RULE 26.-GENERAL PROVISIONS GOVERNING DISCOVERY

(c) Protective Orders.

RULE 70.-JUDGMENT FOR SPECIFIC ACTS; VESTING TITLE

CROSS REFERENCES Contempts, power of court, see section 401 of Title 18, Crimes and Criminal Procedure.

APPENDIX OF FORMS

Form 22. Superseded, eff. July 1, 1963.

Form 22 for motion to bring in third-party defendant, setting out as an exhibit summons and third-party complaint, and for notice of motion, was superseded by Forms 22-A and 22-B, setting out summons and complaint against third-party defendant, and motion to bring in third-party defendant, effective July 1, 1963. See Advisory Committee notes under Forms 22-A and 22-B.

Rule

26. Bond to Stay Execution of Order of Renegotiation Board.

(a) Filing.

(b) Amount.

(c) Sureties.

(d) Collateral.

(e) Increase or decrease in amount of bond. (f) Forms.

XII. NOTICE OF INTENTION; EXCEPTIONS; BRIEFS; ARGUMENT; JUDGMENT

148. Judgment in Renegotiation Cases.

I. RULES; COURT; COMMISSIONERS

Rule 7. Sittings by court and panels.

(a) Panels: The judges of the court shall sit in panels of three, and in such order and at such times and places as the court shall direct, unless a hearing or rehearing en banc is ordered as provided for in this rule.

(b) When Hearing or Rehearing En Banc Will Be Ordered: A majority of the judges who are in regular active service, or the chief judge, may order that a case or controversy be heard initially en banc. A majority of the judges in regular active service may order that a rehearing en banc be granted. Such a hearing or rehearing is not favored and ordinarily will not be ordered except (1) when consideration by the full court is necessary to secure or maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance or difficulty.

(c) Suggestion of a Party for Hearing En Banc: On or before the completion of the briefing on the matter at issue, a party may suggest the appropriateness of and give his reasons for an initial hearing en banc, superseding any panel hearing, by letter to the clerk (original plus 7 copies). The clerk will transmit such suggestion to all judges of the court who are in regular active service. However, a vote will not be taken to determine whether the

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cause shall be heard en banc unless a judge in regular active service requests a vote on such suggestion by a party. A party so suggesting shall promptly mail or otherwise provide a copy thereof to the adverse party or parties. Such suggestion shall not obstruct or stay the routine assignment of the case to a panel unless the court, or the chief judge, so orders.

(d) Suggestion of a Party for Rehearing En Banc: If, after a judgment or order by a panel, a party affected thereby desires to suggest a rehearing en banc, the suggestion shall be included in a motion field pursuant to Rule 151 or Rule 152 and within the time therein prescribed. However, a vote will not be taken to determine whether the cause shall be reheard en banc unless a judge in regular active service requests a vote on such a suggestion made by a party. The pendency of such suggestion shall not affect the finality of the judgment or stay the effectiveness of any order.

(e) Panel Defined: The term "panel" used herein means the same as the term "division" in 28 U.S.C. § 175, as amended.

II. COMMENCEMENT OF SUIT; SERVICE OF PROCESS; COMPUTATION OF TIME

Rule 26. Bond to stay execution of order of renegotiation board.

(a) Filing.-Within 10 days after the filing of the petition in a renegotiation case, a plaintiff desiring to stay the execution of the order of the Renegotiation Board shall file the necessary bond, accompanied by a copy of the Board's order and a copy of the Board's notice thereof to the plaintiff, with the clerk of the court.

(b) Amount.-The bond shall be in an amount equal to 100 percent of the excessive profits to be eliminated under the Board's order, reduced by the credit, if any, authorized by Section 1481 of the Internal Revenue Code of 1954, as shown by an accompanying statement from the District Director of

Internal Revenue for the district in which the return for the taxable year was filed.

(c) Sureties.-Acceptable sureties on bonds shall be those bonding companies holding certificates of authority from the Secretary of the Treasury. (See the latest U.S. Treasury Dept. Circ. 570.)

(d) Collateral.-If collateral is to be deposited as security for a bond, in lieu of a surety, United States Government marketable public securities, fully negotiable by the bearer, owned by the plaintiff, in a sum equal at their par value to the amount of the bond to be furnished, will be acceptable when accompanied by the necessary power of attorney.

(e) Increase or decrease in amount of bond.Nothing contained in this rule shall preclude the entry at any time by the court (or the commissioner) of an order requiring that the amount of the bond be increased or decreased, upon a satisfactory showing that such increase or decrease is necessary.

(f) Forms.-(1) The forms for the bond and the power of attorney referred to in this Rule 26 are prescribed in Appendix E to these rules.

(2) The plaintiff shall file an original and two copies of each instrument or document required by this Rule 26 to be filed with the clerk.

IV. MOTIONS

Rule 54. Reference of dispositive motions.

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(b) Action by commissioner.-(1) Recommendation by commissioner: With respect to any dispositive motion referred to him, the commissioner shall prepare and file with the clerk his opinion and recommendation for the conclusion of law.

(2) Notice of commissioner's recommendation: Upon the filing of the commissioner's recommendation, the clerk shall serve 5 copies thereof on each party, as provided by Rule 23.

(3) Review by the court: (i) If any party is dissatisfied with the recommendation of the commissioner, he shall file with the clerk, within 30 days after service of notice of the filing of the commissioner's recommendation, a request for review of such recommendation and a brief specifying with particularly the matters which he wishes the court to consider in the review and discussing the issues involved. Any adverse party may file an answering brief within 30 days; and within 15 days after the filing of the answering brief, a reply brief may be filed. Briefs shall conform to Rule 144. (See Rule 214(d) as to duplication and number of copies.)

(ii) If a timely request for review of the commissioner's recommendation is filed, the case shall be assigned to the calendar for argument before the court, unless otherwise disposed of by the court.

(iii) In the absence of a timely request for review, any party may by motion request that the commissioner's recommendation be adopted-either (a) in whole or (b) with modifications-by the court as the basis for its judgment. (See Rule 214 (c) as to duplication and number of copies.)

VIII. SUMMARY JUDGMENT; DISMISSALS Rule 102. Dismissal of actions.

(c) Insufficiency of Evidence: (1) Promptly after the plaintiff has completed the presentation of his evidence, the defendant may, by motion, ask for a dismissal of the action on the ground that, on the facts and the law, the plaintiff has not shown a right to recover: Provided, That if a counterclaim is pending, the motion shall be deemed to be a motion for judgment that the plaintiff is not entitled as a matter of law to recover. The motion shall be made orally in open court, except that, when a trial has been adjourned following the presentation of the plaintiff's evidence in order to afford the defendant an opportunity to present its evidence at a later time, the commissioner may authorize the submission of such a motion in written form to the commissioner within such time as he may fix. The motion shall be without prejudice to the right of the defendant to present evidence if the motion is denied.

(2) If the motion is made in open court and is there denied by the commissioner, no record of the motion or of the action thereon, other than that contained in the transcript, need be made. Such an order of denial by the commissioner shall not be subject to review prior to the submission of the commissioner's recommended decision on the case in accordance with Rule 134, and the defendant shall proceed with the presentation of its vidence at the direction of the commissioner.

(3) If the motion is made in open court and is there allowed by the commissioner, the record of trial up to that point shall be filed in accordance with Rule 122(d). After the filing of the record, the commissioner shall enter an order closing proof for the purposes of this paragraph (c), whereupon the parties, in conformity with Rule 134, shall file requested findings of fact and briefs, except that the defendant shall file first.

(4) (i) In a case where (a) the commissioner desires to defer his ruling on a motion made orally in open court, or (b) the motion is submitted in written form pursuant to the commissioner's authorization, the commissioner may direct the parties to submit to him, within such time and in such sequence as he shall prescribe, such memoranda or briefs in support of and in opposition to the motion as he may require. The commissioner's action on the motion shall be by order filed with the clerk, and the order shall have attached to it the motion (if made in written form) and any memoranda or briefs submitted by the parties pursuant to the commissioner's directive.

(ii) If the motion under this subparagraph (4) is denied by the commissioner, his order shall not be subject to review prior to the submission of the commissioner's recommended decision on the case in accordance with Rule 134, and the defendant shall proceed with the presentation of its evidence at the direction of the commissioner.

(iii) If the motion under this subparagraph (4) is allowed, the commissioner shall, in his order, pro

vide for the filing of the record of trial in accordance with Rule 122 (d), unless the record has already been filed in the meantime. After the filing of the record, the commissioner shall enter an order closing proof for the purposes of this paragraph (c), whereupon the parties, in conformity with Rule 134, shall file requested findings and briefs, except that the defendant shall file first.

(5) If the commissioner allows a motion in accordance with subparagraph (3) or subparagraph (4) (iii) of this paragraph (c), he shall make and file his findings of fact material to the issues raised by the motion and his recommendation for the conclusion of law thereon. The commissioner's action in allowing the motion shall not be subject to review prior to the filing of his findings and recommendation. After such filing, all proceedings shall be the same as in a case where a commissioner's recommended decision is filed upon the entire evidence produced by both parties.

X. INCIDENTS OF TRIALS

Rule 122. Reporting Arrangement; Return of Transcript

(a) Record of Proceedings: The court will by contract furnish a reporter to take down the trial proceedings and transcribe the same, unless otherwise ordered by the court or the commissioner.

(b) Reporter; Control; Oath: The reporter shall be under the jurisdiction and control of the commissioner. Before the taking of any evidence, the commissioner shall administer the following oath (or affirmation):

Do you swear (or affirm) that you will well and truly take down and transcribe the proceedings in this trial and do all other things required of you by the commissioner and the rules of the court in connection therewith?

(c) Preparation of Transcript and Exhibits: The preparation of the transcript of trial proceedings, including the exhibits, shall be in conformity with the Instructions to Reporters and Forms contained in Appendix A of these rules.

(d) Return of Transcript and Exhibits: Unless otherwise ordered by the commissioner, the reporter shall file the transcript of trial proceedings, including the exhibits admitted in evidence or designated to accompany the transcript (Rule 133 (e) (2)), with the clerk within 30 days after the conclusion of the trial session at which such proceedings were had. The filing may be accomplished by personally delivering the transcript and exhibits to the clerk's office or by enclosing them in a packet and transmitting them to the Clerk, United States Court of Claims, 717 Madison Place, N.W., Washington, D.C. 20005, in sufficient time for the transcript and exhibits to be filed within the prescribed period. The obligation for the filing of the transcript and exhibits within the prescribed period rests upon the reporter.

(e) Copies of Transcript: The parties may obtain copies of the transcript from the reporter at prices fixed in the reporting contract.

XI. TRIALS

Rule 134. Commissioner's Report

(b) Where All Facts Stipulated.

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(2) The parties' stipulation may aver or, by letters attached to the stipulation or separately addressed to the commissioner, the parties may state (i) that the stipulation is complete in itself and contains all the pertinent facts, except for appended exhibits (if any) that are submitted for the sole purpose of showing the agreed contents of such documents, and (ii) that the parties do not wish to offer further proof. Upon such a showing, the commissioner shall (subject to Rule 13(b) (6) (ii)) return the case to the court by means of a memorandum report advising that the case is at issue without findings of fact or recommendation for the conclusion of law by him; and such memorandum report shall constitute the order closing proof in the case.

(e) Content of brief.-Each brief submitted pursuant to this rule shall comply with the requirements of Rule 144(a)-(d).

(g) Failure To File or Object.

(4) In his discretion, and when in his judgment such action would expedite the disposition of a case without prejudice to the rights of any party, the commissioner may by order filed with the clerk waive, in whole or in part, the requirements of paragraph (c) of this Rule 134 for the filing of requested findings and briefs by the parties. The prior subparagraphs of this paragraph (g) shall not be applicable with respect to any requirement which has been waived.

XII. NOTICE OF INTENTION; EXCEPTIONS;
BRIEFS; ARGUMENT; JUDGMENT
Rule 144. Content of briefs.

(e) Length of Briefs: (1) Except by leave of the court on motion, principal briefs shall not exceed 50 pages of standard typographic printing or 70 pages of printing by any other process of duplicating or copying, exclusive of pages containing the tables referred to in subparagraphs (1) and (2) of paragraph (a) of this rule, the exceptions (if any) to the commissioner's findings of fact, any stipulation of facts that may be included in the brief under the last sentence of Rule 141(c) (2), and any appendix setting out verbatim the pertinent portions of constitutional provisions, treaties, statutes, regulations, agency or board decisions, court decisions, excerpts from trancripts of testimony, and documentary exhibits, in accordance with subparagraph (4) of paragraph (a) of this rule.

(2) Except by leave of the court on motion, reply briefs shall not exceed 25 pages of standard typographic printing or 35 pages of printing by any other process of duplicating or copying.

(3) The practice of incorporating by reference a brief previously filed is disapproved and any such incorporation will be disregarded. A party wishing to rely upon a previously filed brief may do so either by (i) reproducing in an appendix excerpts thereof now relied upon, or (ii) the entire brief. In the latter event the party shall identify the pages now considered pertinent. In either case the pages so identified shall be included in the maximum allowable length set forth in subparagraphs (1) and (2) of this paragraph (e).

(4) A motion for leave to exceed the page limitation set forth in subparagraph (1) or subparagraph (2) of this paragraph (e) shall be filed with the clerk prior to the printing or other duplication of the brief and at least 10 days in advance of the date for the filing of the brief, and shall show good cause therefor. See Rule 214 (c) as to duplication and number of copies.) A response to such a motion for leave shall not be permitted.

Rule 145. Brief of amicus curiae.

XIII. REHEARINGS; NEW TRIALS; CERTIORARI Rule 151. Rehearings; amendments of judgment; new trials.

(a) Grounds: (1) A rehearing may be granted, a judgment may be altered or amended, or a new trial may be granted on any ground established by the rules of common law or equity applicable as between private parties.

(2) The court, at any time while a suit is pending before it, or after proceedings for review have been instituted, or within 2 years after the final disposition of the suit, may grant the United States a new trial and stay the payment of any judgment upon satisfactory evidence, cumulative or otherwise, that any fraud, wrong, or injustice has been done the United States.

(b) Form and Time of Motion; Content; Response; Action if Granted: A motion for rehearing to alter or amend a judgment or for a new trial shall conform to Rule 51 and, except as provided in paragraph (a) (2) of this rule, shall be filed within 14 days after entry of judgment unless the time is shortened or enlarged by order, or is subject to Rule 25 (c). The motion shall state with particularity the points of law or fact which in the opinion of the

movant the court has overlooked or misapprehended and shall contain argument in support thereof. Oral argument in support of the motion shall not be permitted. No response to a motion for rehearing is required, but will be considered if filed within 10 days from the date the motion for rehearing is filed. No time extension shall be allowed for filing such a response. If a motion for rehearing is granted the court may make a final disposition of the cause without reargument or may restore it to the calendar for reargument or resubmission or may make such other orders as are deemed appropriate under the circumstances of the particular case. Except by permission of the court a motion or a response to a motion for rehearing shall not exceed 10 pages of standard typographic printing or 15 pages of printing by any other process of duplicating or copying. (See Rule 214(e) as to duplication and number of copies.)

(c) On Initiative of Court: Not later than 30 days after entry of judgment, the court, on its own initiative, may order a rehearing or a new trial or alter or amend a judgment for any reason that would be sufficient to justify such action on motion of a party.

XIV. WUNDERLICH ACT REVIEWS

Rule 165. Time for filing motions, responses, and replies; duplication; copies.

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(d) Duplication; copies.-The duplication and number of copies of dispositive motions, responses, and replies filed pursuant to Rule 163(a) shall be governed by the terms of Rule 214(d) (2) (i), while any such paper filed pursuant to Rule 163 (b) shall be governed by Rule 214 (d) (2) (ii).

XV. APPEALS; TRANSFERS; AND REFERENCES Rule 173. Briefs on appeals.

(a) Appellant's brief.—The appellant shall, within 60 days from the docketing of an appeal in the court, file with the clerk of the court a brief which complies with Rule 144 (a), (d), and (e) (1) as to content and with Rule 214 (h) as to duplication and number of copies. There shall be added to the brief, in the form of an appendix or supplement, a copy of the final or interlocutory determination appealed from, together with a copy of any opinion of the Commission; and the appellant may also include in the appendix or supplement any other parts of the record that he desires to have specially considered by the court.

(b) Appellee's brief.-Within 60 days from the filing of the appellant's brief, the appellee shall file with the clerk of the court a brief which complies with Rule 144 (b), (d), and (e) (1) as to content and with Rule 214 (h) as to duplication and number of copies. There may be added to the appellee's brief, in the form of an appendix or supplement, any parts of the record which the appellee desires to have specially considered by the court and which have not been set out in the appendix or supplement to the appellant's brief.

(c) Reply brief.-The appellant may file a reply brief within 30 days after the filing of the appellee's brief. If a reply brief is filed, it shall be in conformity with Rule 144 (c), (d), and (e) (2) and with Rule 214 (h).

XVII. ATTORNEYS

Rule 204. Officers and employees of the court as attorneys.

(a) Practice of law.-No person serving as a judge or in any other position with this court shall practice as an attorney or counselor in any court or before any agency of the United States, or otherwise engage in the practice of law, while continuing in that position, except when he represents himself or some member of his immediate family; nor shall any such person, after separating from a position with this court, ever participate, by way of any form of professional consultation or assistance (to anyone other than the court), in any case in which he participated in any way while occupying such position.

(b) Judges, commissioners, clerk, secretary to court.-No person serving as a judge, or as a commissioner, or as the clerk, or as the secretary to this court shall, after separating from that position, practice as attorney or counselor in this court until 2 years shall have elapsed after such separation; nor shall any such person ever participate, by way of any form of professional consultation or assistance (to anyone other than the court), in any case that was pending in this court during the period while he was serving in such position.

XVIII. DUPLICATION; COPIES

Rule 214. Specific papers; duplication; number of copies.

(d) Dispositive motions.-(1) Duplication: Any dispositive motion (as defined in Rule 52(a)), any response or reply thereto (as authorized by Rule 52 (b)), any brief, memorandum of law, or affidavit included in or attached thereto (as required by Rule 51(c)), and any request for review pursuant to Rule 54(b)(3) of a recommendation made pursuant to Rule 54(b) (1), may be typewritten in conformity with Rule 213 (c), unless it exceeds 5 pages in length, in which event it shall be printed in conformity with Rule 212(a) and Rule 213 (a) or (b).

(2) Number of copies: (i) An original and 19 copies of each paper described in the preceding subparagraph (1) of this paragraph (d), with the exception of papers under Rule 163 (b), shall be filed, plus 2 additional copies for each additional adverse party, as defined in Rule 211(b).

(ii) As to papers filed under Rule 163 (b), an original and 3 copies shall be filed, plus 2 additional copies for each additional adverse party, as defined in Rule 211(b).

(TESTIMONY FOR PLAINTIFF OR DEFENDANT)

The parties met, pursuant to notice of the commissioner, at the time above stated, in Room 1614, United States Courthouse and Federal Building, Chicago, Illinois.

Present: Hon. A. B. See, Commissioner; John A. Jones, Esq., counsel for plaintiff; and William B. Smith, Esq., counsel for defendant.

Mr. X. Y. Zee, a reporter, was thereupon sworn by the commissioner as follows:

Do you swear (or affirm) that you will well and truly take down and transcribe the proceedings in this trial and do all other things required of you by the commissioner and the rules of the court in connection therewith?

Pursuant to the order of reference by the Honorable, the United States Court of Claims, in the above-entitled cause, testimony on behalf of the plaintiff (or defendant) was taken as follows:

Richard Roe, a witness produced on behalf of the plaintiff (or defendant), having first been duly sworn by said commissioner, was examined, and in answer to interrogatories testified as follows: Q. State your name, etc. A.

Q. Have you, etc.?

A.

APPENDIX D

PROCEDURE IN CONGRESSIONAL REFERENCE CASES (General Order by the Chief Commissioner)

THE CHIEF COMMISSIONER

(Of the United States Court of Claims, for Congressional Reference Cases. Title 28 U.S.C. §§ 792(a), 1492, 2509 (1964), as amended by Pub. L. No. 89-681, 89th Cong., 2d Sess., Oct. 15, 1966, 80 Stat. 958.)

GENERAL ORDER NO. 3

(Entered September 1, 1969)

1. Purpose. The purpose of this order is to specify procedures applicable to cases referred to the chief commissioner under the enabling act, cited in the caption.

6. Role of chief commissioner.-The 1966 enabling act (cited in the caption) directs the chief commissioners to prescribe rules and regulations for congressional reference cases and "to require the application of the pertinent rules of practice of the