerk a written motion to admit theapplicant at least 7 days prior to thecourt’s consideration of the motion.


RCFC 83.1 (cont.) 106

In the case of such an admission, anoath and fee are not required.

(c) Attorney of Record.(1) In General. A party may have only one

attorney of record in a case at any onetime and, with the exception of a pro selitigant appearing under RCFC83.1(a)(3), must be represented by anattorney (not a firm) admitted to practicebefore this court. Any attorney assistingthe attorney of record must bedesignated “of counsel.”

(2) Signing Filings. All filings must besigned in the attorney of record’s name.Any attorney who is admitted to practicebefore this court may sign a filing in theattorney of record’s name by adding thefollowing after the name of the attorneyof record: “by [the signing attorney’sfull name].” Such authorization to signfilings does not relieve the attorney ofrecord from the provisions of RCFC 11.

(3) Entering an Appearance. (A) By Parties Other Than the United

States. The attorney of record forany party other than the UnitedStates must include on the initialpleading or paper the attorney’sname, address, electronic mailaddress, telephone number, andfacsimile number.

(B) By the United States. After serviceof the complaint, the attorney ofrecord for the United States mustpromptly file with the clerk andserve on all other parties a notice ofappearance setting forth theattorney’s name, address, electronicmail address, telephone number,and facsimile number.

(C) Changes in Contact Information.An attorney of record mustpromptly file with the clerk andserve on all other parties a notice ofany change in the attorney’scontact information.

(4) Substituting Counsel. (A) By Parties Other Than the United

States.(i) In General. Any party other

than the United States mayseek leave of the court tosubstitute its attorney ofrecord at any time by filing amotion signed by the party orby the newly designatedattorney along with anaffidavit of appointment bysuch attorney. (I) With the Consent of

the Previous Attorney.I f t h e p r e v i o u sattorney’s consent isannexed to or indicatedin the motion, the clerkwill automatically enterthe substitution on thedocket.

(II) Without the Consent ofthe Previous Attorney.If the motion is filedwithout the consent ofthe previous attorney,the previous attorneymust be served with themotion and will have 14days to show cause whythe motion should notbe allowed.

(ii) Death of the PreviousAttorney. In the event of thedeath of the attorney ofrecord, the party mustpromptly notify the court andmove to substitute anotherattorney admitted to practicebefore this court.

(B) By the United States. The UnitedStates may substitute its attorney ofrecord at any time by filing withthe clerk and serving on all otherparties a notice of appearance of

107 RCFC 83.1 (cont.)

the new attorney.(5) Withdrawing Counsel. An attorney of

record for a party other than the UnitedStates may not withdraw the attorney’sappearance except by leave of the courton motion and after notice is served onthe attorney’s client.

(d) Honorary Bar Membership. Uponnomination by the chief judge and with theapproval of the other judges, the court maypresent an honorary membership in the bar ofthis court to a distinguished professional ofthe United States or of another nation who isknowledgeable in the affairs of law andgovernment in his or her respective country.The candidate for honorary membership willbe presented at the bar in person and willreceive a certificate of honorary barmembership.

(As revised and reissued May 1, 2002; as amendedAug. 2, 2005, June 20, 2006, Nov. 3, 2008, Jan. 11,2010, July 15, 2011.)


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.



2010 AmendmentRCFC 83.1 has been amended to restate the

qualifications for admission to practice before thecourt (paragraph (b)(1)) and the procedures foradmission, whether by oral motion or by verifiedapplication (paragraph (b)(2)). Specifically,admission to the highest court of any U.S. state,territory, or possession or the District of Columbiawill be recognized as the only acceptablequalification for admission to practice before thiscourt and confirmation of an applicant’s admissionstatus will require submission of a currentcertificate of good standing prepared by the clerkof such court.

In addition, the time period of 3 days formerlyset forth in RCFC 83.1(b)(5)(B) has been changedto 7 days in accordance with the FRCP’s generalguidelines for time computation that becameeffective December 1, 2009.

2011 AmendmentRCFC 83.1(a) has been amended to clarify

that eligibility to practice before this court requiresthat an attorney be a member in good standing ofthe bar of the highest court of any U.S. state,

RCFC 83.2 108

territory, or possession or the District of Columbiaas well as a member in good standing of thiscourt’s own bar.

In addition, subdivision (b) has been amendedby adding a new paragraph (5) requiring anattorney admitted to practice before this court toprovide the clerk with timely notice of any changein the attorney’s address and any change in thestatus of the attorney’s membership in the bar ofthe jurisdiction upon which the attorney’sadmission to the bar of this court was based. Toaccommodate the addition of new paragraph (5),former paragraph (5) (“Foreign Attorneys”) hasbeen renumbered as paragraph (6).

Finally, subparagraphs (c)(3)(A) and (B) havebeen amended to require the inclusion of anelectronic mail address by the attorney of recordfor any party.

Rule 83.2. Attorney Discipline(a) In General. The United States Court of

Federal Claims, in furtherance of its inherentpower and responsibility to supervise theconduct of attorneys who are members of itsbar, promulgates the following rule forattorney discipline.

(b) Definitions. For purposes of this rule, thefollowing definitions apply:(1) Another Court. Another court is defined

as any court of the United States, theDistrict of Columbia, or any U.S. state,territory, possession, or commonwealth.

(2) Serious Crime. A serious crime is definedas:(A) any felony; or (B) any lesser crime whose necessary

elements, as determined by thestatutory or common law definition ofthe crime in the jurisdiction where theconviction occurred, include:(i) i n t e r f e rence w i t h t h e

administration of justice;(ii) false swearing; (iii) misrepresentation;(iv) fraud; (v) willful failure to file an income

tax return;(vi) deceit; (vii) bribery;(viii) extortion;(ix) misappropriation; (x) theft; or (xi) an attempt, conspiracy, or

solicitation of another tocommit a serious crime.

(c) Grounds for Discipline. An attorney admittedto practice before this court, including anattorney admitted for the purpose of aparticular proceeding pursuant to RCFC83.1(a)(2) or (b)(5), may be disciplined underthis rule on any of the following grounds:(1) the conviction by another court of a

serious crime as defined in RCFC83.2(b)(1) and (2);

(2) an act or omission that results in theattorney’s disbarment or suspension byanother court;

(3) disbarment on consent or resignation fromthe bar of another court while aninvestigation into an allegation ofmisconduct is pending;

(4) failure to comply with the terms of thisrule, including failure to notify the court inaccordance with RCFC 83.2(e); or

(5) any conduct before the court that isunbecoming a member of the bar of thiscourt.

(d) Types of Discipline.(1) In General. An attorney disciplined for

conduct identified in RCFC 83.2(c) maybe: (A) disbarred from the court; (B) suspended from practice before the

court; (C) publicly or privately reprimanded; (D) required to provide restitution or pay

monetary sanctions; or (E) subjected to other such disciplinary

action as the circumstances maywarrant.

(2) Sanctions Under Other Provisions.Assessment of damages, costs, expenses,

109 RCFC 83.2 (cont.)

or attorney fees under RCFC 11, 16, 37, or45, 28 U.S.C. § 1927, or similar statutoryprovisions are not disciplinary sanctionswithin the meaning of this rule and are notgoverned by this rule.

(e) Attorney’s Duty to Notify the Court of aConviction or Discipline Imposed byAnother Court.(1) In General. An attorney admitted to

practice before this court must notify theclerk in writing within 14 days of theattorney’s:(A) conviction by another court of a

serious crime; (B) disbarment or suspension by another

court; or (C) disbarment on consent or resignation

from the bar of another court while aninvestigation into an allegation ofmisconduct is pending.

(2) Contents of Notification. The notificationmust include:(A) the name of the court imposing the

conviction or discipline;(B) the date of the court’s action;(C) the docket number;(D) the offense committed; and(E) the discipline imposed.

(f) Standing Panel on Attorney Discipline. (1) In General. All disciplinary matters will

be referred to a Standing Panel onAttorney Discipline.

(2) Members.(A) Appointment. The chief judge will

appoint three judges to the standingpanel to serve staggered three-yearterms, with the initial appointmentsbeing for one-, two-, and three-yearterms and all subsequent appointmentsbeing for three-year terms.

(B) Eligibility for Reappointment. Ajudge who has served on the standingpanel for three years will not beeligible for appointment to anotherterm until three years after thetermination of his or her last

appointment. (C) Chairperson. The standing panel will

designate one of its members to serveas the chairperson.

(3) Unavailability of a Standing PanelMember. (A) To Hear a Particular Matter. If a

member of the standing panel isunable or unavailable to hear aparticular matter, the chief judge willappoint another judge to be a memberof the panel for that matter.

(B) To Complete the Member’s Term. Ifa member of the standing panel isunable to complete the remainder ofhis or her term, the chief judge willappoint another judge to serve theremainder of the term.

(g) Initiating Disciplinary Proceedings.(1) Docketing. Consistent with RCFC 83.2(l),

the clerk will maintain an attorneydisciplinary docket and will assign anumber to each matter.

(2) Referring Matters to the Standing Panel.The clerk must refer to the standing panel:

(A) any information received from anothercourt concerning a member of thiscourt’s bar involving disbarment,suspension, disbarment on consent, orresignation from the bar of anothercourt while an investigation into anallegation of misconduct is pending;and

(B) any complaint regarding attorneymisconduct received from a judge orspecial master of the court or amember of the public.

(3) Appointing Investigatory Counsel. (A) In General. The standing panel may

appoint the court’s staff attorney orother appropriate court personnel toinvestigate allegations of misconduct.

(B) Role of Investigatory Counsel. Inc o n d u c t i n g a d i s c i p l i n a r yinvestigation, the investigatorycounsel may:

RCFC 83.2 (cont.) 110

(i) review the complaint and anyrelevant documents available atthe court or provided by thecomplainant;

(ii) interview witnesses, includingthe complainant and theattorney subject to theproceeding;

(iii) provide to the standing panel, atthe panel’s request, a reportdetailing the investigatorycounsel’s findings; and

(iv) take any additional steps that arereasonably necessary toeffectuate the investigation.

(C) Outside Counsel. In addition to, or asan alternative to, the proceduredescribed in subparagraphs (A) and(B), in the event the court staffattorney or other appropriate courtpersonnel is recused, at any stage of aproceeding the standing panel mayappoint outside counsel to investigateand/or prosecute allegations ofmisconduct under this rule.

(4) Issuing and Serving a Show Cause Order.To initiate a disciplinary proceeding, thestanding panel must:(A) issue a show cause order describing

the attorney’s alleged misconduct anddirecting the attorney to show causewhy a specific discipline should not beimposed or why a discipline to bedetermined at a later date should notbe imposed; and

(B) serve the order on the attorney inaccordance with RCFC 83.2(m).

(5) Presumed Discipline. Unless the standingpanel concludes that a different disciplinemay be appropriate, the followingdiscipline is presumed to apply and shouldbe identified in the show cause order:(A) For Conviction by Another Court of

a Serious Crime. Disbarment is thepresumed discipline for the convictionby another court of a serious crime.

(B) For Disbarment or Suspension byAnother Court. Reciprocal disbarmentor suspension is the presumeddiscipline for an act or omission thatresults in an attorney’s disbarment orsuspension by another court.

(C) For Disbarment on Consent orResignation From the Bar of AnotherCourt. Reciprocal disbarment is thepresumed discipline for an attorney’sdisbarment on consent or resignationfrom the bar of another court while aninvestigation into an allegation ofmisconduct is pending.

(D) For Conduct Unbecoming a Memberof the Bar of this Court. There is nopresumed discipline for conduct that isunbecoming a member of the bar ofthis court; the standing panel willdetermine the appropriate discipline.

(6) Responding to a Show Cause Order.Unless otherwise ordered, an attorney mustfile any response to a show cause orderwithin 30 days after service of the order.Any request for a hearing must be includedin the response.

(7) Dismissing a Matter Without FurtherProceedings. The standing panel maydismiss a matter without furtherproceedings if the panel concludes that theallegation on its face is insufficient towarrant the imposition of any discipline.

(h) Proceedings Before the Standing Panel.(1) Representation by Counsel. An attorney

may be represented by counsel in anydisciplinary proceeding before thestanding panel.

(2) Suspending an Attorney. The standingpanel will immediately suspend anattorney from practicing before the courtupon notice that an attorney:(A) has been convicted by another court of

a serious crime; or (B) has been disbarred, suspended,

disbarred on consent, or resigned fromthe bar of another court while an

111 RCFC 83.2 (cont.)

investigation into an allegation ofmisconduct is pending,

(3) Record of the Proceeding. (A) Content. The record will consist of

the show cause order, the response tothe order, all evidentiary materials,and all documents, briefs, andmemoranda submitted to or consideredby the standing panel or the court.

(B) W i t h h o l d i n g I n f o r m a t i o n .Information will be withheld from anattorney only in extraordinarycircumstances, e.g., for nationalsecurity or criminal investigationpurposes.

(C) Copying and Responding toDocuments. If the record includesdocuments in addition to the showcause order and the response, anattorney must be given the opportunityto inspect and copy the additionaldocuments at his or her expense and, ifthe attorney contests the charge buthas not requested a hearing, must begiven the opportunity to file asupplemental response.

(4) Issuing a Final Order in an UncontestedMatter. If an attorney does not respond toa show cause order issued pursuant toRCFC 83.2(g)(4) or does not object to theimposition of discipline, the standing panelmay issue a final order imposing suchdiscipline.

(5) Conducting a Hearing in a ContestedMatter.(A) In General. If an attorney requests a

hearing in his or her response to ashow cause order or in a supplementalresponse filed pursuant to RCFC83.2(h)(3)(C), the standing panel willschedule a hearing and will determinewhether the submission of evidence,including the calling of witnesses, isappropriate.

(B) Notice of Hearing. An attorney mustbe given at least 30 days’ notice of the

time, date, and place of the hearing.(C) Presumptions.

(i) For Conviction by AnotherCourt of a Serious Crime.When an attorney has beenconvicted by another court of aserious crime, the standingpanel:(I) will treat the conviction

as conclusive evidence ofthe commission of thatcrime, whether theconviction resulted from aplea of guilty or nolocontendere or from averdict after trial orotherwise, and regardlessof the pendency of anyappeal; and

(II) will l imit furtherp r o c e e d i n g s t o adetermination of the finaldiscipline to be imposed.

(ii) For Disbarment, Suspension,Disbarment on Consent, orResignation From the Bar ofAnother Court. The standingpanel will treat an attorney’sd i sbarment , suspens ion ,disbarment on consent, orresignation from the bar ofanother court while aninvestigation into an allegationof misconduct is pending asconclusive evidence that themisconduct in fact occurred andthat the discipline wasappropriate unless the standingpanel concludes that:(I) the procedure was so

lacking in notice or anopportunity to be heardthat it constituted adeprivation of dueprocess;

(II) there was such an

RCFC 83.2 (cont.) 112

inf i rmity of proofe s t a b l i s h i n g t h emisconduct that this courtcould not, consistent withits duty, accept as finalthe conclusion on thematter;

(III) the imposition of thesame discipline by thiscourt would result ingrave injustice; or

(IV) t h e m i s c o n d u c testablished is deemed towarrant substantiallydifferent discipline.

(D) Subpoena. The standing panel maycompel by subpoena:(i) the attendance of witnesses,

including the attorney subject tothe proceeding; and

(ii) the production of documents.(E) Cross-Examining Witnesses. The

attorney subject to the proceedingmust be afforded an opportunity tocross-examine any witnesses calledbefore the standing panel and tointroduce evidence in defense ormitigation.

(F) Recording. A hearing will be digitallyrecorded unless an attorney arrangesto have a reporting service present athis or her own expense.

(G) Post-Hearing Brief. The standingpanel may order the filing of a post-hearing brief, which may include, atthe panel’s direction, either astatement of facts or proposed findingsof fact. Post-hearing briefing is not amatter of right.

(H) Issuing a Final Order. Following theconclusion of the disciplinaryproceeding, the standing panel willissue a final order.

(6) Reporting a Final Order. The standingpanel may: (A) direct the attorney or the clerk to send

a copy of the final order to all othercourts before which the attorney isadmitted; and

(B) direct the clerk to notify the NationalDisciplinary Data Bank of thediscipline imposed.

(i) Disbarment on Consent While DisciplinaryProceeding Is Pending.(1) In General. At an attorney’s request and

upon receipt of the affidavit required underRCFC 83.2(i)(2), the standing panel maycease any investigation or proceedingbeing conducted under this rule and mayenter an order disbarring the attorney onconsent.

(2) Affidavit. To initiate a disbarment onconsent, an attorney must file an affidavitstating that:(A) the attorney is aware that an

investigation or proceeding involvingallegations of the attorney’smisconduct is currently pending, alongwith a statement setting forth thespecifics of those allegations;

(B) the attorney acknowledges that thematerial facts so alleged are true;

(C) the attorney consents to disbarment; (D) the attorney is freely and voluntarily

rendering consent, is not beingsubjected to coercion or duress, and isfully aware of the implications of suchconsent; and

(E) the attorney consents to disbarmentbecause the attorney knows that ifcharges were brought on the mattersunder investigation, the attorney couldnot present a successful defense.

(j) Review of the Standing Panel’s Final Order.(1) A Petition for Rehearing.

(A) In General. An attorney may seekreview of the standing panel’s finalorder either by:(i) filing a petition for rehearing by

the standing panel; or (ii) filing a combined petition for

rehearing by the standing panel

113 RCFC 83.2 (cont.)

and suggestion for rehearing bythe active judges of the court.

(B) Contents. The petition must state withparticularity each point of law or factthat the petitioner believes thestanding panel has overlooked ormisapprehended.

(C) Time for Filing. Any petition forrehearing must be filed within 14 daysafter entry of the standing panel’s finalorder.

(2) By Order of the Court. A majority of theactive judges may order that a disciplinarymatter be reheard by the active judges ofthe court.

(3) Limitations on Rehearing by the ActiveJudges of the Court. A rehearing by theactive judges of the court is not favoredand will generally not be ordered exceptwhen necessary to secure or maintainuniformity of the court’s decisions orwhen the proceeding involves a questionof exceptional importance.

(k) Reinstatement. (1) A Petition for Reinstatement.

(A) Contents. A petition for reinstatementmust demonstrate by clear andconvincing evidence that:(i) the petitioner has the necessary

m o r a l q u a l i f i c a t i o n s ,competency, and learning in thelaw required for readmission;and

(ii) the petitioner’s resumption ofthe practice of law will not bedetrimental to the integrity andstanding of the bar, to theadministration of justice, or tothe public interest.

If a hearing is requested, such requestmust be included in the petition.

(B) Time for Filing. (i) After Conviction by Another

Court of a Serious Crime. Ifdisbarment by this court wasimposed based on an attorney’s

conviction by another court of aserious crime, the attorney mayfile a petition for reinstatementonly when the conviction isvacated or reversed.

(ii) A f t e r D i sbarm e n t o rSuspension by Another Court.If disbarment or suspension bythis court was imposedreciprocally based on anattorney’s disbarment orsuspension by another court, theattorney may file a petition forreinstatement only when theoriginal discipline is lifted orexpires.

(iii) After Disbarment. An attorneywho has been disbarred as aresult of conduct that isunbecoming a member of thebar of this court may file apetition for reinstatement anytime after the expiration of threeyears from the effective date ofthe disbarment.

(iv) After Suspension. (I) When Reinstatement Is

Not Automatic. If theorder suspending anattorney for conduct thatis unbecoming a memberof the bar of this courtdoes not include anautomat ic r ight ofre ins ta tement , suchattorney may file apetition for reinstatementafter the suspensionperiod expires.

(II) When Reinstatement IsAutomatic. If the originalsuspension order directsthat reinstatement beautomatic, the standingpanel will issue an orderreinstating the attorneywithin 14 days after

RCFC 83.2 (cont.) 114

receiving the attorney’saffidavit of compliancewith the suspension order.

(v) Successive Petitions. Anattorney may not file asuccessive pet i t ion forre ins ta tement unt i l theexpiration of at least one yearfrom the date of an adversejudgment on an earlier petition.

(C) Fees and Costs. The standing panelmay direct that the petitioner providean advance cost deposit in an amountset by the panel to cover anticipatedcosts of the reinstatement proceeding.

(2) Conducting a Hearing. The standingpanel will conduct a hearing on a petitionfor reinstatement if:(A) the petitioner requests such a hearing;

and(B) the panel is not satisfied based on the

petition alone that reinstatement isappropriate.

(3) Issuing a Final Order. The standingpanel will issue a final order, with orwithout a hearing, either:(A) denying the petition for reinstatement;

or (B) granting the petition if the panel

determines that the petitioner is fit toresume the practice of law andconcludes, upon a showing of goodcause, that it would be in the interestof justice to reinstate the petitioner.

(4) Conditions of Reinstatement. (A) In General. Reinstatement may be

conditioned on the payment of all orpart of the costs of the reinstatementproceeding and on the making ofpartial or complete restitution to anyparties harmed by the conduct that ledto the petitioner’s suspension ordisbarment.

(B) For Disbarment or Suspension ofFive Years or More. If the petitionerhas been disbarred or suspended for

five years or more, reinstatement may,in the discretion of the standing panel,additionally be conditioned on thefurnishing of proof of competency andlearning in law, including acertification by the bar examiners of astate or other jurisdiction of thepetitioner’s successful completion ofan examination for admission topractice subsequent to the date ofdisbarment or suspension.

(l) Access to Information.(1) Confidential i ty of an Ongoing

Disciplinary Proceeding. An ongoingdisciplinary proceeding must be keptconfidential unless:(A) the attorney subject to the proceeding

requests that the proceeding, includingany hearing before the standing paneland the record compiled in the matterpursuant to RCFC 83.2(h)(3), be opento the public; or

(B) the standing panel determines that it isappropriate to disclose the subjectmatter and status of a proceedingwhere: (i) the proceeding is based on the

conviction by another court of aserious crime;

(ii) the proceeding is based on anallegation that has becomegenerally known to the public;or

(iii) there is a need to notify a personor entity to protect the public,the legal profession, or theadministration of justice.

(2) Confidentiality After Issuance of a FinalOrder. (A) When No Discipline or a Private

Reprimand Is Imposed. If the finalorder imposes no discipline or imposesa private reprimand, the record of theproceeding compiled pursuant toRCFC 83.2(h)(3) must be keptconfidential unless the attorney

115 RCFC 83.3

subject to the proceeding requests thatit be made part of the public record.

(B) When an Attorney Is Disbarred onConsent. An order disbarring anattorney on consent must be made partof the public record, but the affidavitrequired under RCFC 82.3(i)(2) maynot be publicly disclosed or madeavailable for use in any otherproceeding except on order of thestanding panel.

(C) All Other Cases. If other discipline isimposed, the final order and the recordof the proceeding must be made partof the public record at the time thefinal order is issued. The standingpanel may, however, issue apermanent protective order prohibitingthe disclosure of any part of the recordto protect the interest of acomplainant, a witness, a third party ornonparty, or the attorney subject to theproceeding.

(m) Service.(1) Show Cause Order. A show cause order

must be served in person or by registeredor certified mail addressed to the attorneyat the attorney’s last known address. Ifservice by registered or certified mail isineffective, the standing panel must enteran order as appropriate to effect service.

(2) All Other Papers and Notices. Any otherpaper or notice is served by mailing thepaper or notice to the attorney’s lastknown address.

(n) Retention of Authority. Nothing contained inthis rule should be construed to deny anindividual judge the authority to maintaincontrol over court proceedings, such asproceedings for contempt, issuance of publicreprimands, or the imposition of fines of notmore than $1,000.00.

(As revised and reissued May 1, 2002; as amendedNov. 3, 2008, July 13, 2009, July 15, 2011.)


Former RCFC 83.2 has been renumbered asRCFC 7.1. New RCFC 83.2 formerly appeared inthese 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.



2009 AmendmentRCFC 83.2 has been rewritten in its entirety.

The new rule is intended to simplify the court’sprocedures for the disposition of attorney disciplinematters by providing for the appointment, by thechief judge, of a three-member standing panel ofthe court’s judges to address all aspects of thedisciplinary process, from the investigation ofcharges, to the conduct of hearings, to thedetermination of appropriate discipline.

2011 AmendmentRCFC 83.2(g)(3) has been expanded to include

a subparagraph (C) authorizing the standing panel“in the event the court staff attorney or otherappropriate court personnel is recused” to appointoutside counsel to investigate and/or prosecuteallegations of misconduct.

In addition, subparagraph (h)(5)(E) has beenclarified by changing the phrase “witnesses calledby the standing panel” to read “witnesses calledbefore the standing panel.”

Rule 83.3. Legal Assistance by a Law Student(a) In General. A law student qualified under

RCFC 83.3(b) may enter an appearance in thiscourt on behalf of any party in a case providedthat:(1) the party on whose behalf the student

appears has consented in writing;(2) a supervising attorney, as defined in RCFC

83.3(d), has indicated approval in writing;and

RCFC 83.3 (cont.) 116

(3) the written consent and approval have beenfiled with the clerk.

(b) Eligibility. To make an appearance under thisrule, a law student must:(1) be a student in good standing at a law

school approved by the American BarAssociation;

(2) have completed legal studies amounting toat least two semesters, or the equivalentthereof if the school operates on somebasis other than a semester basis;

(3) have knowledge of the Rules of the UnitedStates Court of Federal Claims, the FederalRules of Evidence, and the American BarAssociation Model Rules of ProfessionalConduct;

(4) be enrolled for credit in a clinical programat an accredited law school that maintainsmalpractice insurance for its activities andconducts its activities under the directionof a faculty member of the law school;

(5) be certified by the dean of the law schoolas being of good character and ofsufficient legal ability, and as beingadequately trained in accordance withRCFC 83.3(b)(1)–(4) to fulfill theresponsibilities of a legal intern to both theclient and the court. Such certificationmust be filed with the clerk and may bewithdrawn at any time by the dean uponwritten notice to the clerk;

(6) be certified by the chief judge to practicepursuant to this rule. Such certificationmay be withdrawn at any time by the chiefjudge or, in a given case, by the judge orspecial master before whom the lawstudent has entered an appearance, withoutnotice of hearing and without any showingof cause; and

(7) neither ask for nor receive any fee orcompensation of any kind from the clienton whose behalf service is rendered. Thisrule does not, however, prevent a lawyer,a legal aid bureau, a law school, or thegovernment from paying compensation toan eligible law student or from making

such charges for their services as mayotherwise be proper, nor does it preventany clinical program from receivingotherwise proper fees and expenses underRCFC 54(d)(2).

(c) Scope of Appearance. A law student who hasentered an appearance in a case may:(1) appear on the brief(s) and other written

pleadings filed with the court, providedthat the supervising attorney has read,approved, and co-signed all suchdocuments;

(2) participate in all proceedings ordered by ajudge or special master, including thetaking of depositions, provided that thesupervising attorney is present at all suchproceedings;

(3) engage in all other activities on behalf ofthe client in all ways that a licensedattorney may, subject to the generaldirection of the supervising attorney; and

(4) make a binding commitment on behalf ofthe client provided that both the client andthe supervising attorney have approved ofsuch commitment.

(d) Supervising Attorney. A supervising attorneyunder this rule will be deemed the attorney ofrecord pursuant to RCFC 83.1(c) and must:(1) be a member in good standing of the bar of

this court;(2) be approved for such service by the dean

of the law school at which the law studentis enrolled;

(3) be certified by this court as a studentsupervisor;

(4) assist and counsel the student in activitiesallowed under this rule and review suchactivities with the student, to the extentappropriate under the circumstances, forthe proper practical training of the studentand the protection of the client;

(5) assist the student in the preparation of thecase to the extent the supervising attorneyconsiders necessary and be available forconsultation with the client;

(6) be present with the student in all

117 RCFC 83.4 and 84

proceedings before a judge or specialmaster;

(7) co-sign all pleadings and other documentsfiled with the court;

(8) supplement oral or written work of thestudent as necessary to ensure properrepresentation of the client;

(9) assume full professional responsibility forany guidance relating to any workundertaken by the student and for thequality of the student’s work; and

(10) notify the dean of the law school at whichthe student is enrolled of any allegedfailure on the part of the student to abideby the letter and spirit of this rule.

(e) Retention of Authority. Nothing in this ruleshould be construed to prevent a judge fromestablishing exceptions to the activities setforth in RCFC 83.3(c), or from limiting astudent’s participation in a particular case.



RCFC 83.3 replaces former General OrderNo. 35, adopted on September 3, 1993. The onlychanges are stylistic or correct cross-references.



Rule 83.4. Advisory Council(a) In General. The United States Court of

Federal Claims Advisory Council will advisethe court on matters referred to it by the courtor deemed relevant by the council’s memberspertaining to the administration of the courtand the court’s relationship to the bar and tothe public.

(b) Membership. The council will consist of nofewer than 20 members of the bar of the court,appointed by the chief judge to three-yearterms, and must include representatives of all

of the court’s practice areas. The chief judgewill designate one of these members as thechairperson and will additionally appoint oneor more of the judges of the court as a liaisonbetween the court and the council.

(c) Organization. The council will meet at suchtimes and places as agreed to by its members.(The chief judge will provide facilities at thecourt to accommodate such meetings ifnecessary.) All members of the council,including the chief judge and the court’sliaison judge[s], may attend meetings andparticipate in discussions, but only councilmembers may vote on matters before thecouncil. Council members may designateofficers and committees and take any othersteps appropriate to conduct the council’sbusiness.

(d) Recommendations. The council may transmitits recommendations to the court informally orformally by letter to the chief judge. The courtmay consider any recommendation of thecouncil and take such action as the court deemsappropriate.



New RCFC 83.4 replaces General Order No. 7,which established the Advisory Council on April 5,1983. In addition to minor stylistic and formattingchanges, the new rule has increased the number ofmembers allowed on the Council and makes thechief judge responsible for designating thechairperson.



Rule 84. FormsForms referenced in these rules are set forth in theAppendix of Forms.

(As revised and reissued May 1, 2002.)

RCFC 85 and 86 118


RCFC 84 parallels in content its FRCPcounterpart.

Rule 85. TitleThese rules may be cited as the Rules of the UnitedStates Court of Federal Claims.

(As revised and reissued May 1, 2002, as amendedNov. 3, 2008.)


RCFC 85 has been changed to reflect thechange in the court’s name.



Rule 86. Effective Date These rules and any subsequent amendments areapplicable to all proceedings pending at the time ofthe adoption of the revision or amendment orthereafter filed, except to the extent that the courtdetermines that their application to a pendingaction would not be feasible or would workinjustice, in which event the former procedureapplies.

(As revised and reissued May 1, 2002; as amendedJune 20, 2006, Nov. 3, 2008.)


RCFC 86 reflects the effective date of the mostrecent revision to the court’s rules. In addition, therule adopts the practice of the FRCP to presumeapplication of rule changes to pending cases.

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

rewritten to clarify the rule’s essential purpose:that amendments to the court’s rules apply to all

pending proceedings unless the application of suchamendments would not be feasible or would workinjustice.



119 Appendix A

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 fordisclosures under RCFC 26(a), includinga statement as to when disclosures underRCFC 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 RCFC 26(c)or under RCFC 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.

III. JOINT PRELIMINARY STATUS REPORT

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,

Appendix A 120

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 resolut ioncontemplated?

(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, theparties shall confer specifically on thissubject.

(k) Are there special issues regardingelectronic case management needs?

(l) Is there other information of which

the 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. The partiesmay indicate in the Joint Preliminary Status Reportwhether they anticipate seeking a Fed. R. Evid.502(d) court order incorporating a non-waiveragreement. A sample order implementing Fed. R.Evid. 502(d) is provided in Appendix of Forms,Form 14.

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 to acquaint the court with the issuesin the case, to discuss any special problems thatmay exist, and to establish a schedule for furtherproceedings. In the interest of justice and judicialeconomy, a preliminary scheduling conference willnot be held if, in the court’s assessment, furtherdiscussion of the matters presented in the JointPreliminary Status Report would 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,

121 Appendix A

Responses. A party shall number interrogatoriesand requests for admission sequentially withoutrepeating the numbers it has used in any prior setof 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 generallyRCFC 16 and 56. Promptly after the post-discovery conference, the judge shall enter ascheduling order to address further proceedings.For cases that will proceed by summary judgmentin accordance with RCFC 56, the order shallestablish a schedule for the filing of summaryjudgment motions and briefs. For cases to beresolved by trial, the order shall set (1) the timeand place of trial, (2) the time and place of thefinal pretrial conference, and (3) the date by whichthe memoranda and disclosures called for byparagraphs 14–18 are due.

13. Meeting of Counsel. For cases to be

resolved 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-chiefor 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 in

Appendix A 122

the expected testimony. (c) Conference.

(1) Disclose to opposing counselthe 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(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(c).

(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. The

issues 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 madein the Memorandum of Contentions ofFact and Law or in a separate motionfiled on the same date; and

(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 list

123 Appendix A

of 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.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). If the motion is granted,only those identified portions of the transcriptmay 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 importantchanges 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 of

Appendix A 124

testimony 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”).

2011 AmendmentParagraph 5, directing the inclusion in the

Joint Preliminary Status Report of a planaddressing the parties’ anticipated discovery needs,has been expanded to include, at the parties’option, an indication of their intention to seek acourt order pursuant to Fed. R. Evid. 502(d)authorizing discovery to proceed on a voluntarybasis without waiver of any claim of attorney-client privilege or work-product protection. Asample order implementing Fed. R. Evid. 502(d) isprovided in Appendix of Forms, Form 14.

125 Appendix B

APPENDIX BVACCINE RULES OF THE UNITED STATES COURT

OF FEDERAL CLAIMS

TITLE I. S C O P E O F R U L E S ;COMMENCING AN ACTION

Rule 1. Scope of Rules(a) In General. These rules govern all

proceedings before the United States Courtof Federal Claims pursuant to the NationalChildhood Vaccine Injury Act, as amended,42 U.S.C. §§ 300aa-1 to -34 (Vaccine Act),including proceedings before the Office ofSpecial Masters and any subsequentproceedings before a judge of the Court ofFederal Claims.

(b) Matters Not Specifically Addressed by theVaccine Rules. In any matter notspecifically addressed by the Vaccine Rules,the special master or the court may regulatethe applicable practice, consistent with theserules and with the purpose of the VaccineAct, to decide the case promptly andefficiently.

(c) Applying the RCFC. The RCFC apply onlyto the extent they are consistent with theVaccine Rules.

(As revised and reissued May 1, 2002; asamended July 13, 2009.)

Rule 2. Commencing an Action(a) In General. A proceeding for compensation

under the Vaccine Act is commenced byfiling a petition with the United States Courtof Federal Claims. Only one petition may befiled with respect to each administration of avaccine.

(b) Method of Filing; Filing Fee.(1) Paper Form. Petitioner must forward

an original and 2 copies of thepetition, along with the required filingfee, by mail or other delivery, to:

Clerk

United States Court of FederalClaims717 Madison Place, NWWashington, DC 20005.

A copy of the applicable schedule offees may be found on the court’swebsite at www.uscfc.uscourts.gov ormay be obtained by contacting theclerk’s office.

(2) Electronic Copy. If the petitionexceeds 20 pages and petitioner is notappearing pro se pursuant to VaccineRule 14, petitioner must also file onecopy of the petition in electronic formusing a disc in CD-ROM format.

(c) Contents of a Petition. (1) The Petition. The petition must set

forth:(A) a short and plain statement of the

grounds for an award ofcompensation, including:(i) the name of the individual to

whom the vaccine wasadministered;

(ii) the date and place of thevaccination;

(iii) a specific description of theinjury alleged; and

(iv) whether the injury claimed iscontained within the VaccineInjury Table (see “Guidelinesfor Practice Under theNational Vaccine InjuryCompensation Program,”Attachment 8, posted on thec o u r t ’ s w e b s i t e a twww.uscfc.uscourts.gov);and

(B) a specific demand for relief towhich the petitioner assertsentitlement or a statement that



Appendix B 126

such demand will be deferredpursuant to 42 U.S.C. § 300aa-11(e).

(2) Required Attachments. As required by42 U.S.C. § 300aa-11(c), the petitionmust be accompanied by the followingdocuments:(A) Medical Records. The petitioner

must include all available medicalrecords supporting the allegationsin the petition, including physicianand hospital records relating to:(i) the vaccination itself; (ii) the injury or death, including,

if applicable, any autopsyreports or death certificate;

(iii) any po s t -vac c i na t iontreatment of the injuredperson, including all in-patient and out-patientrecords, provider notes, testresults, and medicationrecords; and

(iv) if the injured person wasyounger than five years whenvaccinated, the mother’spregnancy and deliveryrecords and the infant’slifetime records, includingphysicians’ and nurses’notes, test results, and well-baby visit records, as well asgrowth charts, until the dateof vaccination.

(B) Affidavits. (i) If the required medical

records are not submitted, thepetitioner must include anaffidavit detailing the effortsmade to obtain such recordsand the reasons for theirunavailability.

(ii) If petitioner’s claim does notrely on medical records alonebut is also based in any parton the observations or

testimony of any person, thepetitioner should include thesubstance of each person’sproposed testimony in ad e t a i l e d a f f i d a v i t ( s )supporting all elements of theallegations made in thepetition.

(C) Proof of Authority to File in aRepresentative Capacity. If thepetition is filed on behalf of adeceased person or is filed by anindividual other than the injuredperson or the parent of an injuredminor, the petition must also beaccompanied by documentsestablishing the authority to filethe petition in a representativecapacity or a statement explainingwhen such documentation will beavailable.

(d) Format. All documents accompanying thepetition must be assembled into one or morebound volume(s) or three-ring notebook(s).Each bound volume or notebook mustcontain the caption of the case and a table ofcontents, and all pages of each boundvolume or notebook must be numberedconsecutively.

(e) Service. (1) The petitioner must serve one copy of

the petition and accompanyingdocuments on the Secretary of Healthand Human Services, by first class orcertified mail, to:

Director, Division of VaccineInjury Compensation

Healthcare Systems Bureau Parklawn Building, Room 11C-265600 Fishers Lane Rockville, MD 20857.

(2) The clerk must serve one copy of thepetition and accompanying documentson the Attorney General.

(As revised and reissued May 1, 2002; as

127 Appendix B

amended Sept. 15, 2003, Aug. 2, 2005, July 13,2009, July 15, 2011.)

TITLE II. PROCEEDINGS BEFORE THESPECIAL MASTER

Rule 3. Role of the Special Master(a) Case Assignment. After a petition has been

filed with the clerk, the chief special masterwill assign the case to a special master toconduct proceedings in accordance with theVaccine Rules

(b) Duties. The special master is responsiblefor:(1) conducting all proceedings, including

taking such evidence as may beappropriate, making the requisitefindings of fact and conclusions of law,preparing a decision, and determiningthe amount of compensation, if any, tobe awarded; and

(2) endeavoring to make the proceedingsexpeditious, flexible, and lessadversarial, while at the same timeaffording each party a full and fairopportunity to present its case andcreating a record sufficient to allowreview of the special master’s decision.

(c) Absence. In the absence of the assignedspecial master, the chief special master mayact on behalf of the special master ordesignate another special master to act.

(d) Reassignment. When necessary for theefficient administration of justice, the chiefspecial master may reassign the case toanother special master.


Rule 4. Respondent’s Review of Petitioner’sRecords; Early Status Conference;Respondent’s Report

(a) Respondent’s Review of Petitioner’sRecords.

(1) In General. Within 30 days after thefiling of a petition, respondent mustreview the accompanying documents todetermine whether all informationnecessary to enable respondent toevaluate the merits of the claim hasbeen filed.

(2) Missing Documents. If respondentconcludes that relevant documents aremissing, respondent must immediatelynotify petitioner regarding theperceived omission.

(3) Disagreement Between the Parties. Ifthe parties disagree about thecompleteness of the records filed or therelevance of the requested information,either party may request the specialmaster to resolve the matter.

(b) Early Status Conference. The specialmaster may convene an early statusconference within 45 days after the filing ofthe petition to discuss the case.

(c) Respondent’s Report. (1) In General. Within 90 days after the

filing of a petition, or in accordancewith any schedule set by the specialmaster after petitioner has satisfied allrequired documentary submissions,respondent must file a report settingforth a full and complete statement ofits position as to why an award shouldor should not be granted.

(2) Contents. The report must containrespondent’s medical analysis ofpetitioner’s claims and must present anylegal arguments that respondent mayhave in opposition to the petition.General denials are not sufficient.

(As revised and reissued May 1, 2002; asamended Aug. 2, 2005, July 13, 2009.)

Rule 5. Preliminary Status Conference andTentative Findings and Conclusions

(a) In General. The special master will hold astatus conference within 30 days after the

Appendix B 128

filing of respondent’s report under VaccineRule 4(c) to: (1) afford the parties an opportunity to

address each other’s positions; (2) review the materials submitted and

evaluate the parties’ respectivepositions; and

(3) present tentative findings andconclusions.

(b) Scheduling Order. At the conclusion ofthis status conference, the special mastermay issue a scheduling order outlining thenecessary proceedings for resolving theissues presented in the case.

(c) Imposing Fees and Costs.(1) Authority. To ensure effective case

management, the special master isauthorized under RCFC 16(f)(2) toorder a party, its attorney, or both topay the reasonable expenses—includingattorney’s fees—incurred because ofany noncompliance with a schedulingor other pretrial order unless thenoncompliance was substantiallyjustified or other circumstances makean award of expenses unjust.

(2) Contents of the Order. The specialmaster’s order imposing fees and costsmust describe the noncompliance andexplain the basis for the imposition offees and costs.

(3) Review. An order by a special masterimposing fees and costs will bereviewable by an assigned judge onmotion by the noncompliant party or thenoncompliant party’s attorney either:(A) upon the filing of the special

master’s decision; or(B) upon the filing of an order

concluding proceedings.

(As revised and reissued May 1, 2002; asamended July 13, 2009, Jan. 11, 2010.)

Rule 6. Informal Status Conferences(a) In General. To expedite the processing of

the case, the special master will conductinformal status conferences on a periodicbasis.

(b) Input From the Parties. A party may:(1) request a status conference at any time;

and (2) propose procedures to aid in resolving

the case in the least adversarial andmost efficient way possible.


Rule 7. Discovery(a) In General. There is no discovery as a

matter of right. The informal andcooperative exchange of information is theordinary and preferred practice.

(b) Formal Discovery. (1) By Motion. If a party believes that

informal discovery is not sufficient, theparty may move the special master,either orally during a status conferenceor by filing a motion, to employ any ofthe discovery procedures set forth inRCFC 26–37.

(2) Contents of the Motion. The movingparty must indicate the discoverysought and state with particularity thereasons therefor, including anexplanation as to why informaldiscovery techniques have not beensufficient.

(c) Subpoena. On the request of a party, thespecial master may approve the issuance ofa subpoena pursuant to RCFC 45. SeeRCFC Appendix of Forms, Form 7A.


Rule 8. Taking Evidence; Hearing Argument(a) In General. The special master will

determine the format for taking evidence andhearing argument based on the specificcircumstances of each case and after

129 Appendix B

consultation with the parties.(b) Evidence.

(1) Rules. In receiving evidence, thespecial master will not be bound bycommon law or statutory rules ofevidence but must consider all relevantand reliable evidence governed byprinciples of fundamental fairness toboth parties.

(2) Form. The parties may presentevidence in the form of documents,affidavits, or oral testimony which maybe given in person or by telephone,videoconference, or videotape.

(c) Conducting an Evidentiary Hearing. (1) Purpose. The special master may

conduct an evidentiary hearing toprovide for the questioning of witnesseseither by the special master or bycounsel, or for the submission of sworntestimony in written form.

(2) Subpoenas. The special master mayorder the clerk or counsel to issue asubpoena requiring the attendance of awitness at the hearing.

(3) Transcript. A transcript of the hearingwill be prepared in conformity withRCFC 80.1.

(d) Decision Without an Evidentiary Hearing.The special master may decide a case on thebasis of written submissions withoutconducting an evidentiary hearing.Submissions may include a motion forsummary judgment, in which event theprocedures set forth in RCFC 56 will apply.

(e) Hearing Argument. The special mastermay hear argument during a scheduledtelephone conference or a hearing, orthrough written submissions. The specialmaster may establish requirements for anywritten submissions, e.g., contents or pagelimitations, as appropriate.

(f) Waiver of a Fact or Argument. (1) In General. Any fact or argument not

raised specifically in the record beforethe special master will be considered

waived and cannot be raised by eitherparty in proceedings on review of aspecial master’s decision.

(2) Exception. This rule does not apply tolegal arguments raised by the party thatstands in the role of the appellee onreview.


Rule 9. Suspending Proceedings(a) In General. On motion of a party and for

good cause shown, the special master maysuspend proceedings on a petition.

(b) Period of Suspension. (1) Initial Motion. The special master will

grant an initial motion for suspension,filed by either party, for a period of 30days.

(2) Subsequent Motions. The specialmaster may grant subsequent motionsfor suspension, if deemed appropriate,for not more than 150 additional days intotal.

(c) Effect. All periods of suspension will beexcluded for purposes of the time limitationsset forth in 42 U.S.C. § 300aa-12(d)(3)(A)and Vaccine Rules 4(c) and 10.

(As revised and reissued May 1, 2002; asamended June 20, 2006, July 13, 2009.)

Rule 10. Decision of the Special Master(a) In General. Pursuant to 42 U.S.C. § 300aa-

12(d)(3)(A), the special master will issue adecision on the petition with respect towhether an award of compensation is to bemade and, if so, the amount thereof.

(b) Timing. The special master must issue adecision on the petition within 240 days afterthe date the petition was filed, exclusive ofall periods of suspension pursuant toVaccine Rule 9.

(c) Effect. The special master’s decisionconcludes the proceedings on the petition,

Appendix B 130

except for any ancillary proceedingspursuant to Vaccine Rules 12(b) or 13.

(d) Failing to Issue a Timely Decision. (1) Notice to Petitioner. If the special

master fails to issue a decision withinthe time specified in Vaccine Rule10(b), the special master must file anotice to petitioner pursuant to 42U.S.C. § 300aa-12(g)(1).

(2) Notice to Continue or to Withdraw thePetition. Within 30 days after the dateof filing of the special master’s notice,the petitioner may file a notice tocontinue or to withdraw the petitionpursuant to 42 U.S.C. § 300aa-21(b).

(3) Concluding Proceedings. If thepetitioner elects to withdraw thepetition, the special master must issuean order concluding proceedings. Thespecial master’s order, upon entry, willbe deemed a judgment for purposes of42 U.S.C. § 300aa-15(e)(1).

(e) Motion for Reconsideration. (1) Initial Motion. Either party may file a

motion for reconsideration of thespecial master’s decision within 21 daysafter the issuance of the decision, if ajudgment has not been entered and nomotion for review under VaccineRule 23 has been filed.

(2) Response. The special master may seeka response from the nonmoving party,specifying both the method of and thetiming for the response.

(3) Ruling on the Motion. The specialmaster has the discretion to grant ordeny the motion, in the interest ofjustice. (A) If Granted. If the special master

g r a n t s t h e m o t i o n f o rreconsideration, the special mastermust file an order withdrawing thechallenged decision. Thedecision, once withdrawn,becomes void for all purposes andthe special master must

subsequently enter a supersedingdecision. The special master maynot, however:(i) issue an order withdrawing a

decision if either a judgmenthas been entered or a motionfor review has been filed; or

(ii) issue a superseding decisionreaching a result differentfrom the original decisionwithout affording then o n mo ving p a r t y a nopportunity to respond to themoving party’s arguments.

(B) If Denied or Not Acted Upon. Thef i l ing of a mot ion forreconsideration will not toll the30-day period for filing a motionfor review pursuant to VaccineRule 23. If the special masterd e n i e s t h e mo t i o n f o rreconsideration or fails to act uponthe motion, the 30-day period forfiling a motion for review willcontinue to run and either partymay file a motion for reviewbefore the expiration of thatperiod.


TITLE III. JUDGMENT AND FURTHERPROCEEDINGS

Rule 11. Judgment(a) In General. In the absence of a motion for

review under Vaccine Rule 23, the clerk willenter judgment 30 days after either the filingof the special master’s decision underVaccine Rule 10 or the entry of an order ofdismissal under Vaccine Rule 21(b). Theclerk may enter judgment prior to theexpiration of the 30-day period if each partyfiles a notice stating that the party will notseek such review.

131 Appendix B

(b) Stipulation for Judgment. Any stipulationfor a money judgment must be signed byauthorized representatives of the Secretary ofHealth and Human Services and the AttorneyGeneral.


Rule 12. Election(a) In General. Within 90 days after the entry

of judgment under Vaccine Rule 11,petitioner must file with the clerk an electioneither:(1) to accept the judgment; or (2) to file a civil action for damages for the

alleged injury or death. (b) Failure to File an Election. If petitioner

fails to file an election within the timeprescribed, petitioner will be deemed to havefiled an election to accept the judgment.

(c) Moving for Limited Compensation. (1) In General. If petitioner does not elect

to receive an award of compensation,the election to file a civil action fordamages may be accompanied by amotion for the limited compensationprovided by 42 U.S.C. § 300aa-15(f)(2).

(2) Decision on the Motion. The clerk willforward the motion to the specialmaster for a decision thereon. Thedecision of the special master on themotion constitutes a separate decisionfor purposes of Vaccine Rules 11, 18,and 23.

(3) Waiver. If such a motion is not filed atthe time the election is filed, petitionerwill be deemed to have waived thelimited compensation.


Rule 13. Attorney’s Fees and Costs(a) In General. Any request for attorney’s fees

and costs pursuant to 42 U.S.C. § 300aa-

15(e) must be filed no later than 180 daysafter the entry of judgment or the filing of anorder concluding proceedings under VaccineRule 10(d)(3) or 29.

(b) Decision on the Motion. Except for arequest for fees and costs arising underVaccine Rule 34(b), the clerk will forwardthe fee request to the special master for adecision thereon. The decision of the specialmaster on the fee request—including arequest for interim fees—constitutes aseparate decision for purposes of VaccineRules 11, 18, and 23.


TITLE IV. GENERAL PROVISIONS

Rule 14. Attorneys(a) Eligibility to Practice.

(1) In General. An attorney is eligible topractice before the Office of SpecialMasters if the attorney is a member ofthe bar of the United States Court ofFederal Claims under RCFC 83.1 andcomplies with the Vaccine Rules.

(2) Pro Se Litigants. An individual who isnot an attorney may represent oneself ora member of one’s immediate family.The terms counsel, attorney, or attorneyof record in the Vaccine Rules includesuch individuals appearing pro se.

(b) Attorney of Record. (1) In General. A party may have only one

attorney of record in a case at any onetime and, with the exception of a pro selitigant appearing under Vaccine Rule14(a), must be represented by anattorney (not a firm) admitted topractice before the Court of FederalClaims. Any attorney assisting theattorney of record must be designated“of counsel.”

(2) Contact Information. The attorney of

Appendix B 132

record must include on all filings theattorney’s name, address, telephonenumber, and facsimile number and mustpromptly file with the clerk and serveon all other parties a notice of anychange in the attorney’s contactinformation.

(3) Signing Filings. All filings must besigned in the attorney of record’s name.Any attorney who is admitted topractice before the Court of FederalClaims may sign a filing in the attorneyof record’s name by adding thefollowing after the name of the attorneyof record: “by [the signing attorney’sfull name].”

(c) Substituting Counsel. A party maysubstitute its attorney of record pursuant toRCFC 83.1(c)(4).


Rule 15. Third PartiesNo person may intervene in a vaccine injurycompensation proceeding, but the special mastermay afford all interested individuals anopportunity to submit relevant written informationwithin 60 days after publication of notice of thepetition in the Federal Register, or later with leaveof the special master.


Rule 16. Caption of Filings(a) In General. All filings, including the

petition, must be captioned with the court’sname, the case title and docket number, andthe name of the assigned special master.(The petition should leave blank the spacesfor the special master’s name and the docketnumber.) See Appendix of Forms, Form 7.

(b) Petitions Filed on Behalf of a Minor. Ifthe petition is filed on behalf of a minor, thecaption may include only the minor’s

initials.

(As revised and reissued May 1, 2002; asamended July 13, 2009, July 15, 2011.)

Rule 17. Serving and Filing Papers After thePetition

(a) Serving a Document. (1) In General. A copy of every document

filed with the clerk must be served onopposing counsel or the opposingunrepresented party.

(2) Certificate of Service. A certificate ofservice in accordance with RCFC 5.3must be appended to the originaldocument and any copies thereof.

(b) Filing a Document. (1) In General. All pleadings and other

papers required under the VaccineRules or by order of the special masteror the court must be brought to theattention of the special master or thecourt through formal filings with thec l e r k r a t h e r t h a n t h r o u g hcorrespondence.

(2) How Filing Is Made—In General. Apaper is filed by delivering it to theclerk at the address provided in VaccineRule 2.

(3) Electronic Filing. The court requiresfiling by electronic means, subject toreasonable exceptions, as provided inthe Supplement to these rules. A paperfiled electronically in compliance withthe Supplement to the Vaccine Rules isa written paper for purposes of theserules.

(4) Filing Defined. (A) Paper Form. A document in

paper form is filed when it isreceived and marked filed by theclerk, not when mailed.

(B) Electronic Form. A document inelectronic form is filed on the datestated in the “Notice of ElectronicFiling.”

133 Appendix B

(c) Date. Each filing must bear on the signaturepage the date on which it is signed.

(d) Number of Copies. Except in an electroniccase under the Supplement to these rules, aparty must file an original and 2 copies ofeach paper filed with the clerk, although fora filing of 50 pages or more, an original and1 copy will suffice.

(As revised and reissued May 1, 2002; asamended July 13, 2009, July 15, 2011.)

Rule 18. Availability of Filings(a) In General. All filings with the clerk

pursuant to the Vaccine Rules are to be madeavailable only to the special master, thejudge, and the parties, with the exception ofcertain court-produced documents as setforth in subdivision (b) of this rule. Atranscript prepared pursuant to Vaccine Rule8(c) constitutes a filing for purposes of thisrule.

(b) Decision of the Special Master or Judge.A decision of the special master or judgewill be held for 14 days to afford each partyan opportunity to object to the publicdisclosure of any information furnished bythat party:(1) that is a trade secret or commercial or

financial in substance and is privilegedor confidential; or

(2) that includes medical files or similarfiles, the disclosure of which wouldconstitute a clearly unwarrantedinvasion of privacy.

An objecting party must provide the courtwith a proposed redacted version of thedecision. In the absence of an objection, theentire decision will be made public.


Rule 19. Computing and Extending Time(a) Computing Time. The following criteria

apply in computing any time period specified

in these rules, in an order of the specialmaster or the court, or in any applicablestatute that does not specify a method ofcomputing time. (1) Period Stated in Days or a Longer

Unit. When the period is stated in daysor a longer unit of time:(A) exclude the day of the event that

triggers the period;(B) count every day, including

intermediate Saturdays, Sundays,and legal holidays (for legalholidays, see RCFC 6(a)(6)); and

(C) include the last day of the period,but if the last day is a Saturday,Sunday, or legal holiday, theperiod continues to run until theend of the next day that is not aSaturday, Sunday, or legalholiday.

(2) Period Stated in Hours. When theperiod is stated in hours:(A) begin counting immediately on the

occurrence of the event thattriggers the period;

(B) count every hour, including hoursduring intermediate Saturdays,Sundays, and legal holidays; and

(C) if the period would end on aSaturday, Sunday, or legalholiday, the period continues torun until the same time on the nextday that is not a Saturday, Sunday,or legal holiday.

(3) Inaccessibility of the Clerk’s Office.Unless the court orders otherwise, if theclerk’s office is inaccessible: (A) on the last day for filing under

Vaccine Rule 19(a)(1), then thetime for filing is extended to thefirst accessible day that is not aSaturday, Sunday, or legalholiday; or

(B) during the last hour for filingunder Vaccine Rule 19(a)(2), thenthe time for filing is extended to

Appendix B 134

the same time on the firstaccessible day that is not aSaturday, Sunday, or legalholiday.

(4) “Last Day” Defined. Unless a differenttime is set by a statute or court order,the last day ends:(A) for electronic filing, at midnight in

the Eastern Time Zone; and(B) for filing by other means, when

the clerk’s office is scheduled toclose, subject to the provision forafter-hours filing permitted underRCFC 77.1(a).

(5) “Next Day” Defined. The “next day”is determined by continuing to countforward when the period is measuredafter an event and backward whenmeasured before an event.

(b) Extending Time. (1) In General. The special master or the

court may grant a motion for anenlargement of time for good causeshown except when such an extensionis prohibited by these rules.

(2) Contents of a Motion for Enlargement.A motion for an enlargement of timemust set forth: (A) the specific number of additional

days requested;(B) the date to which the enlargement

is to run;(C) the total number of days granted in

any previously filed motions forenlargement; and

(D) the reason for the enlargement. (3) Communication With Opposing

Counsel. Prior to filing a motion forenlargement, the moving party mustmake a reasonable effort to discuss themotion with opposing counsel and mustindicate in the motion whether anopposition will be filed, or, if opposingcounsel cannot be consulted, anexplanation of the efforts that weremade to do so.

(c) Additional Time After Service By Mail.When a party may or must act within aspecified time after service and service ismade by mail, 3 days are added to theprescribed period, unless the special masteror the court orders otherwise.

(As revised and reissued May 1, 2002; asamended Jan. 11, 2010.)

Rule 20. Motions and Other Papers; Time forFiling; Oral Argument

(a) In General. All motions must:(1) state with particularity the grounds for

the motion;(2) set forth the relief or order sought; and(3) be in writing and filed with the clerk,

unless made orally during a hearing.Any motion may be accompanied by aproposed order and any motion, objection, orresponse may be accompanied by amemorandum and, if necessary, bysupporting affidavits or exhibits.

(b) Time for Filing. (1) Responses and Objections. Unless

otherwise provided in these rules or byorder of the special master or the court,a response or an objection to a writtenmotion must be filed within 14 daysafter service of the motion.

(2) Replies. A reply to a response or anobjection may be filed within 7 daysafter service of the response orobjection.

(c) Oral Argument. A party desiring oralargument on a motion must so request in themotion or response.


Rule 21. Dismissal of Petitions(a) Voluntary Dismissal.

(1) In General. Petitioner may dismiss thepetition without order of the specialmaster or the court by filing:

135 Appendix B

(A) a notice of dismissal at any timebefore service of respondent’sreport; or

(B) a stipulation of dismissal signedby all parties who have appearedin the action.

(2) Effect. Unless the notice or stipulationstates otherwise, the dismissal iswithout prejudice, except that a noticeof dismissal may, in the discretion ofthe special master or the court, bedeemed to operate as an adjudication onthe merits if filed by a petitioner whohas previously dismissed the sameclaim.

(3) Concluding Proceedings. A petitiondismissed under this subdivision (a)will not result in a judgment pursuant toVaccine Rule 11 for purposes of42 U.S.C. § 300aa-21(a). For thecourt’s administrative purposes, thespecial master will instead issue anorder concluding proceedings.

(b) Involuntary Dismissal. (1) In General. The special master or the

court may dismiss a petition or anyclaim therein for failure of thepetitioner to prosecute or comply withthese rules or any order of the specialmaster or the court.

(2) Effect. A petition dismissed under thissubdivision (b) will result in a judgmentpursuant to Vaccine Rule 11 forpurposes of 42 U.S.C. § 300aa-21(a).

(As revised and reissued May 1, 2002; asamended Aug. 2, 2005, June 20, 2006, July 13,2009.)

TITLE V. REVIEW OF A DECISION OFTHE SPECIAL MASTER

Rule 22. General [Abrogated (eff. Jan. 2, 2001);abrogation published as part ofrevisions dated May 1, 2002.]

Rule 23. Motion for Review(a) In General. To obtain review of the special

master’s decision, a party must file a motionfor review with the clerk within 30 days afterthe date the decision is filed.

(b) Time Extensions. No extensions of timewill be permitted under this rule and thefailure of a party to file a motion for reviewin a timely manner will constitute a waiverof the right to obtain review.


Rule 24. Memorandum of Objections(a) In General. A motion for review must be

accompanied by a memorandum ofnumbered objections to the decision.

(b) Contents of the Memorandum. Thememorandum must:(1) fully and specifically state and support

each objection to the decision,including specific citations to the recordcreated by the special master (e.g., tospecific page numbers of the transcript,exhibits, or other papers);

(2) set forth any legal argument the partydesires to present to the reviewingjudge; and

(3) absent leave of the court, be limited to20 pages and conform to the provisionsof RCFC 5.4.


Rule 25. Response(a) In General. A party may file a response to

a motion for review within 30 days after thefiling of the motion. If both parties filemotions for review, each party may file aresponse to the other party’s motion. Theresponse must:(1) be in memorandum form and fully

respond to each numbered objection,including specific citations to the record

Appendix B 136

created by the special master (e.g., tospecific page numbers of the transcript,exhibits, or other papers);

(2) set forth any legal argument the partydesires to present to the reviewingjudge; and

(3) absent leave of the court, be limited to20 pages and conform to the provisionsof RCFC 5.4.

(b) Time Extensions. No extensions of timewill be permitted under this rule and thefailure of a party to file a response in atimely manner will constitute a waiver of theright to respond.


Rule 26. Assigning a Case for ReviewAfter a motion for review has been filed with theclerk, the case will be assigned to a judge of theCourt of Federal Claims pursuant to RCFC 40.1.


Rule 27. Reviewing a Decision of the SpecialMaster

After reviewing a decision of the special master,the assigned judge may: (a) uphold the findings of fact and conclusions

of law and sustain the special master’sdecision;

(b) set aside any findings of fact or conclusionsof law found to be arbitrary, capricious, anabuse of discretion, or otherwise not inaccordance with law and issue a separatedecision; or

(c) remand the case to the special master forfurther action as directed.


Rule 28. Time for Review(a) In General. The assigned judge must

complete the review within 120 days afterthe last date for the filing of a response underVaccine Rule 25, excluding any days thecase is before a special master on remand.

(b) Period of Remand. If the judge remandsthe case to the special master, the totalperiod of remand must not exceed 90 days.


Rule 28.1 Decision on Remand(a) In General. If the assigned judge remands

the case to the special master, the specialmaster, after completing the remandassignment, must file a decision on remandresolving the case, unless the remand orderdirects otherwise. The clerk must promptlynotify the assigned judge of the filing of thedecision on remand.

(b) Effect. Unless otherwise specified in theremand order, the decision on remandconstitutes a separate decision for purposesof Vaccine Rules 11, 18, and 23, i.e.,judgment automatically will be entered inconformance with the special master’sdecision on remand unless a new motion forreview is filed pursuant to Vaccine Rule 23.

(c) Motion for Review. If a party seeks reviewof the decision on remand, the clerk willassign the case to the same judge whoremanded the case.


Rule 29. Withdrawing a Petition(a) Notice to Petitioner. If the assigned judge

fails to enter judgment within 420 days afterthe date the petition was filed, exclusive ofany periods of remand or suspensionpursuant to Vaccine Rule 9, the judge mustfile a notice to petitioner pursuant to42 U.S.C. § 300aa-12(g)(2).

(b) Notice to Continue or to Withdraw thePetition. Within 30 days after the date of

137 Appendix B

filing of the assigned judge’s notice, thepetitioner may file a notice to continue or towithdraw the petition pursuant to 42 U.S.C.§ 300aa-21(b).

(c) Concluding Proceedings. If the petitionerelects to withdraw the petition, the assignedjudge must issue an order concludingproceedings. The judge’s order, upon entry,will be deemed a judgment for purposes of42 U.S.C. § 300aa-15(e)(1).


Rule 30. Judgment(a) In General. Upon issuance of the assigned

judge’s decision on review, the clerk willenter judgment in accordance with thedecision.

(b) Stipulation for Judgment. Any stipulationfor a money judgment must be signed byauthorized representatives of the Secretary ofHealth and Human Services and the AttorneyGeneral.


Rule 31. Motion for ReconsiderationWithin 30 days after entry of judgment, eitherparty may file a motion for reconsideration of theassigned judge’s decision in accordance withRCFC 59.

(As revised and reissued May 1, 2002; asamended Jan. 11, 2010.)

Rule 32. Notice of AppealTo appeal a decision of the Court of FederalClaims, a party must file a notice of appeal withthe clerk of the United States Court of Appeals forthe Federal Circuit (i.e., a petition for reviewunder 42 U.S.C. § 300aa-12(f)) within 60 daysafter the date of the entry of judgment.


Rule 33. Election(a) In General. Within 90 days after the entry

of judgment under Vaccine Rule 30,petitioner must file with the clerk an electionas described in Vaccine Rule 12.

(b) Exception. If an appeal is filed with theUnited States Court of Appeals for theFederal Circuit pursuant to Vaccine Rule 32,the 90-day period for filing an election willrun not from the original date of judgmentbut from the date of the appellate court’smandate or any subsequent judgment of theCourt of Federal Claims on remand,whichever occurs later.


Rule 34. Attorney’s Fees and Costs FollowingReview

(a) In General. Except as provided insubdivision (b) of this rule, any request forattorney’s fees and costs following review byan assigned judge must be filed inaccordance with Vaccine Rule 13.

(b) Additional Fees and Costs. Followingreview by an assigned judge of a specialmaster’s decision on attorney’s fees andcosts under Vaccine Rule 13, a request forany additional fees and costs relating to suchreview may be decided either by the assignedjudge or by the special master on remand.

(As revised and reissued May 1, 2002; asamended July 13, 2009. )

Rule 35. Availability of Filings [Abrogated(eff. Jan. 2, 2001); abrogationpublished as part of revisions datedMay 1, 2002.]

TITLE VI. RELIEF FROM JUDGMENT

Rule 36. Relief from a Judgment(a) In General. If, after the entry of judgment

Appendix B 138

or the issuance of an order concludingproceedings pursuant to Vaccine Rule 10,21, or 29, a party files a motion forreconsideration pursuant to RCFC 59 orotherwise seeks relief from a judgment ororder pursuant to RCFC 60, the clerk willrefer the motion as follows: (1) If the petition had previously been

assigned to a judge for review pursuantto Vaccine Rule 23, the clerk will referthe motion to the assigned judge.

(2) If the petition had not previously beenassigned to a judge for review pursuantto Vaccine Rule 23, the clerk will referthe motion to the assigned specialmaster.

(b) Ruling by the Special Master. (1) In General. If a motion pursuant to

RCFC 59 or 60 is referred to the specialmaster pursuant to subdivision (a) ofthis rule, the special master must file awritten ruling on the motion.

(2) Effect. The ruling of the special masterwill be the final ruling of the court onthe motion, unless a party files with theclerk a motion for review of that ruling.

(3) Motion for Review. A party may file amotion for review of the specialmaster’s ruling, accompanied by amemorandum of objections to theruling, within 30 days after the date ofthe ruling. See Vaccine Rules 23 and24.

(4) Response. The nonmoving party mayfile a response to a motion for reviewwithin 30 days after the filing of themotion. See Vaccine Rule 25.

(5) Length. The motion and response ofeach party must, absent leave of thecourt, be limited to 20 pages and mustconform to the provisions of RCFC 5.4.See Vaccine Rules 24 and 25.

(6) Assigning the Case for Review. If amotion for review is filed with theclerk, the case will be assigned to ajudge of the Court of Federal Claims

pursuant to RCFC 40.1. See VaccineRule 26.

(7) Reviewing the Ruling of the SpecialMaster. After reviewing the ruling ofthe special master, the assigned judgemay set aside the ruling only if it isfound to be arbitrary, capricious, anabuse of discretion, or otherwise not inaccordance with law. See Vaccine Rule27.

(c) If Judgment is Altered. If the originaljudgment is modified pursuant to RCFC 59or 60 or otherwise, and the petitioner is toreceive any award for damages calculatedwith respect to the date of judgment, suchdamages must be calculated based on thedate of the original judgment, unless theruling of the special master or the courtdirects 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 VaccineInjury Compensation, Office of Special Programs,Health Resources and Services Administration, inlieu of the Director, Bureau of HealthProfessionals.

2005 AmendmentBoth stylistic and substantive changes have

139 Appendix B

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 feeamount has been eliminated in favor of referringpetitioners to the fee schedule posted on thecourt’s website. This change is administrativeonly and is intended to permit future changes infee amount to be implemented without thenecessity for publication of a correspondingchange in rule. Subdivision (c)(1) has beenamended to show the current address for serviceupon 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 identificationand scheduling of further proceedings.

Rule 10. The text of subdivision (a) hasbeen amended to identify the alternativeprocedures a petitioner may elect toadopt—withdrawal of the petition or continuanceof proceedings—following the special master’sissuance of a notice under 42 U.S.C. § 300aa-12(g)(1) advising that a decision on the petitionwill not be entered within the prescribed statutoryperiod (240 days, exclusive of periods ofsuspension and remand). Subdivision (a) furtherprovides that in instances where the petitionerelects 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 entryof the 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 mastershall not issue a superseding decision reaching adifferent result from the original decision without

affording 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 towithdraw a petition following the issuance of anorder concluding proceedings under Vaccine Rule10(a) or 29.

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).A special 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 judgmentwill be 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 sentencehas been added to clarify that where a petitionerelects to withdraw a petition following the receiptof the notice required by 42 U.S.C. § 300aa-12(g)(2), the conclusion of proceedings will beidentified by the judge’s issuance of an orderrather than by a judgment. The same sentence

Appendix B 140

further notes that upon entry, such order shall bedeemed a judgment for 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(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)is also reflected in corresponding changes to thetext of Vaccine Rules 11(a) and 12(a).

2009 AmendmentThe language of the Vaccine Rules has been

amended to conform to the general restyling of theRCFC.

Rule 13. Subdivision (b) has been modifiedin two respects. First, the introductory phrase“Except for a request for fees and costs arisingunder Vaccine Rule 34(b)” was added to reflectthe corresponding procedural change in VaccineRule 34(b) regarding a request for additional feesand costs. Second, the phrase “including a requestfor interim fees” was added to the second sentenceto reflect the result in Avera v. Secretary of Healthand Human Services, 515 F.3d 1343 (Fed. Cir.2008).

Rule 17. Paragraph (b)(2) (“FilingDefined”) has been expanded to include electronicfilings.

Rule 34. Subdivision (b) has been added tothis rule to clarify that a request for additionalattorney’s fees and costs incurred on a petition forreview of a special master’s decision addressingattorney’s fees and costs may be decided either bythe assigned judge or by the special master onremand.

Rule 36. The phrase “or the issuance of anorder concluding proceedings pursuant to VaccineRule 20, 21, or 29" has been added to the openingsentence of subdivision (a) to extend the remediesavailable under RCFC 59 (“New Trial;Reconsideration; Altering or Amending aJudgment”) and RCFC 60 (“Relief From aJudgment or Order”) to cases concluded by meansother than a judgment.

2010 AmendmentRule 5. Subdivision (c) (“Imposing Fees and

Costs”) has been added to reinforce the specialmaster’s case management authority. The rulepermits a special master to order, as authorized byRCFC 16(f)(2), the payment of “reasonableexpenses—including attorney’s fees—incurredbecause of any noncompliance with a schedulingor any other pretrial order.” The exercise of thisauthority is subject to the requirement that theorder describe the noncompliant conduct andexplain the basis for the imposition of fees andcosts.

Rule 19. Subdivision (a) (“ComputingTime”) has been amended in accordance with thecorresponding changes to RCFC 6.

Rule 31. The time period for filing a motionfor reconsideration has been changed from 10 to30 days in accordance with the correspondingchange to RCFC 59.

2011 AmendmentRule 2. Subdivision (b) has been amended

to adopt the revised filing requirements ofRCFC 5.5(d)(1) specifying that a plaintiff mustfile 2 copies of the complaint and, except aplaintiff appearing pro se, an additional copy ofthe complaint in electronic form using a disc inCD-ROM format when the complaint exceeds 20pages.

Rule 16. Subdivision (b) has been added toprovide privacy protection in the caption of allpetitions filed on behalf of a minor, consistentwith the requirement of RCFC 5.2(a).

Rule 17. Subdivision (b) (“Filing aDocument”) has been amended to reflect the

141 Appendix B

court’s requirement of filing by electronic meansin Vaccine Act cases, subject to reasonableexceptions.

Supplement to Appendix B 142

SUPPLEMENT TO APPENDIX BELECTRONIC CASE FILING PROCEDURE

IN VACCINE ACT CASES

I. INTRODUCTION1. In General. This Supplement sets forth theprocedures governing electronic filings in VaccineAct cases. A Case Management/Electronic CaseFiles (CM/ECF) User Manual is available on thecourt’s website—http://www.uscfc.uscourts.gov. 2. Definitions. For purposes of this Supplement,the following definitions apply:

(a) “ECF System” means the court’ssystem for electronic case filing;

(b) “ECF case” means any Vaccine Actcase designated 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 orspecial master.

II. ELECTRONIC CASE DESIGNATION AND NOTICE

3. Scope.(a) Newly Filed Cases. All newly filed

Vaccine Act cases will be designatedECF cases except for cases involvingpro se litigants.

(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 Vaccine Act case has beendesignated an ECF case by filing a “Notice ofDesignation.” All ECF cases will be listed on thecourt’s website.

III. ACCESS TO ECF SYSTEM; RESPONSIBILITY OF FILING USERS;

EXEMPTION FROM USE5. 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. (i) The Petition. The filing of a

Vaccine Act petition, limited tothe requirements of VaccineRule 2(c)(1), and the payment ofthe initial filing fee must beaccomplished in the traditional

143 Supplement to Appendix B

manner in accordance withVaccine Rule 2(b) rather thanelectronically. No medicalrecords or other documents maybe filed with the petition.

(ii) Required Attachments. Oncea case has been designated anECF case, the petitioner mustelectronically file as promptlyas possible the medical recordsand other documents (includingaffidavits) pertaining to thepetition as set forth in VaccineRule 2(c)(2). (See paragraph 11of this Supplement, discussingthe alternative method of filingvoluminous medical records viaCD-ROM.)

(b) Subsequent Filings. Once a casehas been designated an ECF case, allsubsequent filings must be madeelectronically, except as provided inthis Supplement or by leave of thecourt in exceptional circumstancesthat prevent a Filing User from filingelectronically.

(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 the exhibit orattachment in its entirety; and

(iii) may seek leave to file amemorandum or brief, generallyin advance of the evidentiaryhearing, to direct the court’sattention to the most relevantportion of the exhibit orattachment.

9. Size Limitations. (a) In General. A single filing may be

divided into multiple Adobe PDF

files. (b) Number of Files. Counsel must

endeavor to minimize the totalnumber of Adobe PDF files thatconstitute a single filing.

(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 may:(i) use a disc in CD-ROM format;

or(ii) seek leave of the court to file in

some other electronic format. 10. Dividing Medical Records into MultiplePDF Files.

(a) Contents and Pagination of Files.Each file should contain one exhibitand each exhibit should beindependently paginated (hand-written pagination prior to scanningis sufficient).

(b) Labeling and Identifying Files.Each file should: (i) be consecutively numbered or

lettered as an exhibit; (ii) be labeled according to its

source or subject matter; and (iii) include a brief written

description of the records itcontains.

For example, the first PDF file mightcontain prenatal records and belabeled “Petitioner’s Exhibit1—Prenatal Records, Dr. Smith”; thesecond PDF file might contain birthrecords and be labeled “Petitioner’sExhibit 2—Birth Records, Smalltown


Hospital”; the third and fourth PDFfiles might contain pediatric recordsof different physicians and be labeled“Petitioner’s Exhibit 3—PediatricRecords, Dr. John” and “Petitioner’sExhibit 4—Pediatric Records,Dr. Jack.”

11. CD-ROM Filings. (a) In General. Filing documents on a

CD-ROM is accomplished by:(i) electronically filing a “Notice of

Intent to File” containing:(A) an index of the exhibits

included on the disc;(B) a statement certifying that

the contents of the dischave been scanned usinganti-virus software withup-to-date anti-virusdefinitions; and

(C) a certificate stating whencopies of the disc weremailed or delivered to theclerk’s office;

(ii) providing the clerk’s office withtwo copies of the disc alongwith a printed copy of the“Notice of Intent to File”; and

(iii) serving one copy of the disc onopposing counsel.

(b) Date of Filing. The CD-ROM isdeemed filed on the date it isreceived in the clerk’s office.

(c) Striking a Notice of Intent to File.If the CD-ROM is not received in theclerk’s office within 5 days after the“Notice of Intent to File” iselectronically docketed, the courtmay enter an order striking the“Notice of Intent to File” from thedocket.

(d) Designation of Files. The name ofeach file on the disc should:(i) begin with the letters “Ex”

followed by the exhibit letter ornumber (e.g., 01, 02, . . . 09,

10); (ii) include a brief description of the

content of the exhibit and thesix-digit docket number (e.g.,98-0000);

(iii) represent spaces with anunderscore; and

(iv) contain “.pdf” as the fileextension.

For example, the first PDF file on thed i s c m i g h t b e l a b e l e d“EX01_University_Hospital_98-0000.pdf.”

(e) Format. Before filing a CD-ROM,the Filing User should :(i) “close” or finalize the disc so

that additional material cannotbe written onto the disc; and

(ii) scan the disc using appropriateanti-virus software after itscreation and closure.

(f) Packaging and Labeling. TheFiling User should package the discin a paper, plastic, or waxed paperenvelope and label the package with:(i) the case caption, including the

case number;(ii) the date of filing; and(iii) the range of exhibits the disc

contains (e.g., Exhibits 01-20).

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,

145 Supplement to Appendix B

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 5.3.

13. Effect of Filing and Transmission of Noticeof Filing. A filing by a party under thisSupplement, 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 boundby the document as filed. 15. Date of Filing. Except for CD-ROM filingsand in the case of a document first filed in paperform and subsequently converted to an ECF filing,a document 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 thisSupplement must be submitted before midnightlocal time in Washington, DC, to be consideredtimely filed on that 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. 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/[name of Filing User]” typed inthe space where the signature wouldotherwise 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 thisSupplement. 22. Effect of Filing. A filing by the court underthis Supplement:

(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 or


opinion 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 (i.e., a petition for review under 42 U.S.C.§ 300aa-12(f)) must be accomplished in thetraditional manner in accordance with the VaccineRules rather than electronically.

VIII. PRIVACY26. Filings Protected Against Public Disclosure.Except as provided in Vaccine Rule 18, all ECFfilings submitted in a Vaccine Act case are placedunder seal pursuant to the requirement of42 U.S.C. § 300aa-12(d)(4)(A) and therefore areaccessible only to court personnel and counsel ofrecord. 27. Personal Information. Because all ECFfilings submitted by the parties in a Vaccine Actcase are placed under seal, Filing Users need notredact personal identifiers and other sensitiveinformation. Filing Users should file alldocuments, including medical records, in theiroriginal form.

IX. RETENTION ANDTECHNICAL FAILURE

28. 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.29. 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 Office

Inaccessible. If the ECF System isinaccessible for any significantperiod of time, the clerk will deemthe clerk’s office inaccessible underRCFC 6.


The Supplement to the Vaccine Rulesreplaces former Office of Special Master’s GeneralOrder No. 13 (“Procedure for Electronic CaseFiling in Vaccine Act Cases”), issued on January2, 2008, and amended on October 16, 2008, andestablishes electronic case filing as a mandatoryprocedure applicable to all newly filed VaccineAct cases except for those cases involving pro selitigants.

147 Appendix C

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 a

protest. Plaintiff is encouraged to provide earliernotice if possible as a courtesy to the court and togovernment counsel.

3. The pre-filing notice must include: (a) a statement consistent with the

disclosure requirements called for inRCFC 7.1(a); and

(b) the following additional information:(1) the name of the procuring

agency and the number of the solicitationin the contested procurement;

(2) the name and telephone numberof the contracting officer responsible forthe procurement;

(3) the name and telephone numberof the principal agency attorney, ifknown, who represented the agency inany prior protest of the sameprocurement;

(4) whether plaintiff contemplatesrequesting temporary or preliminaryinjunctive relief pursuant to RCFC 65;

(5) whether plaintiff has discussedthe need for temporary or preliminaryinjunctive relief with Department ofJustice counsel and the response, if any;

(6) whether the action was precededby the filing of a protest before theGovernment Accountability Office(GAO) and if so, the “B-” number of theprotest and whether a decision wasissued; and

(7) whether plaintiff contemplatesthe need for the court to enter aprotective 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 from

Appendix C 148

public 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 RCFC5.5(d).

6. A complaint or any related material filedtogether 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 soon

as 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, unlessthe 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.

149 Appendix C

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 forpreliminary injunction;

(d) whether the government will agree towithhold 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 protected

information 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 atAppendix 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 an

Appendix C 150

application, 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 protestcase 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 of

the solicitation;(h) the agency’s estimates of the cost of

performance;(i) correspondence between the agency

and 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 responsesto 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.

151 Appendix C

23. Because a protest case cannot beefficiently 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 5.5(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 practicebefore 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 unsealing

are 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 otherprovisions 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.

2011 AmendmentThe information that is to be provided as part

of the pre-filing notice required under paragraph 3

Appendix C 152

has been expanded to include the disclosurestatement regarding corporate relationships thatmust be filed pursuant to RCFC 7.1.

153 Appendix D

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 5.5(d)(1), 8,and 9.

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 may

be necessary or proper for the efficientperformance of their duties, including the power ofsubpoena and the power to administer oaths andaffirmations. 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 presiding

Appendix D 154

officer 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 thehearing 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 14 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 14days 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 good

standing 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.


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.

2010 Amendment The time periods of 10 days formerly set forth

in paragraph 9 have been changed to 14 days inaccordance with the FRCP’s general guidelines fortime computation that became effectiveDecember 1, 2009.


155 Appendix E

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. Forprocedures governing electronic filings in VaccineAct cases, see Appendix B to these rules (“VaccineRules of the United States Court of FederalClaims”), Supplement (“Electronic Case FilingProcedure in Vaccine Act Cases”). 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 notify

counsel 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 USE5. 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 the

Appendix E 156

traditional 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.

(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 the

court. (ii) Current size limitations are

posted 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. Unlessotherwise 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 5.5(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 Users

157 Appendix E

by 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 5.3.

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 boundby 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/[name of Filing User]” typed in

the space where the signature wouldotherwise 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 of

Appendix E 158

RCFC 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 ina Filing. In compliance with the E-Government Act of 2002, FilingUsers should not include personalinformation in any ECF filing unlesssuch inclusion is necessary andrelevant 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 must

be 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 suchinformation 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 is

159 Appendix E

deemed 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 GeneralOrders, which can be found on the court’s website.

Former Appendix E (“Procedure in CarrierCases”) has been redesignated in these rules asAppendix I.

2011 AmendmentParagraph 1 has been amended to include

a cross reference to the separate proceduresgoverning electronic filings in Vaccine Act casesset forth in the Supplement to Appendix B(“Vaccine Rules of the United States Court ofFederal Claims”).

http://pacer.psc.uscourts.gov

Appendix F 160

APPENDIX FPROCEDURE IN TAX PARTNERSHIP CASES

Rule 1. General(a) Applicability. This Appendix sets forth

the special provisions that apply to actions forreadjustment of partnership items under Section6226 of the Internal Revenue Code (Code) andactions for adjustment of partnership items underCode Section 6228. Except as otherwise providedin this Appendix, the RCFC, to the extentpertinent, are applicable to such partnershipactions.

(b) Definitions. As used in this Appendix,(1) the term “partnership” means a

partnership as defined in Code Section6231(a)(1);

(2) a “partnership action” is either an“action for readjustment of partnershipitems” under Code Section 6226 or an actionfor “adjustment with respect to partnershipitems” under Code Section 6228;

(3) the term “partnership item” meansany item described in Code Section6231(a)(3);

(4) the term “tax matters partner” meansthe person who is the tax matters partnerunder Code Section 6231(a)(7) or appointedtax matters partner by the court under Rule 9of this Appendix, and who under thisAppendix is responsible for keeping eachpartner fully informed of the partnershipaction (see Code Sections 6223(g) and6230(f));

(5) a “notice of final partnershipadministrative adjustment” is the noticedescribed in Code Section 6223(a)(2);

(6) the term “administrative adjustmentrequest” means a request for anadministrative adjustment of partnershipitems filed by the tax matters partner onbehalf of the partnership under Code Section6227(c);

(7) the term “partner” means a personwho was a partner as defined in CodeSection 6231(a)(2) at any time during any

partnership taxable year at issue in apartnership action;

(8) the term “notice partner” means aperson who is a notice partner under CodeSection 6231(a)(8);

(9) the term “5-percent group” means a5-percent group as defined in Code Section6231(a)(11);

(10) the term “deposit” means thedeposit required by Code Section 6226(e)(1);and

(11) the term “Notice of Assignment”means the notice mailed to the parties by theclerk of the court after the filing of acomplaint that advises the parties of thename of the judge to whom the proceeding isassigned.(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 of InternalRevenue (Commissioner) has issued anot ice o f f i na l pa r t ne rshipadministrative adjustment (see CodeSections 6226(a), (b)).

(B) A complaint for readjustmentof partnership items is filed with thecourt by the tax matters partner withinthe period specified in Code Section6226(a), or by a notice partner (or 5percent group) subject to the conditionsand within the period specified in CodeSection 6226(b).

(C) The partner or partners filingthe complaint make a deposit asrequired by Code Section 6226(e).(2) Actions for Adjustment of

Partnership Items. (A) The Commissioner has not

allowed all or some of the adjustments

161 Appendix F

requested in an administrativeadjustment request (see Code Section6228(a)).

(B) A complaint for adjustment ofpartnership items is filed with the courtby the tax matters partner subject to theconditions and within the periodspecified in Code Sections 6228(a)(2)and (3).

(d) Form and Style of Papers. All papersfiled in a partnership action shall be prepared inthe form and style set forth in RCFC 5.5 and l0,except that the caption shall state the name of thepartnership and the full name and surname of anypartner filing the complaint and shall indicatewhether such partner is the tax matters partner, asfor example, “ABC Partnership, Mary Doe, TaxMatters Partner, Complainant” or “ABCPartnership, Richard Roe, A Partner Other Thanthe 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 5.5 and 10,relating to form of pleadings; and RCFC 5.5(d)(1),relating to number of copies to be filed.

(b) Contents of Complaint. Each complaintshall be titled either “Complaint for Readjustmentof Partnership Items under Code Section 6226” or“Complaint for Adjustment of Partnership Itemsunder Code Section 6228.” Each such complaintshall contain the information described insubdivision (c) below and the allegationsdescribed in subdivision (d) or (e) below.

(c) All Complaints. All complaints inpartnership actions shall contain:

(1) the name and address of thecomplainant;

(2) the name, employeridentification number, and principalplace of business of the partnership andof each partner filing the complaint atthe time the complaint is filed; and

(3) the city and state of the office

of the Internal Revenue Service withwhich the partnership’s return for theperiod in 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 complaints forreadjustment of partnership items shallcontain:

(A) the date of the notice of finalpartnership administrative adjustmentand the city and state of the office of theInternal Revenue Service that issued thenotice;

(B) the year or years or otherperiods for which the notice of finalpartnership administrative adjustmentwas issued;

(C) clear and concise statements ofeach and every error that thecomplainant alleges to have beencommitted by the Commissioner in thenot i ce o f f i na l pa r tne rshipadministrative adjustment. Theassignments of error shall includeissues, if any, in respect to which theburden of proof is on the United States.Any issues not raised in the assignmentsof error, or in the assignments of errorin any amendment to the complaint,shall be deemed to be conceded. Eachassignment of error shall be set forth ina separately lettered subdivision;

(D) clear and concise letteredstatements of the facts on which thecomplainant bases the assignments oferror, except with respect to thoseassignments of error, if any, as to whichthe burden of proof is on the UnitedStates;

Appendix F 162

(E) the amount of the deposit madeby each partner filing the complaint;

(F) the date and place of themaking of each deposit;

(G) a prayer setting forth reliefsought by the complainant;

(H) the signature, mailing address,and telephone number of eachcomplainant or of each complainant’scounsel (see RCFC 83.1 regardingattorneys of record); and

(I) a copy of the notice of finalpartnership administrative adjustment,which shall be appended to thecomplaint and with which there shall beincluded so much of any statementaccompanying the notice as is materialto the issues raised by the assignmentsof error. If the notice of finalpartnership administrative adjustment orany accompanying s ta tementincorporates by reference any priornotices, or other material furnished bythe Internal Revenue Service, such partsthereof as are material to theassignments of error likewise shall beappended to the complaint.(2) Complaints by Tax Matters Partner.

In addition to including the informationspecified in paragraph (1) of this subdivision,a complaint filed by the tax matters partnerduring the time period specified in CodeSection 6226(b) shall also contain a separatenumbered paragraph stating that thecomplainant is the tax matters partner.

(3) Complaints by Other Partners. Inaddition to including the informationspecified in paragraph (1) of this subdivision,a complaint filed by a notice partner or by a5-percent group during the time periodspecified in Code Section 6226(b) shall alsocontain:

(A) a separate numbered paragraphstating that the complainant is a noticepartner or a representative of a 5-percent group (see Code Section

6226(b)(1));(B) a separate numbered paragraph

setting forth facts establishing that thecomplainant satisfies the requirementsof Code Section 6226(d);

(C) a separate numbered paragraphstating the name and current address ofthe tax matters partner; and

(D) a separate numbered paragraphstating that the tax matters partner hasnot filed a complaint for readjustmentof partnership 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 complainant isthe tax matters partner;

(2) the date that the administrativeadjustment request was filed and any otherproper allegations showing jurisdiction in thecourt in accordance with the requirements ofCode Sections 6228(a)(1) and (2);

(3) the year or years or other periods towhich the administrative adjustment relates;

(4) the city and state of the office of theInternal Revenue Service with which theadministrative adjustment request was filed;

(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 shallbe set forth in a separately letteredparagraph;

(6) clear and concise lettered statementsof the facts on which the complainant relies

163 Appendix F

in support of such requested changes intreatment of partnership items;(7) a prayer setting forth relief sought by

the complainant;(8) the signature, mailing address, and

telephone number of the complainant or thecomplainant's counsel (see RCFC 83.1regarding 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 7 days after receiving theNotice of Assignment from the clerk, the taxmatters partner shall serve notice of the filingof the complaint on each partner in thepartnership as required by Code Section6223(g). Said notice shall include the docketnumber assigned to the case by the court andthe date of the Notice of Assignment.

(2) Complaints by Other Partners.Within 7 days after receiving the Notice ofAssignment from the clerk, the complainantshall serve a copy of the complaint on the taxmatters partner and at the same time notifythe tax matters partner of the docket numberassigned to the case by the court and of thedate of the Notice of Assignment. Within 7days after receiving a copy of the complaintand of the aforementioned notification fromthe complainant, the tax matters partner shallserve notice of the filing of the complaint oneach partner 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 the Noticeof Assignment.(g) A Copy of the Complaint to Be

Provided to All Partners. Upon request by anypartner in the partnership as referred to in CodeSection 6231(a)(2)(A), the tax matters partnershall, within 14 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 to eachnotice of final partnership administrativeadjustment or each administrative adjustmentrequest issued to separate partnerships.However, a single complaint forreadjustment of partnership items orcomplaint for adjustment of partnershipitems may be filed seeking readjustments oradjustments of partnership items with respectto more than one final partnershipadministrative adjustment or administrativeadjustment request if the notices or requestspertain to the same partnership. A complaintmay include a request that the proceeding beassigned to the judge to whom one or morepending cases (whether relating to the samepartnership or to another partnership) areassigned, if the other case or cases presentcommon or related issues of law or fact. Forthe procedures to be followed by partnerswho wish to intervene or participate in apartnership proceeding, see Rule 4 below.

(2) Severance or Other Orders. Withrespect to a case based upon multiple noticesof final partnership administrativeadjustment or administrative adjustmentrequests, the court may order a severance anda separate case to be maintained with respectto one or more of such notices or requestswhenever it appears to the court thatproceeding separately is in furtherance ofconvenience, or will avoid prejudice, orwhen separate trials will be conducive toexpedition or economy.

Rule 3. Other Pleadings(a) Answer. The United States shall file an

answer or shall move with respect to thecomplaint 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

Appendix F 164

(a) Tax Matters Partner. The tax matterspartner 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 partner whosatisfies 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 court maygrant leave to file a notice of election to interveneor a notice of election to participate out of timeupon 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. A partyother than the complainant who is authorized toraise issues not raised in the complaint may do soby filing an amendment to the complaint. Such anamendment may be filed, without leave of court,at any time before service of the response to thecomplaint by the United States. Otherwise, suchan amendment may be filed only by leave ofcourt. See RCFC 15(a) for the timing for filingresponses to amendments to the complaint.

Rule 5. Service of Papers(a) Complaints. All complaints shall be

served by the clerk on the United States.(b) Papers Issued by the Court. All papers

issued by the court shall be served by the clerk onthe United States, the tax matters partner (whetheror not the tax matters partner is a participatingpartner), and all other participating partners.

(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 partnerconstitutes a certificate by the tax matters partnerthat no party objects to entry of the decision. See

165 Appendix F

Rule 10 below.(b) Settlement Agreements Entered Into

by All Participating Partners or No Objectionby Participating Partners.

(1) After expiration of the time withinwhich to file a notice of election to interveneor to participate under Rule 4(a) or (b)above, the United States shall move for entryof decision and shall submit a proposed formof decision with such motion, if

(A) all of the participating partnershave entered into a settlementagreement with defendant, or all of suchpartners do not object to the granting ofdefendant's motion for entry of decision,and

(B) the tax matters partner (if aparticipating partner) agrees to theproposed decision in the case but doesnot certify that no party objects to thegranting of defendant's motion for entryof 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 the court.

(3) Within 3 days after receivingdefendant's certificate, the tax matters partnershall serve on all other parties to the action,other than the participating partners, copiesof defendant's motion for entry of decision,the proposed decision, and defendant’scertificate showing the date on whichdefendant’s motion was filed with the court,as well as a copy of this paragraph of Rule 7.

(4) If any party objects to the grantingof the defendant’s motion for entry ofdecision, then that party shall, within 60 daysafter the date on which defendant’s motionwas filed with the court, file a motion forleave to file a notice of election to interveneor to participate, accompanied by a separatenotice of election to intervene or toparticipate, as the case may be. If no such

motion 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 participating partner,defendant shall promptly file with the courta notice of settlement agreement thatidentifies the participating partner or partnerswho have entered into the settlementagreement; and

(2) in the case of any partner who entersinto a settlement agreement, defendant shall,within 7 days after the settlement agreementis executed by both the partner anddefendant, serve on the tax matters partner astatement which sets forth:

(A) the identity of the party orparties to the settlement agreement andthe date of the agreement;

(B) the year or years to which thesettlement agreement relates; and

(C) the terms of settlement as toeach partnership item and the allocationof such items among the partners. Within 7 days after receiving the

statement required by this subdivision, thetax matters partner shall serve a copy of thestatement on all parties to the action.

Rule 8. Action for Adjustment of PartnershipItems Treated as Action for Readjustment ofPartnership Items

(a) Amendment of Complaint. If, after thefiling of a complaint for adjustment of partnershipitems (see Code Section 6228(a) and Rule 2(a)above), but before hearing of such complaint, theCommissioner mails to the tax matters partner anotice of final partnership administrativeadjustment for the partnership taxable year towhich the complaint relates, such complaint shallbe treated as a complaint in an action for

Appendix F 166

readjustment of the partnership items to whichsuch notice relates. The complainant, within 90days after the date on which the notice of finalpartnership administrative adjustment is mailed tothe tax matters partner, shall file an amendment tothe complaint, setting forth every error thecomplainant alleges to have been committed bythe Commissioner in the notice of finalpartnership administrative adjustment, and thefacts 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 has fileda timely notice of election to participate in theaction for adjustment of partnership items shall bedeemed to have elected to participate in the actionfor readjustment of partnership items and need notfile another notice of election to do so. Any otherpartner may participate in the action by filing anotice of election to participate within 45 daysafter the date of filing of the amendment tocomplaint. See Rule 4 above.

Rule 9. Appointment and Removal of TaxMatters Partner

(a) Appointment of Tax Matters Partner.If, at the time of commencement of a partnershipaction by a partner other than the tax matterspartner, the tax matters partner is not identified inthe complaint, the court will take such action asmay be necessary to establish the identity of thetax matters partner or to effect the appointment ofa 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 matterspartner. If the tax matters partner is removed bythe court, or if a partner’s status as tax matters

partner 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 of theInternal 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.

2010 AmendmentThe time periods of 5 and 10 days formerly

set forth in Rule 2 have been changed to 7 and 14days, respectively, in accordance with the FRCP’sgeneral guidelines for time computation thatbecame effective December 1, 2009.

167 Appendix G

APPENDIX GPROCEDURE IN INDIAN CLAIMS COMMISSION CASES

[Abrogated, effective November 15, 2007.]


Appendix G formerly appeared in these rulesas 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 and expenses incases transferred to the former United StatesCourt 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.

Appendix H 168

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 permits theparties to engage in a frank, in-depthdiscussion of the strengths and weaknesses ofeach party's case before a judicial officerwithout the inhibitions that might exist beforethe assigned judge. A settlement judge mayact both as a mediator and as a neutralevaluator. This process should be employedearly enough in the litigation to avoidneedless expense and delay. Use of asettlement judge permits the parties to gainthe benefit of a judicial perspective withoutjeopardizing their ability to gain a resolutionof their case 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 as neutralevaluators and mediators. Parties may selecta third-party neutral who is not on the court'slist.

(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 process involves

one or more sessions in which counsel,litigants, and the mediator participate and maycontinue over a period of time. The mediatorcan help the parties improve communication,clarify interests, and probe the strengths andweaknesses of their own and their opponents’positions. The mediator can also identifyareas of agreement and help generate optionsthat lead to settlement.

(e) Early Neutral Evaluation. Usingthe services of a third-party neutral or asettlement judge knowledgeable in the subjectmatter of the litigation to assess the strengthsand weaknesses of the parties’ positions. Inthis manner, the parties may gain a morerealistic view of their prospects for success,thus narrowing the issues and facilitatingsettlement.

(f) Mini-Trials. A flexible, abbreviatedprocedure in which the parties present theircase, or a portion of it, to a third-party neutralor a settlement judge. 3. Procedures. RCFC 16 and Appendix A,

paragraphs 3(f) 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’s good-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 assigned judge,the assigned judge, if in agreement, willforward the request to the clerk of the courtfor assignment to a settlement judge or athird-party neutral as selected by the parties.

(c) In the event the parties agree to use

169 Appendix H

ADR, the settlement judge or third-partyneutral and the parties will developprocedures appropriate to that case. Thesettlement judge or third-party neutral and theparties will develop a written statement, to beexecuted by the settlement judge or neutral,outlining the terms of the settlement process,including an indication of assent toconfidentiality by all parties. Neither thisstatement nor any other materials developedfor use solely within the ADR process will befiled with the court.

(d) There will be no transcript of anyADR proceeding. All ADR proceedings,including documents generated solely for theproceedings and communications within thescope of the proceedings, are confidential andwill not be provided to a judge of the courtwho is not the settlement judge in the dispute.Information that is otherwise discoverable oradmissible does not lose that characteristicmerely because of its use in the ADRproceedings.

(e) Participation in ADR constitutesagreement by the parties not to subpoena orseek in any way the testimony of thesettlement judge in any subsequentproceeding.

(f) During the ADR process, the matterwill remain on the docket of the assignedjudge. At the conclusion of the ADR process,the settlement judge or the third-party neutralwill notify the assigned judge and the clerk ofthe court only of the outcome, i.e., whetherthe matter has been settled.


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.

Appendix I 170

APPENDIX IPROCEDURE IN CARRIER CASES

Rule 1. Carrier’s Request for Admission ofFacts

(a) Time for Filing Request. In every suitfiled by a carrier for the recovery of freight and/orpassenger transportation charges, the carrier shall,at the time the complaint is filed or within 30 daysthereafter, 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, maybe typewritten, printed, or otherwisemechanically reproduced from a typewrittenoriginal, provided that all copies filed with theclerk are legible and the words and figuresshown therein are large enough type to beread without difficulty.

(2) Copies; Filing; Service. If therequest accompanies the complaint, copiesand service of such request shall be asprovided in RCFC 4(a) and 5.5(d). If therequest is filed subsequent to the filing of thecomplaint, copies and service of such requestshall be as provided in RCFC 5, except that 5copies shall be served on the defendant in lieuof one copy.

(3) Signature of Attorney. The requestshall be signed by the attorney of record forplaintiff.

(4) Numbered Paragraphs; MaterialFacts. The statements contained in therequest shall be properly separated andnumbered 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 be attached

to the request copies of any contracts, letters,or other documents, excluding tariffs andother documents referred to in the schedulesrequired by subdivisions 7 and 8, below, thatplaintiff proposes to offer into evidence, inorder that the genuineness of such documentsmay be admitted by defendant without havingto call a witness to identify the same.

(6) Nature of Dispute; Statement ofIssues. The statement in the request shall besufficiently explicit to show the nature of thedispute and the specific reason or reasons whyplaintiff believes it is entitled to recoverhigher rates or charges than those allowed bythe government. The word “dispute” as usedin the preceding sentence, means the shipmentor shipments with respect to which theGeneral Services Administration (GSA) oranother agency of the government determinedthat the carrier's charges had been overpaid orrefused to pay the carrier's supplemental billscovering such shipments, rather thansubsequent shipments which are not indispute except for the fact that theoverpayments determined as to the shipmentsin dispute have been deducted from theamount of the carrier's bills covering suchsubsequent shipments. In order to show thenature of the dispute, there shall be attachedto or included in plaintiff's request a statementof the issues which, with respect to eachgroup of the carrier's bills involving the sameissue, shall consist of a brief narrativestatement of such issue with a reference to(A) court decisions involving the same issue,or (B) the tariffs, contract terms, or otherauthority relied upon by plaintiff, and thetariffs or other authority that plaintiff believesdefendant relied upon in making deductionsfor claimed overpayments to the carrier or inrefusing to pay the carrier's supplemental billsfor claimed undercharges.

(7) Schedule; Claim for Transportationof Property. Where the claim is for the

171 Appendix I

recovery of charges for the transportation ofproperty for the government, there shall beattached to the request a detailed schedule,prepared by or under the supervision of thegeneral auditor, comptroller, or otherprincipal accounting officer of the carrier.The schedule 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 from whichGSA made a deduction following itsdetermination of an overpayment on thebill in dispute.

(B) Detail for Each Bill of Lading.For each bill of lading in dispute,covered by each bill referred to inparagraph (A), above, the followingfacts:

(i) the number and symbol ofeach bill of lading;

(ii) the date of the shipment;(iii) the origin and the

destination of the shipment;(iv) a description of the

commodity or commoditiesshipped, including a description ofthe packing where this affects therate;

(v) the car number and initial;(vi) the weight of the

shipment, including the minimumcarload weight when greater thanthe actual weight;

(vii) when the shipment indispute consists of one or morecarloads of mixed commodities, adescription of the differentcommodities and the respectiveweights thereof loaded in each car,including minimum carload weightswhere such weights affect the rates;

(viii) the rates claimed for eacharticle in the shipment and for any

accessorial services;(ix) the total freight charges on

each bill of lading;(x) the amounts refunded by

the carrier, if any, and the datesthereof;

(xi) if the overpaymentdetermined by GSA or other agencyhas been deducted from the carrier'ssubsequent bill or bills, the numberof such subsequent bill or bills, theamount deducted, and the datethereof;

(xii) the total amount paid tothe carrier;

(xiii) the balance due;(xiv) a specific reference to the

item or items in designated tariffsauthorizing the charges claimed,including the classification rating, ifnecessary, and authorization for anyaccessorial charges claimed; or aspecific reference to a governmentrate quotation;

(xv) the government filereference number as obtained fromthe GSA notice of overcharge, theCertificate of Indebtedness, or anyother document issued by GSA, or,in the event there is no GSAreference number, the name of thegovernment paying agency andbureau, the disbursing officevoucher number, and the date ofpayment;

(xvi) if the shipment in disputeconsists in whole or in part of athrough transit movement, (a) thethrough assessable charges from theoriginal point of shipment to thefinal destination, including adescription of the commodity, thetransited weight, the through rate,the tariff or special authority for thethrough rate used, and, if localtonnage is involved, the weight

Appendix I 172

thereof, the points between whichlocal tonnage moved, and the ratesand charges assessed against suchtonnage, (b) details of the netamounts paid to and beyond thetransit station, including referencesto the “inbound” and “outbound”shipments by bill of lading numberand symbol, (c) the date ofshipment, origin and destination,weight rate, and the net amountspaid to the respective “inbound”and “outbound” carriers, namingthem and identifying the billnumbers on which such paymentswere made, and (d) the balance due,i.e., the difference between thethrough assessable charges,including the charges on localtonnage, if any, and the respectivenet amounts paid on the inboundand outbound shipments; and

(xvii) a brief statement as tothe basis for the claim or other briefstatement that the carrier deemsnecessary to expla in thepeculiarities of the shipment(C) Computation for Typical Bill

of Lading. Following the listing of theinformation required above with respectto each group of a carrier's billsinvolving the same issue or basis offreight charge computation, the carriershall either (i) include in the schedule acomputation of the freight charges forthat bill of lading, setting forth the basisor formula used and referring to thespecific items in particular tariffs orother authority upon which it relied forthat purpose, or (ii) attach a worksheetshowing such computation andinformation with respect to each typicalbill of lading.(8) Certification and Signature of

Carrier; Property. The schedule shall becertified by the general auditor, comptroller,or principal accounting officer of the carrier,

as follows:(Name)(Title)(Name of Carrier)

I do hereby certify that the above andforegoing schedule has been prepared fromthe books and records of said company for usein a suit in the United States Court of FederalClaims, entitled _________ v. United States,No. ____, and that to the best of myknowledge, information, and belief thematters contained 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 for Transportationof Passengers. Where the claim is for therecovery of charges for the transportation ofpassengers for account of the government,there shall be attached to the request aschedule, prepared by or under thesupervision of the general auditor,comptroller, or other principal accountingofficer of the carrier, containing the followingfactual information:

(A) List of Carrier’s Bills inDispute. The number of each of thecarrier’s bills in dispute, as distinguishedfrom the number of a subsequent billfrom which GSA made a deductionfollowing its determination of anoverpayment on the bill in dispute.

(B) Detail for Each TransportationRequest or Warrant. For eachtransportation request or warrant indispute, covered by each bill referred toin paragraph (A), above, the followingfacts:

(i) the symbol and number ofeach transportation request orwarrant in dispute;

(ii) the date of service;(iii) the origin and destination

of the travel;(iv) the class or type of

173 Appendix I

service;(v) whether the travel was one

way or round trip;(vi) the number of the special

movement, if any;(vii) the route of travel;(viii) the number of persons

that traveled;(ix) the gross per capita fare;(x) the assessable passenger

charges;(xi) the amount paid, and by

which government office and thelocation of that office;

(xii) the amounts, if any,refunded by the carrier, the dates ofsuch refund, and the governmentoffice to which the refund wasmade and the location of that office;

(xiii) where an overpaymentwas determined by the governmentand deducted from the carrier'ssubsequent bill, the number of suchsubsequent bill, the amount of thededuction, and the date thereof;

(xiv) the total amount paid andby which government office and thelocation of that office;

(xv) the balance due;(xvi) the tariff reference and

item or special rate authority;(xvii) the government file

reference; and(xviii) a brief statement as to

the basis for the claim, including,where appropriate, a briefexplanation showing the extent towhich the ticket issued by thecarrier was not used and the valueof the unused part of the ticket.

(10) Certification and Signature ofCarrier; Passengers. The schedule coveringthe transportation of passengers shall becertified in the same manner as provided inRule 1(b)(8), above, except that where arequest includes schedules pertaining to

claims for the transportation of bothpassengers and freight, one certification shallsuffice for all schedules.( c ) Ca r r i e r ’ s N o n c o m p l i a n c e ;

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(a) Time for Filing; Order. Promptly after

the filing of plaintiff’s request, the judge to whomthe case is assigned shall, by order filed with theclerk, fix a reasonable time within which defendantshall file its response to the request. A copy ofsuch order shall be served on the parties asprovided in RCFC 5.

(b) Copies; Service; Signature. Defendant’sresponse shall consist of an original and two copiesto be filed with the clerk and with service to bemade on plaintiff as provided in RCFC 5. Theresponse shall be signed by defendant's attorney ofrecord and shall comply with the terms of Rule1(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 billsinvolving the same issue, shall consist of a briefnarrative statement of the issue, as defendantcontends, with reference to (1) a court decisioninvolving the same issue, or (2) the tariffs or otherauthority relied upon by defendant.

Appendix I 174

(e) Verification of Carrier’s Computations.If defendant finds that the schedule attached toplaintiff's request, or any portion thereof affectingthe amount claimed, is incorrect on the basis of thetariffs, government rate quotations, or otherauthority relied on by plaintiff in its request, thereshall be attached to the response a scheduleprepared by defendant, setting forth the facts andfigures as to the amount of freight chargesdefendant asserts would be due on each carrier’sbill if the court holds that the tariffs or otherauthorities relied on by plaintiff in its request areapplicable, and showing how defendant arrived atany changes or corrections in the amounts claimedby plaintiff.

(f) Schedule; Defendant’s Basis forApplicable 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 Available toDefendant; Consequences. Where the request setsforth any facts that are within the knowledge ofGSA or of the department or agency of defendantfor which the transportation was performed andthese facts specifically include but are not limitedto the facts and figures that plaintiff, by this order,

is directed to include in its schedules, a responsestating that defendant cannot truthfully admit ordeny such facts, or a denial based on a lack ofknowledge by defendant’s attorney of record, shallbe deemed an admission thereof, provided thatsuch a response shall not be deemed an admissionif accompanied by the sworn statement of theofficial in charge of the records that a search hasbeen made for the necessary documents orinformation and that the documents or informationcannot be found.

(i) Relation to Pleadings; Time for FilingAnswer or Counterclaim. In all cases to whichthis 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 thejudge 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. Ifa plaintiff is willing to accept the amount shown tobe 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 favor

175 Appendix I

of plaintiff in full settlement and satisfaction of allclaims asserted in the complaint and request foradmission of facts.

(b) Pretrial Conference; Fixing Amountof Recovery. When plaintiff does not file anacceptance of the amount shown to be due in theresponse, a pretrial conference shall be held for thepurpose of (1) resolving all issues and recording anagreement for the entry of judgment or fordismissal of the complaint or any part thereof, or(2) segregating the carrier's bills in dispute fromthose not in controversy and fixing the amount thateither party would be entitled to recover in theevent of a decision in its favor, and/or (3) takingany other action that may aid in the promptdisposition of the suit.

(c) Entry of Judgment. Where all materialissues are disposed of through the filing byplaintiff of its acceptance of the amount shown tobe 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 Surface TransportationBoard. In any suit subject to the terms of thisAppendix, if defendant contends, whether on thebasis of the freight charge computations used byplaintiff or on the basis of the freight chargecomputations used by defendant, that any of thecarrier's bills listed in the request raise issueswithin the primary jurisdiction of the SurfaceTransportation Board, and if defendant intends tomove the court to refer such issues to that agency,defendant shall file its motion with the clerk at thetime fixed for the filing of its response under thisorder. The motion shall contain:

(1) an identification of the carrier’s billsinvolved unless all the bills in suit areincluded in the motion;

(2) a description of the commoditiesshipped and a statement respecting any otherfactors that are pertinent to the issues covered

by the motion; (3) a reference to the applicable tariffs

and a copy of the pertinent provisions thereof;(4) a precise statement of the issue or

issues to be referred; and (5) a statement as to whether the Surface

Transportation Board has construed the citedtariffs in prior decisions or has clarified thefacts underlying 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 hasclarified 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 therequirements of Rule 4(b), above.

(e) Effect of Filing a Referral Motion. Thetrial 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 I 176


Appendix E formerly appeared in these rulesas Appendix C. Additionally, substantive changeshave been made.

First, the word “common” has been strickenfrom the term “common carrier.” The term“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.

177

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 certificate issued within the last 30 days by the clerk of the highest court of any U.S. state,territory, or possession, or the District of Columbia, attesting to your admission to the bar of that courtand your good standing therein (Note: a letter from the bar of your 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 $250.00to cover the required fee.

Applications (including letters and fee) must be complete when submitted; incomplete applications willbe returned.

Admission under this procedure does not require your appearance in person. A certificate will beforwarded to you upon the granting of your application.

178

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 United StatesCourt of Federal Claims in accordance with the laws and rules applicable thereto.

I, ____________________________________________________________ DO SOLEMNLY SWEAR(OR AFFIRM) THAT I WILL SUPPORT THE CONSTITUTION OF THE UNITED STATES AND THAT IWILL 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.

179

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 the attached sheet. If number 213 is used, please identify partnership or partnership group. 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.

180

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

213 Tax - Income, Individual (Partnership)

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

513 Taking - Rails to Trails

514 Taking - Other

515 Unjust Conviction and Imprisonment

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

449 Injury - Hepatitis A

453 Injury - Pneumococcal Conjugate

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

452 Death - Hepatitis A

454 Death - Pneumococcal Conjugate

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

181

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

HHS Health and Human Services

HLS Homeland Security

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

182

FORM 3AREPORTER FORM

Caption Page

[Withdrawn (eff. Nov. 3, 2008).]

183

FORM 3BCERTIFICATE OF REPORTER

(Reporter-Recorded Proceeding)

DOCKET NO.: _____________________________________

CASE TITLE: _____________________________________

HEARING DATE: _____________________________________

LOCATION: _____________________________________

I hereby certify that the proceedings and evidence are contained fully and accurately on the tapes and

notes reported by me at the hearing in the above case before the United States Court of Federal Claims

Date: _____________________________

Signature: _____________________________

Official ReporterAddress: _____________________________

_____________________________

_____________________________

184

FORM 3CCERTIFICATE OF REPORTER

(Court-Recorded Proceeding)

DOCKET NO.: _____________________________________

CASE TITLE: _____________________________________

HEARING DATE: _____________________________________

LOCATION: _____________________________________

I hereby certify that the foregoing is a true and correct transcript made to the best of our ability froma copy of the official electronic digital recording provided by the United States Court of Federal Claims inthe above-captioned matter.

Date: _____________________________

Signature: _____________________________

Address: _____________________________

_____________________________

_____________________________

185

FORM 4BILL OF COSTS

In The United States Court of Federal Claims

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)

186

FORM 5EQUAL ACCESS TO JUSTICE ACT 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

187

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)

188

FORM 6ASUBPOENA TO APPEAR AND TESTIFY AT A HEARING OR TRIAL


vs. No.

THE UNITED STATES

SUBPOENA TO APPEAR AND TESTIFYAT A HEARING OR TRIAL

To:

YOU ARE COMMANDED to appear at the time, date, and place set forth below to testify at a hearing or trial in the above-captioned

case. When you arrive, you must remain at the court until the judge or a court officer allows you to leave. If you are an organization that

is not a party in this case, you must designate one or more officers, directors, or managing agents, or designate other persons who consent

to testify on your behalf about the following matters, or those set forth in an attachment:

Place: Courtroom No.:

Date and Time:

You must also bring with you the following documents, electronically stored information, or objects (blank if not applicable):

The provisions of RCFC 45(c), relating to your protection as a person subject to a subpoena, and RCFC 45(d) and (e), relating to your

duty to respond to this subpoena and the potential consequences of not doing so, are attached.

Date:

CLERK OF COURT

OR

Signature of Clerk or Deputy Clerk Attorney’s signature

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 place of the hearing or trial is more than 100 miles from the place where the person served resides, is employed, or transacts

business in person, the person served may regard the command as optional unless there is attached to the subpoena an order of the court

requiring his/her appearance notwithstanding the distance of 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)

The name, address, e-mail, and telephone number of the attorney representing (name of party)

, who issues or requests this subpoena, are:

189

PROOF OF SERVICE

This subpoena for (name of individual and title, if any)

was received by me on (date) .

� I personally served the subpoena on the individual at (place)

on (date) ; or

� I left the subpoena at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date) , and mailed a copy to the individual’s last known address; or

� I served the subpoena on (name of individual) who is designated by law to accept

service of process on behalf of (name of organization)

on (date) ; or

� I returned the subpoena unexecuted because ; or

� Other (specify):

Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also tendered to the witness

fees for one day’s attendance, and the mileage allowed by law, in the amount of $ .

My fees are $ for travel and $ for services, for a total of $ .

I declare under penalty of perjury that this information is true.

Date:

Server’s signature

Printed name and title

Server’s address

Additional information regarding service, etc:

RCFC 45.(c) Protecting a Person Subject to a Subpoena.

(1) Avoiding Undue Burden or Expense; Sanctions. A party orattorney responsible for issuing and serving a subpoena musttake reasonable steps to avoid imposing undue burden orexpense on a person subject to the subpoena. The court mustenforce this duty and impose an appropriate sanction—whichmay include lost earnings and reasonable attorney’s fees—on aparty or attorney who fails to comply.

(2) Command to Produce Materials or Permit Inspection.(A) Appearance Not Required. A person commanded to

produce documents, electronically stored information, ortangible things, or to permit the inspection of premises,need not appear in person at the place of production orinspection unless also commanded to appear for adeposition, hearing, or trial.

(B) Objections. A person commanded to produce documentsor tangible things or to permit inspection may serve on theparty or attorney designated in the subpoena a writtenobjection to inspecting, copying, testing or sampling anyor all of the materials or to inspecting the premises—or toproducing electronically stored information in the form orforms requested. The objection must be served before theearlier of the time specified for compliance or 14 daysafter the subpoena is served. If an objection is made, thefollowing rules apply:(i) At any time, on notice to the commanded person,

the serving party may move the court for an ordercompelling production or inspection.

(ii) These acts may be required only as directed in theorder, and the order must protect a person who is

190

neither a party nor a party’s officer from significantexpense resulting from compliance.

(3) Quashing or Modifying a Subpoena.(A) When Required. On timely motion, the court must quash

or modify a subpoena that:(i) fails to allow a reasonable time to comply;(ii) requires a person who is neither a party nor a party’s

officer to travel more than 100 miles from wherethat person resides, is employed, or regularlytransacts business in person—except that, subject toRCFC 45(c)(3)(B)(iii), the person may becommanded to attend a trial by traveling from anysuch place;

(iii) requires disclosure of privileged or other protectedmatter, if no exception of waiver applies; or

(iv) subjects a person to undue burden. (B) When Permitted. To protect a person subject to or

affected by a subpoena, the court may, on motion, quashor modify the subpoena if it requires:(i) disclosing a trade secret or other confidential

research, development, or commercial information;(ii) disclosing an unretained expert’s opinion or

information that does not describe specificoccurrences in dispute and results from the expert’sstudy that was not requested by a party; or

(iii) a person who is neither a party nor a party’s officerto incur substantial expense to travel more than 100miles to attend trial.

(C) Specifying Conditions as an Alternative. In thecircumstances described in RCFC 45(c)(3)(B), the courtmay, instead of quashing or modifying a subpoena, orderappearance or production under specified conditions if theserving party:(i) shows a substantial need for the testimony or

material that cannot be otherwise met without unduehardship; and

(ii) ensures that the subpoenaed person will bereasonably compensated.

(d) Duties in Responding to a Subpoena.(1) Producing Documents or Electronically Stored Information.

These procedures apply to producing documents orelectronically stored information:(A) Documents. A person responding to a subpoena to

produce documents must produce them as they are kept inthe ordinary course of business or must organize and labelthem to correspond to the categories in the demand.

(B) Form for Producing Electronically Stored InformationNot Specified. If a subpoena does not specify a form forproducing electronically stored information, the personresponding must produce it in a form or forms in which itis ordinarily maintained or in a reasonably usable form orforms.

(C) Electronically Stored Information Produced in OnlyOne Form. The person responding need not produce thesame electronically stored information in more than oneform.

(D) Inaccessible Electronically Stored Information. Theperson responding need not provide discovery ofelectronically stored information from sources that theperson identifies as not reasonably accessible because ofundue burden or cost. On motion to compel discovery orfor a protective order, the person responding must show

that the information is not reasonably accessible becauseof undue burden or cost. If that showing is made, thecourt may nonetheless order discovery from such sourcesif the requesting party shows good cause, considering thelimitations of RCFC 26(b)(2)(C). The court may specifyconditions for discovery.

(2) Claiming Privilege or Protection. (A) Information Withheld. A person withholding

subpoenaed information under a claim that it is privilegedor subject to protection as trial-preparation material must:(i) expressly make the claim; and(ii) describe the nature of the withheld documents,

communications, or tangible things in a mannerthat, without revealing information itself privilegedor protected, will enable the parties to assess theclaim.

(B) Information Produced. If information produced inresponse to a subpoena is subject to a claim of privilege orof protection as trial-preparation material, the personmaking the claim may notify any party that received theinformation of the claim and the basis for it. After beingnotified, a party must promptly return, sequester, ordestroy the specified information and any copies it has;must not use or disclose the information until the claim isresolved; must take reasonable steps to retrieve theinformation if the party disclosed it before being notified;and may promptly present the information to the courtunder seal for a determination of the claim. The personwho produced the information must preserve theinformation until the claim is resolved.

(e) Contempt. The court may hold in contempt a person who, havingbeen served, fails without adequate excuse to obey the subpoena. Anonparty’s failure to obey must be excused if the subpoena purportsto require the nonparty to attend or produce at a place outside thelimits of RCFC 45(c)(3)(A)(ii).

191

FORM 6BSUBPOENA TO TESTIFY AT A DEPOSITION OR TO PRODUCE DOCUMENTS


vs. No.

THE UNITED STATES

SUBPOENA TO TESTIFY AT A DEPOSITIONOR TO PRODUCE DOCUMENTS

To:

� Testimony: YOU ARE COMMANDED to appear at the time, date, and place set forth below to testify at a deposition to be taken

in the above-captioned case. If you are an organization that is not a party in this case, you must designate one or more officers, directors,

or managing agents, or designate other persons who consent to testify on your behalf about the following matters, or those set forth in an

attachment:

Place: Date and Time:

The deposition will be recorded by this method:

� Production: You, or your representatives, must also bring with you to the deposition the following documents, electronically stored

information, or objects, and permit their inspection, copying, testing, or sampling of the material:



Date:

CLERK OF COURT

OR



or if the place of the deposition is more than 100 miles from the place where the deponent resides, is employed, or transacts business in

person, the person served may regard the command as optional unless there is attached to the subpoena an order of the court requiring

his/her appearance notwithstanding the distance of 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)

192



PROOF OF SERVICE




on (date) ; or




� I served the subpoena on (name of individual) who is designated by law to accept

service of process on behalf of (name of organization)

on (date) ; or







Date:



Server’s address






(B) Objections. A person commanded to produce documents

193

or tangible things or to permit inspection may serve on theparty or attorney designated in the subpoena a writtenobjection to inspecting, copying, testing or sampling anyor all of the materials or to inspecting the premises—or toproducing electronically stored information in the form orforms requested. The objection must be served before theearlier of the time specified for compliance or 14 daysafter the subpoena is served. If an objection is made, thefollowing rules apply:(i) At any time, on notice to the commanded person,


(ii) These acts may be required only as directed in theorder, and the order must protect a person who isneither a party nor a party’s officer from significantexpense resulting from compliance.
















(B) Form for Producing Electronically Stored InformationNot Specified. If a subpoena does not specify a form for

producing electronically stored information, the personresponding must produce it in a form or forms in which itis ordinarily maintained or in a reasonably usable form orforms.


(D) Inaccessible Electronically Stored Information. Theperson responding need not provide discovery ofelectronically stored information from sources that theperson identifies as not reasonably accessible because ofundue burden or cost. On motion to compel discovery orfor a protective order, the person responding must showthat the information is not reasonably accessible becauseof undue burden or cost. If that showing is made, thecourt may nonetheless order discovery from such sourcesif the requesting party shows good cause, considering thelimitations of RCFC 26(b)(2)(C). The court may specifyconditions for discovery.






194

FORM 6CSUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS

OR TO PERMIT INSPECTION OF PREMISES


vs. No.

THE UNITED STATES

SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OROBJECTS OR TO PERMIT INSPECTION OF PREMISES

To:

� Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following documents,

electronically stored information, or objects, and permit their inspection, copying, testing, or sampling of the material:


� Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or other property

possessed or controlled by you at the time, date, and location set forth below, so that the requesting party may inspect, measure, survey,

photograph, test, or sample the property or any designated object or operation on it.




Date:

CLERK OF COURT

OR



or if the place for production is more than 100 miles from the place where the person served resides, is employed, or transacts business

in person, the person served may regard the command as optional unless there is attached to the subpoena an order of the court requiring

his/her appearance notwithstanding the distance of 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)

195



PROOF OF SERVICE




on (date) ; or




� I served the subpoena on (name of individual) who is designated by law to accept service

of process on behalf of (name of organization)

on (date) ; or







Date:



Server’s address






(B) Objections. A person commanded to produce documents

196

or tangible things or to permit inspection may serve on theparty or attorney designated in the subpoena a writtenobjection to inspecting, copying, testing or sampling anyor all of the materials or to inspecting the premises—or toproducing electronically stored information in the form orforms requested. The objection must be served before theearlier of the time specified for compliance or 14 daysafter the subpoena is served. If an objection is made, thefollowing rules apply:(i) At any time, on notice to the commanded person,


(ii) These acts may be required only as directed in theorder, and the order must protect a person who isneither a party nor a party’s officer from significantexpense resulting from compliance.
















(B) Form for Producing Electronically Stored InformationNot Specified. If a subpoena does not specify a form for

producing electronically stored information, the personresponding must produce it in a form or forms in which itis ordinarily maintained or in a reasonably usable form orforms.


(D) Inaccessible Electronically Stored Information. Theperson responding need not provide discovery ofelectronically stored information from sources that theperson identifies as not reasonably accessible because ofundue burden or cost. On motion to compel discovery orfor a protective order, the person responding must showthat the information is not reasonably accessible becauseof undue burden or cost. If that showing is made, thecourt may nonetheless order discovery from such sourcesif the requesting party shows good cause, considering thelimitations of RCFC 26(b)(2)(C). The court may specifyconditions for discovery.






197

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]

198

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)

199

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


(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable stepsto avoid imposing undue burden or expense on a person subject to the subpoena. The court must enforce this duty and impose an appropriatesanction—which may include lost earnings and reasonable attorney’s fees—on a party or attorney who fails to comply.

(2) Command to Produce Materials or Permit Inspection.(A) Appearance Not Required. A person commanded to produce documents, electronically stored information, or tangible things, or to

permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appearfor a deposition, hearing, or trial.

(B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorneydesignated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting thepremises—or to producing electronically stored information in the form or forms requested. The objection must be served before theearlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply:(i) At any time, on notice to the commanded person, the serving party may move the court for an order compelling production or

inspection. (ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party’s

officer from significant expense resulting from compliance.(3) Quashing or Modifying a Subpoena.

(A) When Required. On timely motion, the court must quash or modify a subpoena that:(i) fails to allow a reasonable time to comply;(ii) requires a person who is neither a party nor a party’s officer to travel more than 100 miles from where that person resides, is

employed, or regularly transacts business in person—except that, subject to RCFC 45(c)(3)(B)(iii), the person may be commandedto attend a trial by traveling from any such place;

(iii) requires disclosure of privileged or other protected matter, if no exception of waiver applies; or(iv) subjects a person to undue burden.

(B) When Permitted. To protect a person subject to or affected by a subpoena, the court may, on motion, quash or modify the subpoena ifit requires:(i) disclosing a trade secret or other confidential research, development, or commercial information;(ii) disclosing an unretained expert’s opinion or information that does not describe specific occurrences in dispute and results from

the expert’s study that was not requested by a party; or(iii) a person who is neither a party nor a party’s officer to incur substantial expense to travel more than 100 miles to attend trial.

(C) Specifying Conditions as an Alternative. In the circumstances described in RCFC 45(c)(3)(B), the court may, instead of quashing ormodifying a subpoena, order appearance or production under specified conditions if the serving party:(i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and(ii) ensures that the subpoenaed person will be reasonably compensated.

(d) Duties in Responding to a Subpoena.(1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored

information:(A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of

business or must organize and label them to correspond to the categories in the demand.(B) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing

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electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in areasonably usable form or forms.

(C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically storedinformation in more than one form.

(D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored informationfrom sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discoveryor for a protective order, the person responding must show that the information is not reasonably accessible because of undue burdenor cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause,considering the limitations of RCFC 26(b)(2)(C). The court may specify conditions for discovery.

(2) Claiming Privilege or Protection. (A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-

preparation material must:(i) expressly make the claim; and(ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information

itself privileged or protected, will enable the parties to assess the claim.(B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-

preparation material, 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; must not use ordisclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it beforebeing notified; and may promptly present the information to the court under seal for a determination of the claim. The person whoproduced the information must preserve the information until the claim is resolved.

(e) Contempt. The court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena. A nonparty’sfailure to obey must be excused if the subpoena purports to require the nonparty to attend or produce at a place outside the limits of RCFC45(c)(3)(A)(ii).

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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.

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II.

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 Outside or Inside Counsel,” or Form 10—“Application for Access to Information UnderProtective Order by Expert Consultant or Witness”); and must file the executed application with thecourt.

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 listed

203

in 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.

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 in

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writing 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.

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(c). 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

205

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 the

206

proceeding or with any other firm that might gain a competitive advantage from access to the informationdisclosed 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

207

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;

208

d. a description of the financial interests that I, my spouse, and/or my family has in any entitythat 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

209

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

210

in such manner as the court shall direct. See RCFC 65.1.

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

211

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

212

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

213

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

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.

214

that the damages may be ascertained in such manner as the court shall direct and that, on dissolving the

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

215

FORM 14ORDER IMPLEMENTING FED. R. EVID. 502(d)


_____________________________,

Plaintiff,

v.

THE UNITED STATES,

Defendant.

)))))))))))

No. _________

Judge___________________

___________________________

ORDER___________________________

Pursuant to the agreement of the parties and the authority granted this court under Fed. R. Evid. 502(d),it is hereby ordered that a party’s disclosure, in connection with this litigation, of any communication orinformation covered by the attorney-client privilege or entitled to work-product protection shall not constitutea waiver of such privilege or protection either in this litigation or in any other federal or state proceeding.

IT IS SO ORDERED.

_____________________________Judge