RULES OF THE UNITED STATES 

COURT OF FEDERAL CLAIMS

As amended through January 11, 2010

 
i

TABLE OF CONTENTS

TITLE I. SCOPE OF RULES; FORM OF ACTION.... ... ... ... ... ... ... ... ... ... ... 5

Rule 1. Scope and Purpose. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 5

Rule 2. One Form of Action. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 5

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

MOTIONS, AND ORDERS. ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 5

Rule 3. Commencing an Action. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 5

Rule 3.1. Transfers and Referrals.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 6

Rule 4. Serving a Complaint on the United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Rule 4.1. Serving an Order in a Contempt Proceeding. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Rule 5. Serving and Filing Pleadings and Other Papers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Rule 5.1. Constitutional Challenge to a Statute—Notice, Certification, and Intervention 

 [Not used.].... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 10

Rule 5.2. Privacy Protection For Filings Made with the Court .. . . . . . . . . . . . . . . . . . . . . . . . 10

Rule 5.3. Proof of Service . ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 10

Rule 5.4. Contents and Length of a Brief or Memorandum.. . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Rule 5.5. Format of Filings and Required Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Rule 6. Computing and Extending Time; Time for Motion Papers. . . . . . . . . . . . . . . . . . . . 15

Rule 6.1 Motion for an Enlargement of Time. ... ... ... ... ... ... ... ... ... ... ... ... . 16

TITLE III. PLEADINGS AND MOTIONS. ... ... ... ... ... ... ... ... ... ... ... ... ... . 17

Rule 7. Pleadings Allowed; Form of Motions and Other Papers. . . . . . . . . . . . . . . . . . . . . . 17

Rule 7.1. Disclosure Statement. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 17

Rule 7.2. Time for Filing. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 17

Rule 8. General Rules of Pleading. ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 18

Rule 9. Pleading Special Matters. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 19

Rule 10. Form of Pleadings. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 21

Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; 

 Sanctions.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 21

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

 on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing.. . 23

Rule 13. Counterclaim.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 25

Rule 14. Third-Party Practice. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 26

Rule 15. Amended and Supplemental Pleadings.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Rule 16. Pretrial Conferences; Scheduling; Management.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

TITLE IV. PARTIES. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 32

Rule 17. Plaintiff and Defendant; Capacity.... ... ... ... ... ... ... ... ... ... ... ... ... 32

Rule 18. Joinder of Claims . ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 33

Rule 19. Required Joinder of Parties.... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 33

Rule 20. Permissive Joinder of Parties. ... ... ... ... ... ... ... ... ... ... ... ... ... ... 34

Rule 21. Misjoinder and Nonjoinder of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Rule 22. Interpleader [Not used.]. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 34

Rule 23. Class Actions. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 35

Rule 23.1. Derivative Actions. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 38
ii

Rule 23.2. Actions Relating to Unincorporated Associations [Not used.]. . . . . . . . . . . . . . . . . 39

Rule 24. Intervention. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 39

Rule 25. Substitution of Parties.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 39

TITLE V. DISCLOSURES AND DISCOVERY.... ... ... ... ... ... ... ... ... ... ... ... 40

Rule 26. Duty to Disclose; General Provisions Governing Discovery. . . . . . . . . . . . . . . . . . . 40

Rule 27. Depositions to Perpetuate Testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Rule 28. Persons Before Whom Depositions May Be Taken. . . . . . . . . . . . . . . . . . . . . . . . . . 47

Rule 29. Stipulations About Discovery Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Rule 30. Depositions by Oral Examination.... ... ... ... ... ... ... ... ... ... ... ... ... 48

Rule 31. Depositions by Written Questions. ... ... ... ... ... ... ... ... ... ... ... ... . . 52

Rule 32. Using Depositions in Court Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Rule 33. Interrogatories to Parties.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 55

Rule 34. Producing Documents, Electronically Stored Information, and Tangible 

 Things, or Entering onto Land, for Inspection and Other Purposes. . . . . . . . . . . . . 56

Rule 35. Physical and Mental Examinations.... ... ... ... ... ... ... ... ... ... ... ... . . 58

Rule 36. Requests for Admission. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 58

Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions. . . . . . . . . . . 59

TITLE VI. TRIALS.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 63

Rule 38. Right to a Jury Trial; Demand [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Rule 39. Trial by Jury or by the Court [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Rule 40. Scheduling Cases for Trial. ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 63

Rule 40.1. Assigning and Transferring Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Rule 40.2. Related Cases. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 63

Rule 40.3. Complaints Against Judges.... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 65

Rule 41. Dismissal of Actions.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 66

Rule 42. Consolidation; Separate Trials. ... ... ... ... ... ... ... ... ... ... ... ... ... . . 67

Rule 42.1. Motion to Consolidate. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 67

Rule 43. Taking Testimony. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 68

Rule 44. Proving an Official Record. ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 68

Rule 44.1. Determining Foreign Law.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 69

Rule 45. Subpoena.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 69

Rule 46. Objecting to a Ruling or Order. ... ... ... ... ... ... ... ... ... ... ... ... ... . . 73

Rule 47. Selecting Jurors [Not used.]. ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 73

Rule 48. Number of Jurors; Verdict [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

Rule 49. Special Verdict; General Verdict and Questions [Not used.].. . . . . . . . . . . . . . . . . . 73

Rule 50. Judgment as a Matter of Law in a Jury Trial; Related Motion for a 

 New Trial; Conditional Ruling [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

Rule 51. Instructions to the Jury; Objections; Preserving a Claim of Error [Not used.].. . . . . 73

Rule 52. Findings and Conclusions by the Court; Judgment on Partial Findings.. . . . . . . . . . 73

Rule 52.1. Administrative Record. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 74

Rule 52.2. Remanding a Case.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 75

Rule 53. Masters. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 76

TITLE VII. JUDGMENT.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 79

Rule 54. Judgment; Costs. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 79
iii

Rule 55. Default; Default Judgment. ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 81

Rule 56. Summary Judgment.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 81

Rule 56.1 Review of a Decision on the Basis of the Administrative Record 

 [Abrogated (eff. June 20, 2006).]. ... ... ... ... ... ... ... ... ... ... ... ... . . 83

Rule 56.2 Remanding a Case [Renumbered as RCFC 52.2 (eff. June 20, 2006).]. . . . . . . . . . . 83

Rule 57. Declaratory Judgment. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 83

Rule 58. Entering Judgment. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 84

Rule 58.1. Notice of Appeal.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 85

Rule 59. New Trial; Reconsideration; Altering or Amending a Judgment . . . . . . . . . . . . . . . 85

Rule 60. Relief From a Judgment or Order. ... ... ... ... ... ... ... ... ... ... ... ... ... 86

Rule 61. Harmless Error. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 87

Rule 62. Stay of Proceedings to Enforce a Judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

Rule 62.1 Indicative Ruling on Motion for Relief That is Barred by a Pending Appeal. . . . . . 88

Rule 63. Judge’s Inability to Proceed. ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 88

TITLE VIII. PROVISIONAL AND FINAL REMEDIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Rule 64. Seizing a Person or Property [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Rule 65. Injunctions and Restraining Orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

Rule 65.1. Proceedings Against a Surety. ... ... ... ... ... ... ... ... ... ... ... ... ... ... 90

Rule 66. Receivers [Not used.]. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 90

Rule 67. Deposit into Court [Not used.]. ... ... ... ... ... ... ... ... ... ... ... ... ... . . 90

Rule 68. Offer of Judgment.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 90

Rule 69. Execution [Not used.]. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 91

Rule 70. Enforcing a Judgment for a Specific Act [Not used.].. . . . . . . . . . . . . . . . . . . . . . . . 91

Rule 71. Enforcing Relief For or Against a Nonparty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

TITLE IX. SPECIAL PROCEEDINGS. ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 91

Rule 71.1. Condemning Real or Personal Property [Not used.].. . . . . . . . . . . . . . . . . . . . . . . . . 91

Rule 72. Magistrate Judges: Pretrial Order [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

Rule 73. Magistrate Judges: Trial by Consent; Appeal [Not used.]. . . . . . . . . . . . . . . . . . . . . 91

Rule 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.].. . . . . . . . . . . . 92

Rule 75. Proceedings On Appeal From Magistrate Judge to District Judge 

 Under Rule 73(d) [Abrogated in FRCP.].. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

Rule 76. Judgment of the District Judge on the Appeal Under Rule 73(d) and Costs 

 [Abrogated in FRCP.]. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 92

TITLE X. COURT AND CLERK: CONDUCTING BUSINESS; ISSUING ORDERS.. . . . . . 92

Rule 77. Conducting Business; Clerk’s Authority; Notice of an Order or Judgment.. . . . . . . 92

Rule 77.1. Business Hours, Scheduling, and Court Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

Rule 77.2. Authorization to Act on Certain Motions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

Rule 77.3. Withdrawing, Disposing of, and Unsealing Papers and Exhibits.. . . . . . . . . . . . . . . 94

Rule 78. Hearing Motions; Submission on Briefs [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . 95

Rule 79. Records Kept by the Clerk. ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 95

Rule 80. Stenographic Transcript as Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

Rule 80.1. Court Reporters.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 97
iv

TITLE XI. GENERAL PROVISIONS. ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 98

Rule 81. Applicability of the Rules in General; Removed Actions [Not used.]. . . . . . . . . . . . 98

Rule 82. Jurisdiction and Venue Unaffected [Not used.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

Rule 83. Rules by Court of Federal Claims; Judge’s Directives.. . . . . . . . . . . . . . . . . . . . . . . 98

Rule 83.1. Attorneys.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 99

Rule 83.2. Attorney Discipline.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 103

Rule 83.3. Legal Assistance by a Law Student. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

Rule 83.4. Advisory Council. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 112

Rule 84. Forms. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 112

Rule 85. Title.... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 112

Rule 86. Effective Date . ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 113

APPENDIX A

CASE MANAGEMENT PROCEDURE. ... ... ... ... ... ... ... ... ... ... ... ... ... . . 114

APPENDIX B

VACCINE RULES OF THE UNITED STATES COURT

OF FEDERAL CLAIMS. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 120

APPENDIX C

PROCEDURE IN PROCUREMENT PROTEST CASES

PURSUANT TO 28 U.S.C. § 1491(b). ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 136

APPENDIX D

PROCEDURE IN CONGRESSIONAL REFERENCE CASES. . . . . . . . . . . . . . . . . . . . . . . . 141

APPENDIX E

ELECTRONIC CASE FILING PROCEDURE. ... ... ... ... ... ... ... ... ... ... ... ... 143

APPENDIX F

PROCEDURE IN TAX PARTNERSHIP CASES. ... ... ... ... ... ... ... ... ... ... ... . 148

APPENDIX G

PROCEDURE IN INDIAN CLAIMS COMMISSION CASES.. . . . . . . . . . . . . . . . . . . . . . . . 156

APPENDIX H

PROCEDURE FOR ALTERNATIVE DISPUTE RESOLUTION. . . . . . . . . . . . . . . . . . . . . . 157

APPENDIX I

PROCEDURE IN CARRIER CASES. ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 159

APPENDIX OF FORMS. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 167

FORM 1

ADMISSION INSTRUCTIONS.... ... ... ... ... ... ... ... ... ... ... ... ... 167

FORM 2

COVER SHEET. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 169
FORM 3A

REPORTER FORM. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 172

FORM 3B

CERTIFICATE OF REPORTER. ... ... ... ... ... ... ... ... ... ... ... ... . . 173

FORM 3C

CERTIFICATE OF REPORTER. ... ... ... ... ... ... ... ... ... ... ... ... . . 174

FORM 4

BILL OF COSTS. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 175

FORM 5

EQUAL ACCESS TO JUSTICE ACT FORM.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 176

FORM 6A

SUBPOENA TO APPEAR AND TESTIFY AT A HEARING OR TRIAL. . . . . . 178

FORM 6B

SUBPOENA TO TESTIFY AT A DEPOSITION OR TO PRODUCE 

DOCUMENTS. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 181

FORM 6C

SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS

OR TO PERMIT INSPECTION OF PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . 184

FORM 7

CAPTION OF ALL FILINGS IN VACCINE CASES. . . . . . . . . . . . . . . . . . . . . . . 187

FORM 7A

SUBPOENA IN VACCINE CASES. ... ... ... ... ... ... ... ... ... ... ... . . 188

FORM 8

PROTECTIVE ORDER IN PROCUREMENT PROTEST CASES. . . . . . . . . . . . 191

FORM 9

APPLICATION FOR ACCESS TO INFORMATION UNDER

PROTECTIVE ORDER BY OUTSIDE OR INSIDE COUNSEL. . . . . . . . . . . . . . 195

FORM 10

APPLICATION FOR ACCESS TO INFORMATION UNDER

PROTECTIVE ORDER BY EXPERT CONSULTANT OR WITNESS.. . . . . . . . 197

FORM 11

SURETY BOND FOR TEMPORARY RESTRAINING ORDER

OR PRELIMINARY INJUNCTION. ... ... ... ... ... ... ... ... ... ... ... . . 199

FORM 12

SUPERSEDEAS BOND (SURETY). ... ... ... ... ... ... ... ... ... ... ... . . 201

FORM 13

BOND WITH COLLATERAL FOR

TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION.. . 203

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 January 11, 2010

The United States Court of Federal Claims (formerly designated United States Claims Court) was

created by the Federal Courts Improvement Act of 1982 (Pub. L. No. 97-164, 96 Stat. 25 (1982)). The court

inherited 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 its

proceedings.

The Federal Rules of Civil Procedure applicable to civil actions tried by a United States district court

sitting without a jury have been incorporated into the following rules to the extent appropriate for

proceedings 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 Federal

Rules of Civil Procedure as amended through November 30, 2001, to the extent practicable given differences

in 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 Advisory

Committee Notes that accompany the Federal Rules of Civil Procedure. The court’s own Rules Committee

Notes are intended primarily to state the source of a given rule but in some instances also to provide

interpretive 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 Civil

Procedure. Immediately after each rule, a parenthetical reference indicates the date of adoption and the dates

of any amendments, commencing with the substantial revision and reordering of the rules that occurred in

2002. Each rule is also followed by a Rules Committee Note or Notes explaining the basis and purpose of

the rule as revised in 2002 and of any substantive amendments thereafter. The evolution of the court’s rules

has been increasingly significant to the court’s work, and the addition of historical Rules Committee Notes

should aid both counsel and the court in resolving issues that may arise regarding the rules. Stylistic changes

also 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 are

set forth in the United States Claims Court Reporter and, after December 1992, in the Federal Claims

Reporter. The relevant citations to changes in the rules from their inception through 2002 are as follows:

1 Cl. Ct. XXII–CXLVI (1982) (General Order No. 3, adopting the Rules of the United States
2

Claims Court, effective October 1, 1982); 

9 Cl. Ct. XXI–CXXXVIII (1985) (General Order No. 11, adopting revised Rules of the

United 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 United

States Claims Court, effective January 25, 1989); 

18 Cl. Ct. XIX–XXII(1990) (General Order No. 25,specifying the use of a complaint cover

sheet, effective January 1, 1990); 

19 Cl. Ct. XIX–XXXII (1990) (General Order No. 26, adopting Appendix J to the Rules of

the United States Claims Court and specifying the procedures for reviewing decisions of the

special 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 United

States Claims Court, effective March 15, 1991); 

23 Cl. Ct. XXIII–XXIV (1991) (General Order No. 29, amending Appendix J to the Rules

of the United States Claims Court, effective July 1, 1991); 

25 Cl. Ct. XIX–CLXVII (1992) (General Order No. 31, adopting revised Rules of the United

States 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 the

court 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 Governing

Complaints of Judicial Misconduct and Disability, effective June 2, 1993); 

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

January 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 of

Federal Claims, effective May 1, 2002). 

Post-2002 Amendments

To maintain symmetry between the court’s rules and the Federal Rules of Civil Procedure, the court

has adopted a policy of regularly amending its rules to reflect parallel changes in the Federal Rules of Civil

Procedure. In keeping with this policy, citations to post-2002 amendments to the revised rules of the court

are as follows: 

55 Fed. Cl. XII–XVI (2003) (General Order No. 2003-42 adopting Interim Procedures for

Electronic 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 A

to 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 Federal

Claims Reporter. Access to post-2006 rules revisions is, however, available on the court’s website, at

www.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; abrogating

Appendix G; redesignating former Appendix E as Appendix I). 

April 10, 2008 (adopting revised rules governing complaints against judges as promulgated

by the Judicial Conference of the United States). 

November 3, 2008 (adopting changes in rule structure and word usage that were introduced as

restyling changes into the Federal Rules of Civil Procedure on December 1, 2007; introducing minor
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 FRCP

counterpart). 

July 13, 2009 (amending Rule 77.3(a); adopting revisedRule 83.2; introducing new subpoena forms

(Forms 6A, B, and C); restyling Appendix B (Vaccine Rules) to conform to the restyling changes

that 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 accordance

with 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 83.1

and Appendices B, D, and F consistent with amendments to the Federal Rules of Civil Procedure that

became effective December 1, 2009; and amending Rules 14, 23, 32, 54, and 83.1, and Vaccine Rule

5).
5 RCFC 1, 2, and 3

TITLE I. SCOPE OF RULES; FORM OF

ACTION

Rule 1. Scope and Purpose

These rules govern the procedure in the United

States Court of Federal Claims in all suits. They

should be construed and administered to secure the

just, speedy, and inexpensive determination of

every action and proceeding. 

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

The Rules of the United States Court of

Federal Claims are drawn under the authority of 28

U.S.C. §§ 2071(a), (c); 2503(b) (generally);

2521(a) (subpoena and incidental powers). These

rules may be cited as “RCFC.” Rule 1 has been

revised to: (i) reflect the change in the court’s

name; (ii) eliminate, as no longer necessary, the

previous reference to proceedings pending in the

court on October 1, 1982, the year of the court’s

establishment; (iii) incorporate the 1993 revision to

Rule 1 of the Federal Rules of Civil Procedure

(FRCP) emphasizing that the rules are to be both

construed and administered to ensure that civil

litigation is resolved not only fairly, but without

undue cost and delay; (iv) delete subdivision (a)(3)

for consistency with the FRCP (while retaining the

substance of this provision in RCFC 83(b), which

is modeled on FRCP 83(b)); and (v) move

subdivision (b) to the preamble, because it is

explanatory rather than prescriptive. 

2008 Amendment

The language ofRCFC1 has been amended to

conform to the general restyling of the FRCP. 

Rule 2. One Form of Action

There is one form of action—the civil action.

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 2 is identical to its FRCP counterpart. 

2008 Amendment

The language ofRCFC2 has been amended to

conform to the general restyling of the FRCP. 

TITLE II. COMMENCING AN ACTION;

SERVICE OF PROCESS,

PLEADINGS, MOTIONS, AND

ORDERS

Rule 3. Commencing an Action

A civil action is commenced by filing a complaint

with the court.

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

In the interest of achieving greater uniformity

with the corresponding FRCP, a number of changes

have been made to RCFC 3. First, former

subdivision (a) was fully conformed to the FRCP;

the reference to RCFC 40.2 calls attention to this

court’s “related case” rule. Second, former

subdivision (b), which addressed disputes

regarding filing dates, was deleted—both in the

interest of uniformity and in the belief that it was

inappropriate to include a rule of decision as part

of a procedural rule. Third, former subdivision (c)

(prescribing a cover sheet and identifying the

number of copies required for filing) was moved to

RCFC 5.3(d). 

2008 Amendment

The 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 included

in the former version of RCFC 3 has been deleted

as unnecessary.
RCFC 3.1 and 4 6

Rule 3.1.Transfers and Referrals

(a) Transfer From Another Court.

(1) Filing Requirements. When the transfer

of a case from another court is permitted

by law, including compliance with 28

U.S.C. §1292(d)(4)(B), the case will be

filed in this court when the clerk

receives:

(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 the

parties with a notice of the filing as

required by RCFC 5.

(3) Filing Fee. No filing fee is required in

this court when all filing fees required in

the other court are shown to have been

paid.

(4) Amended Complaint; Copies. Within 28

days after service of the notice of filing,

the plaintiff must file an original and

7 copies of an amended complaint,

conforming to the rules of this court and

setting forth the claim or claims

transferred.

(5) Serving an Amended Complaint. The

clerk must serve the amended complaint

on the United States in accordance with

RCFC 4. 

(b) Referral of a Case by the Comptroller

General. 

(1) Serving a Notice. When a case is

referred to the court by the Comptroller

General, the clerk must serve a notice,

under RCFC 5:

(A) on each person whose name and

address are shown by the papers

transmitted and who appears to have

an interest in the subject matter of

the reference; and 

(B) on the Attorney General. 

(2) Contents of the Notice; Time for a

Response. The notice required by this

subdivision must:

(A) indicate that the reference has been

filed;

(B) explain that the person notified

appears to have an interest in the

subject matter of the reference; and

(C) advise that a complaint setting forth

any claim of such person must be

filed within 90 days.

(3) If a Party Fails to Appear. If no

interested person files a complaint within

the time specified in the notice served by

the clerk, the case will be submitted to

the court upon the papers filed and upon

such evidence, if any, as may be

produced by the Attorney General. 

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 3.1 has no FRCP counterpart. The rule

formerly appeared in these rules as RCFC 84. The

renumbering of RCFC 84 was intended to reflect

its more logical placement in the organizational

structure of the court’s rules. 

2008 Amendment

The 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 the

filing of “8 copies of the complaint filed in the

other court” and the instruction that after the filing

of the complaint, or after referral of a case by the

Comptroller General, “further proceedings will be

governed by this court’s rules.” 

Rule 4. Serving a Complaint on the United

States

(a) Manner of Service. To serve a complaint on

the United States, the clerk must deliver 5

copies of the complaint to the Attorney

General or to an agent designated by authority

of the Attorney General.

(b) Proof of Service. When serving a complaint,

the clerk must enter the fact of service on the
7 RCFC 4.1

docket, 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 amended

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

The title of RCFC 4 has been changed to more

closely conform to FRCP 4(i). Other provisions of

FRCP 4(i)—those dealing with service upon

agencies, corporations, or officers of the United

States—have not been made a part of this court’s

RCFC 4 because, in this court (with the exception

of vaccine cases), only the United States is

properly the named defendant. See RCFC 10(a).

2008 Amendment

The language ofRCFC4 has been amended to

conform to the general restyling of the FRCP. 

Rule 4.1. Serving an Order in a Contempt

Proceeding

(a) Order Initiating a Contempt Proceeding. 

(1) In General. An order initiating a

contempt proceeding against a person or

entity other than a party must be served

by a United States marshal or deputy

marshal or by a person specially

appointed by the court. A person

specially appointed for that purpose

should make service as provided for in

FRCP 4(l).

(2) Proof of Service. Proof of service must

be made in accordance with

RCFC 45(b)(4).

(b) All Other Orders Related to a Contempt

Proceeding. All other orders related to a

contempt 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’s

representative, or a nonparty.

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

New RCFC 4.1 implements the contempt

authority granted to this court by § 910 of the

Federal Courts Administration Act of 1992, Pub. L.

No. 102-572, 106 Stat. 4506, 4519-20. That

section, now codified at 28 U.S.C. § 2521(b), (c)

(1994), reads in relevant part as follows:

(b) The United States Court of

Federal Claims shall have power to

punish by fine or imprisonment, at its

discretion,such contempt of its authority

as—

(1) misbehavior of any

person in its presence or so

near thereto as to obstruct the

administration of justice;

(2) misbehavior of any of

its officers in their official

transactions; or

(3) disobedience or

resistance to its lawful writ,

process, order, rule, decree or

command.

(c) The United States Court of

Federal Claims shall have assistance in

the carrying out of its lawful writ,

process, order, rule, decree, or command

as is available to a court of the United

States. The United States marshal for

any district in which the Court of Federal

Claims is sitting shall, when requested by

the chief judge of the Court of Federal

Claims, attend any session of the Court

of Federal Claims in such district.

The rule adopts the mode of service specified

in FRCP 4.1, which requires that service of

process, other than a summons, be effected upon

non-parties through means more formal than

mailing. See generally FRCP 4.1 Advisory

Committee Notes (recognizing a distinction in

service requirements between parties and nonparties); I.A.M. Nat’l Pension Fund v. Wakefield
RCFC 5 8

Indus., 699 F.2d 1254, 1259-62 (D.C. Cir. 1983)

(discussing service of contempt orders). 

2008 Amendment

The language of RCFC 4.1 has been amended

to conform to the general restyling of the FRCP. 

In addition, subdivision (a)(1) has been

changed in two respects. First, the phrase “or

entity” has been added to make clear that the

service requirements applicable to an order

initiating a contempt proceeding against a nonparty

apply to “a person or entity other than a party.”

Second, the phrase “shall deliver a copy of the

order to the person named therein” has been

omitted in favor of the following new sentence: “A

person specially appointed for that purpose should

make service as provided for in FRCP 4(l).” No

other substantive changes are intended. 

Rule 5. Serving and Filing Pleadings and

Other Papers

(a) Service: When Required.

(1) In General. Unless these rules provide

otherwise, each of the following papers

must 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 court

orders otherwise;

(D) a written motion, except one that

may be heard ex parte; and

(E) a written notice, appearance,

demand, or offer of judgment, or

any similar paper.

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

required on a party who is in default for

failing to appear. But a pleading that

asserts a new claim for relief against

such a party must be served on that party

under RCFC 4.

(3) Seizing Property. [Not used.] 

(b) Service: How Made.

(1) Serving an Attorney. If a party is

represented by an attorney, service under

this rule must be made on the attorney

unless the court orders service on the

party.

(2) Service in General. A paper is served

under this rule by:

(A) handing it to the person;

(B) leaving it:

(i) at the person’s office with a

clerk or other person in charge

or, if no one is in charge, in a

conspicuous place in the

office; or

(ii) if the person has no office or

the office is closed, at the

person’s dwelling or usual

place of abode with someone

of suitable age and discretion

who resides there;

(C) mailing it to the person’s last known

address—in which event service is

complete upon mailing;

(D) leaving it with the court clerk if the

person has no known address;

(E) sending it by electronic means if the

person consented in writing—in

which event service is complete

upon transmission, but is not

effective if the serving party learns

that it did not reach the person to be

served; or

(F) delivering it by any other means

that the person consented to in

writing—in which event service is

complete when the person making

service delivers it to the agency

designated 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 is

required to be served—together with a

certificate of service—must be filed

within a reasonable time after service.

But disclosures under RCFC 26(a)(1) or
9 RCFC 5 (cont.)

(2) and the following discovery requests

and responses must not be filed until they

are used in the proceeding or the court

orders filing: depositions, interrogatories,

requests for documents ortangible things

or to permit entry onto land, and requests

for admission. 

(2) How Filing Is Made—In General. A

paper 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 note

the filing date on the paper and

promptly send it to the clerk. 

(3) Electronic Filing. The court requires

filing by electronic means, subject to

reasonable exceptions, as provided in

Appendix E to these rules. A paper filed

electronically in compliance with

Appendix E is a written paper for

purposes of these rules.

(4) Acceptance by the Clerk. The clerk

must not refuse to file a paper solely

because it is not in the form prescribed

by these rules.

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

Nov. 15, 2007, Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

The changes made to RCFC 5 were intended

to bring the rule into closer conformity with

FRCP 5. Thus, in addition to a change in

sequence, changes in text include the following:

First, the text of subdivision (b) has been

modified to reflect the December 1, 2001, changes

to the FRCP which significantly affect organization

and which also make possible consensual service

by electronic means. In addition, the clause “but

filing is not” has been deleted from the last

sentence of that subdivision. The deleted language

was not in conformity with the FRCP. Filing is not

complete on mailing; filing is controlled by

subdivisions (d) and (e) of this rule.

Second, subdivision (e) adopts the language of

the FRCP recognizing the appropriateness of

permitting papers to be “filed, signed, or verified

by electronic means that are consistent with

technical standards, if any, that the Judicial

Conference of the United States establishes.” It

should be noted that no decision has yet been made

by the court to implement electronic filing. Such a

decision, when made, will be accomplished

through an amendment to the rules. Until the

issuance of such amendment, the clerk’s office will

not 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 final

sentence from FRCP 5(e) stating that “[t]he clerk

shall not refuse to accept for filing any paper

presented for that purpose solely because it is not

presented in proper form as required by these

rules.” The addition of this language to the rule

was not intended to alter the court’s practice of

treating all non-conforming complaints as filed

upon receipt in the clerk’s office while referring

other non-conforming papers received in the

clerk’s office to a judge for instructions as to

whether to permit their filing or to require

counsel’s correction of the papers’ defects.

Finally, former subdivision (e), titled “Proof

of Service,” no longer appears in FRCP 5. In order

to conform more closely to FRCP 5, former

subdivision (e) was deleted from this rule and now

appears as RCFC 5.1. 

_______________

* On March 17, 2003, the court adopted General

Order No. 42A instituting an interim program

requiring electronic filing for some cases. The

court anticipates that electronic filing procedures

will be incorporated into the rules. 

2007 Amendment

RCFC 5 has been amended to reflect the

court’s requirement of filing by electronic means

subject to reasonable exceptions. The amendment

reflects the development of electronic filing and

parallels a similar change in FRCP 5(e).

2008 Amendment
RCFC 5.1, 5.2, and 5.3 10

The language of RCFC 5 has been amended to

conform to the general restyling of the FRCP. 

In addition, the phrase “except one that may

be heard ex parte” has been added to RCFC

5(a)(1)(D) to conform to the FRCP. 

Rule 5.1. Constitutional Challenge to a

Statute—Notice, Certification, and

Intervention [Not used.]

Rule 5.2. Privacy Protection For Filings Made

with the Court

(a) Redacted Filings. Unless the court orders

otherwise, in an electronic or paper filing with

the court that contains an individual’s socialsecurity number, taxpayer-identification

number, or birth date, the name of an

individual known to be a minor, or a financialaccount number, a party or nonparty making

the filing may include only:

(1) the last four digits of the social-security

number and taxpayer-identification

number;

(2) the year of the individual’s birth;

(3) the minor’s initials; and

(4) the last four digits of the financialaccount number.

(b) Exemptions from the Redaction

Requirement. The redaction requirement

does not apply to the following:

(1) a financial-account number that

identifies the property allegedly subject

to forfeiture in a forfeiture proceeding;

(2) the record of an administrative or agency

proceeding;

(3) the official record of a state-court

proceeding;

(4) the record of a court or tribunal, if that

record was not subject to the redaction

requirement when originally filed; and

(5) a filing covered by RCFC 5.2(d). 

(c) Limitations on Remote Access to Electronic

Files; Social-Security Appeals and

Immigration Cases. [Not used.]

(d) Filings Made Under Seal. The court may

order that a filing be made under seal without

redaction. The court may later unseal the

filing or order the person who made the filing

to file a redacted version for the public record.

(e) Protective Orders. For good cause, the court

may 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 filed

with the court.

(f) Option for Additional Unredacted Filing

Under Seal. A person making a redacted

filing may also file an unredacted copy under

seal. The court must retain the unredacted

copy as part of the record.

(g) Option for Filing a Reference List. A filing

that contains redacted information may be

filed together with a reference list that

identifies each item of redacted information

and specifies an appropriate identifier that

uniquely corresponds to each item listed. The

list must be filed under seal and may be

amended as of right. Any reference in the

case to a listed identifier will be construed to

refer to the corresponding item of

information.

(h) Waiver of Protection of Identifiers. A

person waives the protection of RCFC 5.2(a)

as to the person’s own information by filing it

without redaction and not under seal. 

(Added Nov. 3, 2008.) 

Rules Committee Note

2008 Adoption

New RCFC 5.2 has been added to correspond

to the adoption of the same rule in the FRCP

(which became effective December 1, 2007). (The

redaction of personal information as addressed in

RCFC 5.2 also appears in Appendix E (“Electronic

Case Filing Procedure”), paragraph 26 (“Personal

Information”).) 

Rule 5.3. Proof of Service 

(a) In General. Service is made by the party,

attorney of record, or any other person acting
11 RCFC 5.4

under the attorney of record’s direction by

executing a certificate of service containing

the 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 other

means.

(b) Attaching the Certificate of Service. The

certificate of service must be attached to the

end of any original document, including an

appendix, and to any copies of that document.

(c) Amending the Certificate of Service. The

certificate of service may be amended or

supplied to the court at any time unless doing

so would result in material prejudice to the

substantial rights of any party. 

(As revised and reissued May 1, 2002; as

renumbered Nov. 15, 2007; as amended Nov. 3,

2008.) 

Rules Committee Notes

2002 Revision

RCFC 5.1 has no FRCP counterpart. The text

of this rule formerly appeared as subdivision (e) of

former RCFC 5. 

2007 Amendment

RCFC 5.2 formerly appeared in these rules as

RCFC 5.1 and has been renumbered in light of the

adoption of FRCP 5.1, effective December 1, 2006,

to preserve the consistency in numbering systems

between the court’s rules and the FRCP. 

2008 Amendment

The language of RCFC 5.3 has been amended

to conform to the general restyling of the FRCP. 

RCFC 5.3 formerly appeared in these rules as

RCFC 5.2 and has been renumbered to

accommodate the court’s adoption of FRCP 5.2

(which became effective December 1, 2007) and to

preserve the consistency in numbering systems

between the court’s rules and the FRCP. 

Rule 5.4. Contents and Length of a Brief or

Memorandum

(a) Contents.

(1) In General. A brief or memorandum

must be compact, concise, logically

arranged, and free of burdensome,

irrelevant, immaterial, and scandalous

matter. The court may disregard a brief

or memorandum that fails to comply with

this rule. 

(2) Initial Brief or Memorandum. Except

in a brief or memorandum of 10 pages or

less or in pretrial findings under

Appendix A, the first brief or

memorandum must contain the following

items, arranged under proper headings

and in the following order:

(A) a table of contents, including the

specific contents of any appendix or

appendices to the brief or

memorandum, listing a description

of every item or exhibit being

reproduced in the appendix and the

page number at which the item or

exhibit appears; 

(B) a table of cited constitutional

provisions, treaties, statutes,

regulations, and cases, giving the

volume and page number of the

edition where each may be found

(using the United States Claims

Court Reporter or the Federal

Claims Reporter for all published

United States Claims Court and

United States Court of Federal

Claims orders and opinions) and

arranging the cases in alphabetical

order;

(C) a concise statement of each question

presented;

(D) a concise statement of the case,

making reference to specific

findings, stipulations of fact, or

other pertinent portions of the

record and setting out verbatim the

pertinent portions of the applicable

constitutional provisions, treaties,
RCFC 5.4 (cont.) 12

statutes, regulations, and texts of all

administrative decisions directly

involved in the case (unless

previously reproduced in or as an

exhibit to the complaint);

(E) a clear statement of the argument,

setting forth the points of fact and

law being presented and the

authorities relied upon;

(F) a concise conclusion, indicating the

relief sought; and

(G) any appendix to the brief or

m e m orand um, num bered

consecutively within itself to enable

the court to find and read the

material more easily and, if set forth

in a volume separate from the brief

or memorandum, containing a table

of contents with a description of

every item or exhibit being

reproduced and the page number at

which the item or exhibit appears. 

(3) Opposing Brief or Memorandum. An

opposing or answering brief must

conform to the requirements set forth in

RCFC 5.4(a)(2), except that the items

referred to in 5.4(a)(2)(C) and (D) need

not be included unless the party is

dissatisfied with the other side’s

presentation.

(4) Reply Brief or Memorandum. A reply

brief or memorandum must conform to

the requirements of RCFC 5.4(a)(3).

(5) Cross-Motions. 

(A) Initial Motion. Any cross-motion

must:

(i) conformto the requirements of

RCFC 5.4(a)(3);

(ii) be contained in the same

document as the response to

the original motion.

(B) Response. A response to a crossmotion must be contained in the

same document as the reply to the

original motion.

(b) Length.

(1) Initial Brief or Memorandum. Except

by leave of the court on motion, a party’s

initial brief or memorandum must not

exceed 40 pages (50 pages for a crossmovant), 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 the

pertinent portion of any

constitutional provisions, treaties,

statutes, regulations, agency and

board decisions, court decisions,

excerpts from transcripts of

testimony, and documentary

exhibits.

(2) Reply Brief or Memorandum. Except

by leave of the court on motion, a reply

brief or memorandum must not exceed

20 pages (30 pages when a response to a

motion is included).

(3) Relying on a Previously Filed Brief or

Memorandum. A party must not

incorporate a brief or memorandum by

reference; the court will disregard any

such incorporation. To rely upon a

previously filed brief or memorandum, a

party must:

(A) reproduce the brief or memorandum

(or, when appropriate, the selected

excerpts of such document) in an

appendix; 

(B) identify the total number of pages

considered relevant in a footnote

included on the first page of the

brief or memorandum; and

(C) include the number of pages

identified when calculating the

maximum allowable pages set forth

in RCFC 5.4(b)(1) and (2). 

(As revised and reissued May 1, 2002; as

renumbered Nov. 15, 2007; as amended Nov. 3,

2008.) 
13 RCFC 5.5

Rules Committee Notes

2002 Revision

RCFC 5.2 has no FRCP counterpart. The rule

formerly appeared in these rules as RCFC 83.1.

The renumbering of RCFC 83.1 was intended to

reflect its more logical placement in the

organizational structure of the court’s rules.

Several changes have been made to the rule;

they include:

First, the deletion from subdivision (a) of

language identifying the plaintiff’s brief or

memorandum as “the first brief or memorandum”

normally to be filed.

Second, subparagraphs (A) and (G) of

subdivision (a) were revised to indicate that any

index to a separate appendix should be included

both at the beginning of the appendix and at the

beginning of the accompanying brief or

memorandum.

Third, subdivision (b)(4), relating to “a motion

for leave to exceed the page limitation,” was

deemed unduly burdensome and was therefore

stricken. 

2007 Amendment

RCFC 5.3 formerly appeared in these rules as

RCFC 5.2 and has been renumbered in light of the

adoption of FRCP 5.1, effective December 1, 2006,

to preserve the consistency in numbering systems

between the court’s rules and the FRCP. 

2008 Amendment

The language of RCFC 5.4 has been amended

to conform to the general restyling of the FRCP. 

In addition, to improve organizational

structure, the subdivision dealing with the contents

of cross-motions, formerly included in these rules

as RCFC 7.2(e) (“Time for Filing”), has been

included as paragraph 5 to RCFC 5.4(a). 

RCFC 5.4 formerly appeared in these rules as

RCFC 5.3 and has been renumbered to

accommodate the court’s adoption of FRCP 5.2

(which became effective December 1, 2007) and to

preserve the consistency in numbering systems

between the court’s rules and the FRCP. 

Rule 5.5. Format of Filings and Required

Information

(a) In General. All papers filed with the clerk,

and, where applicable, all documents filed

electronically, must conform to the

requirements of this rule.

(b) Duplication. Any method of duplication

must produce clear black images on white

paper and must conform to the requirements

of 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 papers

included as exhibits; and 

(C) must be of sufficient quality that the

typed material does not bleed

through the page. 

(2) Type Size. The type size for text and

footnotes must be no smaller than 12

point.

(3) Margins. Margins must not be less than

1 inch on each side. 

(4) Spacing. Text must be double spaced,

except that quoted and indented material

and footnotes may be single spaced.

(5) Binding. A paper filing of 50 or fewer

pages must be stapled in the upper

lefthand corner. A paper filing

exceeding 50 pages must be bound or

attached along the entire lefthand margin

in book form and must have legible

margins. 

(6) Numbering. All pages, including

appendices, must be numbered in large

distinct type that appears in the center of

the bottom margin of the page. 

(d) Number of Copies.

(1) Complaint. Plaintiff must file an

original and 7 copies of the complaint,

attaching a completed cover sheet to the

original (shown in Form 2 of the

Appendix of Forms). 
RCFC 5.5 (cont.) 14

(2) Subsequent Filings. Except in an

electronic case under Appendix E or in

an appeal under RCFC 58.1, a party must

file an original and 2 copies of any filing.

(3) Filings in a Congressional Reference

Case. In a congressional reference case,

a party must file an original and 4 copies

of any filing.

(e) Date. Each paper must bear the date it is

signed on the signature page. 

(f) Telephone and Facsimile Numbers. The

telephone and facsimile numbers (including

area code) of the attorney of record must

appear directly below the signature line of

every filing.

(g) Name of Judge. In all filings other than the

complaint, the name of the judge assigned to

the case must be included directly below the

docket number.

(h) Bid Protest Cases. The words “Bid Protest”

must be included in the caption of all filings

directly below the name of the court. 

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

July 1, 2004; as renumbered Nov. 15, 2007; as

amended Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

New RCFC 5.3 has no FRCP counterpart.

The rule formerly appeared in these rules as RCFC

82 and 83. The consolidation and renumbering of

RCFC 82 and 83 were intended to reflect their

more logical placement in the organizational

structure of the court’s rules.

In addition to the renumbering, the text of

former RCFC 82 has been modified in several

respects: First, subdivision (a) has been modified

by deleting the last sentence of that subdivision

which read, “[t]he clerk shall refuse to file any

paper which is not in substantial conformity with

this rule or not in clear type.” The deletion

corresponds to the change made in RCFC 5(e)

directing that “[t]he clerk shall not refuse to accept

for filing any paper presented for that purpose

solely because it is not presented in proper form.”

However, as noted in the Advisory Committee

Note to FRCP 5(e), the “clerk may of course advise

a party or counsel that a particular instrument is not

in proper form, and may be directed to so inform

the court.”

Second, subdivision (c) has been modified to

eliminate certain redundancies, to fix the type size,

and to clarify binding and pagination requirements.

Appendices will now be subject to pagination. The

binding requirement changes were intended to

discourage rubber bands, paper clips, and other

non-secure binding. 

Third, former subdivision (e), now subdivision

(f), has been amended to include a requirement

listing a facsimile number for the attorney of

record. 

Fourth, subdivision (d) was added to this rule

to incorporate the “number of copies” requirement

that formerly appeared as RCFC 83, as well as the

requirement formerly found in RCFC 3(c)

regarding the number of copies to be filed when

filing a complaint. 

Finally, subdivision (g) was also added. The

text of this subdivision formerly appeared as part

of RCFC 10(a). 

2004 Amendment

Subdivision (h) has been added to the text of

RCFC 5.3 to facilitate case management and

administrative record-keeping requirements. 

2007 Amendment

RCFC 5.4 formerly appeared in these rules as

RCFC 5.3 and has been renumbered in light of the

adoption of FRCP 5.1, effective December 1, 2006,

to preserve the consistency in numbering systems

between the court’s rules and the FRCP.

2008 Amendment

The language of RCFC 5.5 has been amended

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 as

specifically noted. 

Finally, the sentences “Such pages need not be
15 RCFC 6

justified on the right margin” from former

RCFC 5.4(c) and “All copies shall be identical, or

otherwise conformed, to the original” from former

RCFC 5.4(d) have been deleted as unnecessary.

RCFC 5.5 formerly appeared in these rules as

RCFC 5.4 and has been renumbered to

accommodate the court’s adoption of FRCP 5.2

(which became effective December 1, 2007) and to

preserve the consistency in numbering systems

between the court’s rules and the FRCP. 

Rule 6. Computing and Extending Time; Time

for Motion Papers

(a) Computing Time. The following rules apply

in computing any time period specified in

these rules, in any court order, or in any

statute that does not specify a method of

computing time.

(1) Period Stated in Days or a Longer Unit.

When the period is stated in days or 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; and

(C) include the last day of the period,

but if the last day is a Saturday,

Sunday, or legal holiday, the period

continues to run until the end of the

next day that is not a Saturday,

Sunday, or legal holiday. 

(2) Period Stated in Hours. When the

period is stated in hours:

(A) begin counting immediately on the

occurrence of the event that triggers

the period;

(B) count every hour, including hours

during intermediate Saturdays,

Sundays, and legal holidays; and

(C) if the period would end on a

Saturday, Sunday, or legal holiday,

the period continues to run until the

same time on the next day that is

not a Saturday, Sunday, or legal

holiday.

(3) Inaccessibility of the Clerk’s Office.

Unless the court orders otherwise, if the

clerk’s office is inaccessible: 

(A) on the last day for filing under

RCFC 6(a)(1), then the time for

filing is extended to the first

accessible day that is not a

Saturday, Sunday, or legal holiday;

or

(B) during the last hour for filing under

RCFC 6(a)(2), then the time for

filing is extended to the same time

on the first accessible day that is not

a Saturday, Sunday, or legal

holiday.

(4) “Last Day” Defined. Unless a different

time 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 to close,

subject to the provision for afterhours filing permitted under RCFC

77.1(a).

(5) “Next Day” Defined. The “next day” is

determined by continuing to count

forward when the period is measured

after an event and backward when

measured before an event.

(6) “Legal Holiday” Defined. “Legal

holiday” means:

(A) the day set aside by statute for

observing New Year’s Day,

Inauguration Day, Martin Luther

King Jr.’s Birthday, Washington’s

Birt hd ay, Memorial Day,

Independence Day, Labor Day,

Columbus Day, Veterans’ Day,

Thanksgiving Day, or Christmas

Day; and

(B) any other day declared a holiday by

the President or Congress.

(b) Extending Time.

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

be done within a specified time, the court
RCFC 6.1 16

may, for good cause, extend the time:

(A) with or without motion or notice if

the court acts, or if a request is

made, before the original time or its

extension expires; or 

(B) on motion made after the time has

expired if the party failed to act

because of excusable neglect.

(2) Exceptions. The court must not extend

the time to act under RCFC 52(b), 59(b),

(d), and (e), and 60(b).

(c) Motions, Notices of Hearing, and

Affidavits. [Not used.]

(d) Additional Time After Certain Kinds of

Service. When a party may or must act within

a specified time after service and service is

made under RCFC 5(b)(2)(C), (D), (E), or (F),

3 days are added after the period would

otherwise expire under RCFC 6(a).

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

June 20, 2006, Nov. 3, 2008, Jan. 11, 2010.) 

Rules Committee Notes

2002 Revision

RCFC 6 has been changed to conform to

FRCP 6. In particular, that part of subdivision (b)

which formerly specified the content of motions for

enlargement has been moved to a new RCFC 6.1,

“Enlargements of Time.”

2006 Amendment

Subdivision (e) has been amended to reflect

the corresponding changes to FRCP 6(e) that

became effective December 1, 2005.

2008 Amendment

The language ofRCFC 6 has been amended to

conform to the general restyling of the FRCP. 

2010 Amendment

RCFC 6 has been amended in accordance with

the corresponding changes to FRCP 6 that became

effective December 1, 2009. These changes govern

the computation of any time period specified in

these rules, in any court order, or in any statute that

does not specify a method of computing time. For

a comprehensive explanation of the timecomputation changes, see the 2009 Committee

Note to FRCP 6.

In addition, the definition of “last day” in

subparagraph (a)(4)(B) has been amended to

include a reference to the after-hours filing

permitted under RCFC 77.1(a).

Finally, paragraph (b)(2) has been amended to

delete 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 any

previously filed motions for enlargement;

and 

(4) the reason for the enlargement. 

(b) Communication With Opposing Counsel.

The moving party must make a reasonable

effort to discuss the motion with opposing

counsel and must indicate in the motion

whether an opposition will be filed, or, if

opposing counsel cannot be consulted, an

explanation of the efforts that were made to

do so.

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

New RCFC 6.1 has no FRCP counterpart.

The text of the new rule formerly appeared in these

rules as part of RCFC 6(b). However, the language

in former RCFC 6(b), which addressed the content

of the reasons offered in support of a motion for

enlargement of time, has been stricken as

unnecessary. 

2008 Amendment

The language of RCFC 6.1 has been amended
17 RCFC 7, 7.1, and 7.2

to conform to the general restyling of the FRCP. 

TITLE III. PLEADINGS AND MOTIONS

Rule 7. Pleadings Allowed; Form of Motions

and 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 order

must be made by motion. Any motion,

objection, or response may be

accompanied by a brief or memorandum

and, if necessary, affidavits supporting

the 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 and

other matters of form in pleadings apply

to motions and other papers.

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

Minor grammatical changes have been

introduced.

2008 Amendment

The language of RCFC 7 has been amended to

conform to the general restyling of the FRCP. 

In addition, the provision included in former

paragraph (b)(1) stating that a motion may “be

accompanied by a proposed order” has been

omitted in favor of full conformance with FRCP 7.

Rule 7.1. Disclosure Statement

(a) Who Must File; Contents. A

nongovernmental corporate party must file 2

copies of a disclosure statement that:

(1) identifies any parent corporation and any

publicly held corporation owning 10% or

more 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 to

the court; and

(2) promptly file a supplemental statement if

any required information changes. 

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

Rules Committee Notes

2003 Adoption

RCFC 7.1 has been added to correspond to the

adoption of the same rule in the FRCP. 

2008 Amendment

The language of RCFC 7.1 has been amended

to conform to the general restyling of the FRCP. 

Rule 7.2.Time for Filing

(a) In General.

(1) Responses and Objections. Unless

otherwise provided in these rules or by

order of the court, a response or an

objection to a written motion must be

filed within 14 days after service of the

motion.

(2) Replies. A reply to a response or an

objection may be filed within 7 days

after 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
RCFC 8 18

motions must be filed within 28 days

after service of the motion.

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

filed within 14 days after service of the

response.

(c) Cross-Motions. 

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

filed within the time allowed for

responses in RCFC 7.2(a) and (b).

(2) Response and Reply. A party will have

the same amount of time to respond and

reply to a cross-motion as to an original

motion.

(d) Motions Filed by Leave of Court. The time

for filing a response to a motion filed by leave

of court on motion by a party will run from

the date of filing and not from the date of

service.

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

Sept. 15, 2003, June 20 2006, Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision and 2003 Amendment

RCFC 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 its

rules, as RCFC 7.1. The first renumbering of the

rule (from RCFC 83.2 to RCFC 7.1) was intended

to reflect its more logical placement in the

organizational structure of the court’s rules; the

second renumbering (from RCFC 7.1 to RCFC 7.2)

accommodates the court’s adoption of FRCP 7.1

effective December 1, 2002, and preserves the

consistency in numbering systems between the

court’s rules and the FRCP. 

2006 Amendment

A cross-reference in subdivision (c) was

revised to accord with the addition of RCFC 52.1.

2008 Amendment

The language of RCFC 7.2 has been amended

to conform to the general restyling of the FRCP. 

In addition, to improve organizational

structure, the subdivision dealing with the contents

of cross-motions, formerly included in these rules

as 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 jurisdiction

and the claim needs no new jurisdictional

support;

(2) a short and plain statement of the claim

showing that the pleader is entitled to

relief; and

(3) a demand for the relief sought, which

may include relief in the alternative or

different 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 asserted

against it; and

(B) admit or deny the allegations

asserted against it by an opposing

party.

(2) Denials—Responding to the Substance.

A denial must fairly respond to the

substance of the allegation.

(3) General and Specific Denials. A party

that intends in good faith to deny all the

allegations of a pleading—including the

jurisdictional grounds—may do so by a

general denial. A party that does not

intend to deny all the allegations must

either specifically deny designated

allegations or generally deny all except

those specifically admitted. 

(4) Denying Part of an Allegation. A party

that intends in good faith to deny only

part of an allegation must admit the part

that is true and deny the rest.

(5) Lacking Knowledge or Information. A

party that lacks knowledge or

information sufficient to form a belief

about the truth of an allegation must so
19 RCFC 9

state, and the statement has the effect of

a denial. 

(6) Effect of Failing to Deny. An

allegation—other than one relating to the

amount of damages—is admitted if a

responsive pleading is required and the

allegation is not denied. If a responsive

pleading is not required, an allegation is

considered denied or avoided.

(c) Affirmative Defenses.

(1) In General. In responding to a pleading,

a party must affirmatively state any

avoidance 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 party

mistakenly designates a defense as a

counterclaim, or a counterclaim as a

defense, the court must, if justice

requires, treat the pleading as though it

were correctly designated, and may

impose 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 technical

form is required.

(2) Alternative Statements of a Claim or

Defense. A party may set out 2 or more

statements of a claim or defense

alternatively or hypothetically, either in

a single count or defense or in separate

ones. If a party makes alternative

statements, the pleading is sufficient if

any one of them is sufficient.

(3) Inconsistent Claims or Defenses. A

party may state as many separate claims

or defenses as it has, regardless of

consistency.

(e) Construing Pleadings. Pleadings must be

construed so as to do justice.

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

Nov. 3, 2008, Jan. 11, 2010.) 

Rules Committee Notes

2002 Revision

Minor changes have been made in

subdivisions (b) and (c) to conform to FRCP 8. In

addition, subdivision (c) was amended to require

the pleading, as an affirmative defense, of

assumption of risk and contributory negligence.

Although these defenses are typically associated

with tort claims (i.e., with claims outside this

court’s jurisdiction), there can be circumstances in

which reliance on these defenses would be

appropriate, for example, in congressional

reference cases, in some aspects of contract

litigation, and with respect to counterclaims

asserted pursuant to 28 U.S.C. § 2508. 

2008 Amendment

The language ofRCFC8 has been amended to

conform to the general restyling of the FRCP. 

2010 Amendment

RCFC 8(c)(1) has been amended by deleting

“discharge in bankruptcy” from the list of

affirmative defenses in accordance with the

corresponding change to FRCP 8 that became

effective December 1, 2009.

Rule 9. Pleading Special Matters

(a) Capacity or Authority to Sue; Legal

Existence.

(1) In General. Except when required to
RCFC 9 (cont.) 20

show that the court has jurisdiction, a

pleading need not allege: 

(A) a party’s capacity to sue or be sued;

(B) a party’s authority to sue or be sued

in a representative capacity; or 

(C) the legal existence of an organized

association of persons that is made

a party.

(2) Raising Those Issues. To raise any of

those issues, a party must do so by a

specific denial, which must state any

supporting facts that are peculiarly

within the party’s knowledge. 

(b) Fraud or Mistake; Conditions of Mind. In

alleging fraud or mistake, a party must state

with particularity the circumstances

constituting fraud or mistake. Malice, intent,

knowledge, and other conditions of a person’s

mind may be alleged generally. 

(c) Conditions Precedent. In pleading

conditions precedent, it suffices to allege

generally that all conditions precedent have

occurred or been performed. But when

denying that a condition precedent has

occurred or been performed, a party must do

so with particularity. 

(d) Official Document or Act. In pleading an

official document or official act, it suffices to

allege that the document was legally issued or

the act legally done.

(e) Judgment. In pleading a judgment or

decision of a domestic or foreign court, a

judicial or quasi-judicial tribunal, or a board

or officer, it suffices to plead the judgment or

decision without showing jurisdiction to

render it.

(f) Time and Place. An allegation of time or

place is material when testing the sufficiency

of a pleading.

(g) Special Damages. If an item of special

damage is claimed, it must be specifically

stated. 

(h) Admiralty or Maritime Claim. [Not used.]

(i) Inverse Condemnation Claim. In pleading

a claim for just compensation under the Fifth

Amendment of the United States Constitution,

a party must identify the specific property

interest alleged to have been taken by the

United States. 

(j) Citation to Statutes, Regulations, and

Orders. In pleading a claim founded on a

statute, regulation, or executive order, a party

must include the citation to the act of

Congress, regulation of an executive

department or agency, or Executive Order of

the President on which the claim is founded.

(k) Contract or Treaty. In pleading a claim

founded on a contract or treaty, a party must

identify the substantive provisions of the

contract or treaty on which the party relies. In

lieu of a description, the party may annex to

the complaint a copy of the contract or treaty,

indicating the relevant provisions.

(l) Patent Claim. In pleading a patent

infringement, a party must describe the patent

or patents alleged to be infringed. 

(m) Tax Refund Claim. In pleading a claim for

a 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 is

sought;

(B) the amount, date, and place of each

payment to be refunded;

(C) the date and place the return was

filed, if any;

(D) the name, address, and

identification number (under seal)

of the taxpayer(s) appearing on the

return;

(E) the date and place the claim for

refund was filed; and

(F) the identification number (under

seal) of each plaintiff, if different

from the identification number of

the taxpayer. 

(n) Ownership of a Claim; Assignment. In

pleading a claim or part of a claim, ownership

of which was acquired by assignment or other

transfer, a party must include a statement

describing when and upon what consideration

the assignment or transfer was made. 
21 RCFC 10 and 11

(o) Action by Another Tribunal or Body. In

relying on an action by another tribunal or

body, a party must describe the action taken

on the claim by Congress, a department or

agency of the United States, or another court.

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

Subdivision (a) (relating to “Capacity”) has

been changed to conform to FRCP 9.

Subdivision (h)(6) (relating to special

requirements applicable to complaints in “Tax

Refund Suits”) was amended by prescribing, as

additional information to be included as part of a

tax refund complaint, the following: (i) the

taxpayer’s or filer’s identification number; and (ii)

a copy of the claim for refund. 

Subdivision (h)(7) was added as a means to

clarify the nature of the property interest asserted

to have been taken in an inverse condemnation

action. 

2008 Amendment

The language ofRCFC9 has been amended to

conform to the general restyling of the FRCP. 

In addition, former subdivision (h) (“Special

Matters Required in Complaint”), comprised of

paragraphs (1) through (7), has been reorganized as

separate subdivisions (i) through (o), and a

requirement was added to new subdivision (m)

(“Tax Refund Claim”) directing that taxpayer

identification 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, a

title, a file number, and a RCFC 7(a)

designation. The title of the complaint must

name all the parties (see RCFC 20(a)), with

the United States designated as the party

defendant; the title of other pleadings, after

naming the first party on each side, may refer

generally to other parties.

(b) Paragraphs; Separate Statements. A party

must state its claims or defenses in numbered

paragraphs, each limited as far as practicable

to a single set of circumstances. A later

pleading may refer by number to a paragraph

in an earlier pleading. If doing so would

promote clarity, each claim founded on a

separate transaction or occurrence—and each

defense other than a denial—must be stated in

a separate count or defense.

(c) Adoption by Reference; Exhibits. A

statement in a pleading may be adopted by

reference elsewhere in the same pleading or in

any other pleading or motion. A copy of a

written instrument that is an exhibit to a

pleading is part of the pleading for all

purposes.

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 10 has been changed in minor respects

in order to achieve closer textual conformity with

FRCP 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 party

shall not be deemed to have admitted the truth of

the allegations in such exhibit merely because the

adverse party has failed to deny them explicitly”)

was omitted as not in conformity with the FRCP

and because it was deemed unnecessary. 

2008 Amendment

The 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 the

attorney of record in the attorney’s name—or

by a party personally if the party is
RCFC 11 (cont.) 22

unrepresented. The paper must state the

signer’s address, e-mail address, and

telephone number. Unless a rule or statute

specifically states otherwise, a pleading need

not be verified or accompanied by an

affidavit. The court must strike an unsigned

paper unless the omission is promptly

corrected after being called to the attorney’s

or party’s attention. 

(b) Representations to the Court. By presenting

to the court a pleading, written motion, or

other paper—whether by signing, filing,

submitting, or later advocating it—an attorney

or unrepresented party certifies that to the best

of the person’s knowledge, information, and

belief, formed after an inquiry reasonable

under the circumstances:

(1) it is not being presented for any improper

purpose, such as to harass, cause

unnecessary delay, or needlessly increase

the cost of litigation;

(2) the claims, defenses, and other legal

contentions are warranted by existing

law or by a nonfrivolous argument for

extending, modifying, or reversing

existing law or for establishing new law;

(3) the factual contentions have evidentiary

support or, if specifically so identified,

will likely have evidentiary support after

a reasonable opportunity for further

investigation or discovery; and

(4) the denials of factual contentions are

warranted on the evidence or, if

specifically so identified, are reasonably

based on belief or a lack of information.

(c) Sanctions.

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

reasonable opportunity to respond, the

court determines that RCFC 11(b) has

been violated, the court may impose an

appropriate sanction on any attorney, law

firm, or party that violated the rule or is

responsible for the violation. Absent

exceptional circumstances, a law firm

must be held jointly responsible for a

violation committed by its partner,

associate, or employee.

(2) Motion for Sanctions. A motion for

sanctions must be made separately from

any other motion and must describe the

specific conduct that allegedly violates

RCFC 11(b). The motion must be served

under RCFC 5, but it must not be filed or

presented to the court if the challenged

paper, claim, defense, contention, or

denial is withdrawn or appropriately

corrected within 21 days after service or

within another time the court sets. If

warranted, the court may award to the

prevailing party the reasonable expenses,

including attorney’s fees, incurred for the

motion.

(3) On the Court’s Initiative. On its own,

the court may order an attorney, law

firm, or party to show cause why conduct

specifically described in the order has

not violated RCFC 11(b).

(4) Nature of a Sanction. A sanction

imposed under this rule must be limited

to what suffices to deter repetition of the

conduct or comparable conduct by others

similarly situated. The sanction may

include nonmonetary directives; an order

to pay a penalty into court; or, if imposed

on motion and warranted for effective

deterrence, an order directing payment to

the movant of part or all of the

reasonable attorney’s fees and other

expenses directly resulting from the

violation.

(5) Limitations on Monetary Sanctions.

The court must not impose a monetary

sanction:

(A) against a represented party for

violating RCFC 11(b)(2); or

(B) on its own, unless it issued the

show-cause order under RCFC

11(c)(3) before voluntary dismissal

or settlement of the claims made by

or against the party that is, or whose

attorneys are, to be sanctioned.

(6) Requirements for an Order. An order
23 RCFC 12

imposing a sanction must describe the

sanctioned conduct and explain the basis

for the sanction.

(d) Inapplicability to Discovery. This rule does

not apply to disclosures and discovery

requests, responses, objections, and motions

under RCFC 26 through 37. 

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

The changes to RCFC 11 reflect the

corresponding revision of FRCP 11 that was

introduced in December 1993. For a detailed

explanation of the reasons for revision of FRCP 11,

see 28 U.S.C.A. Rule 11 Advisory Committee

Notes (West Supp. 2001). 

2008 Amendment

The language of RCFC 11 has been amended

to conform to the general restyling of the FRCP. 

Rule 12. Defenses and Objections: When and

How Presented; Motion for Judgment

on the Pleadings; Consolidating

Motions; Waiving Defenses; Pretrial

Hearing

(a) Time to Serve a Responsive Pleading.

(1) In General

(A) The United States must file an

answer to a complaint within 60

days after being served with the

complaint. 

(B) If the answer contains a

counterclaim, offset, or plea of

fraud, a party must file an answer to

the counterclaim, and may file a

reply to the offset or plea of fraud,

within 21 days after being served

with the answer.

(C) If a reply to an answer or a

responsive pleading to a third-party

complaint or answer is ordered by

the court, a party must file the reply

or responsive pleading within 21

days after being served with the

order, unless the order specifies a

different time.

(2) United States and Its Agencies, Officers,

or Employees Sued in an Official

Capacity. [Not used.]

(3) United States Officers or Employees

Sued in an Individual Capacity. [Not

used.]

(4) Effect of a Motion. Unless the court sets

a different time, serving a motion under

this rule or RCFC 56 alters these periods

as follows:

(A) if the court denies the motion, in

whole or in part, or postpones its

disposition until trial, or if a party

withdraws the motion, the

responsive pleading must be filed

by the later of:

(i) 14 days after notice of the

court’s action or the motion’s

withdrawal; or

(ii) the date the response otherwise

would have been due.

(B) if the court grants a motion for a

more definite statement, the

responsive pleading must be served

within 14 days after the more

definite statement is served.

(b) How to Present Defenses. Every defense to

a claim for relief in any pleading must be

asserted in the responsive pleading if one is

required. But a party may assert the following

defenses 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 must

be made before pleading if a responsive

pleading is allowed. If a pleading sets out a
RCFC 12 (cont.) 24

claim for relief that does not require a

responsive pleading, an opposing party may

assert at trial any defense to that claim. No

defense or objection is waived by joining it

with one or more other defenses or objections

in a responsive pleading or in a motion.

(c) Motion for Judgment on the Pleadings.

After the pleadings are closed—but early

enough not to delay trial—a party may move

for judgment on the pleadings.

(d) Result of Presenting Matters Outside the

Pleadings. If, on a motion under RCFC

12(b)(6) or 12(c), matters outside the

pleadings are presented to and not excluded

by the court, the motion must be treated as

one for summary judgment under RCFC 56.

All parties must be given a reasonable

opportunity to present all the material that is

pertinent to the motion.

(e) Motion for a More Definite Statement. A

party may move for a more definite statement

of a pleading to which a responsive pleading

is allowed but which is so vague or ambiguous

that the party cannot reasonably prepare a

response. The motion must be made before

filing a responsive pleading and must point

out the defects complained of and the details

desired. If the court orders a more definite

statement and the order is not obeyed within

14 days after notice of the order or within the

time the court sets, the court may strike the

pleading or issue any other appropriate order.

(f) Motion to Strike. The court may strike from

a pleading an insufficient defense or any

redundant, immaterial, impertinent, or

scandalous 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 a

response is not allowed, within 21 days

after being served with the pleading.

(g) Joining Motions.

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

may be joined with any other motion

allowed by this rule.

(2) Limitation on Further Motions. Except

as provided in RCFC 12(h)(2) or (3), a

party that makes a motion under this rule

must not make another motion under this

rule raising a defense or objection that

was available to the party but omitted

from its earlier motion.

(h) Waiving and Preserving Certain Defenses.

(1) When Some Are Waived. A party

waives any defense listed in RCFC

12(b)(2)-(5) by:

(A) omitting it from a motion in the

circumstances described in RCFC

12(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 amendment

allowed by RCFC 15(a)(1) as a

matter of course.

(2) When to Raise Others. Failure to state a

claim upon which relief can be granted,

to join a person required by RCFC 19(b),

or to state a legal defense to a claim may

be 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. If

the court determines at any time that it

lacks subject-matter jurisdiction, the

court 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 by

motion—and a motion under RCFC 12(c)

must be heard and decided before trial unless

the court orders a deferral until trial. 

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

Nov. 3, 2008, Jan. 11, 2010.) 

Rules Committee Notes

2002 Revision

To more closely parallel FRCP 12,
25 RCFC 13

subdivisions (b) and (h) of the court’s rule have

been enlarged by adding the defense of

“insufficiency of service of process” and the

defense of “failure to join a party indispensable

under RCFC 19.” Further, as an aid to

practitioners, most of whom are familiar with

practice in the district courts, the enumeration of

defenses in subdivision (b) has been brought into

conformity with the corresponding subdivision of

the FRCP. Finally, subdivision (i) (“Suspension of

Discovery”) has been deleted. That subdivision is

not part of the comparable FRCP, and its subject

matter is more appropriately dealt with as a case

management matter. 

2008 Amendment

The language of RCFC 12 has been amended

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 reworded

to provide that while a reply to an answer

containing a counterclaim is mandatory, a reply to

an answer containing an offset or a plea of fraud is

not (unless ordered by the court). This rewording,

although a departure from past practice, was

deemed advisable in order to avoid the

consequences of an unintended admission caused

by a party’s inadvertent failure to respond to a

defense of offset or plea of fraud that was not

clearly designated as such in the answer. 

2010 Amendment

The time periods of 10 and 20 days formerly

set forth in RCFC 12 have been changed to 14 and

21 days, respectively, in accordance with the

corresponding changes to FRCP 12 that became

effective December 1, 2009.

Rule 13. Counterclaim

(a) Compulsory Counterclaim.

(1) In General. A pleading must state as a

counterclaim any claim that—at the time

of its service—the pleader has against an

opposing party if the claim:

(A) arises out of the transaction or

occurrence that is the subject matter

of the opposing party’s claim; and

(B) does not require adding another

party over whom the court cannot

acquire jurisdiction. 

(2) Exceptions. The pleader need not state

the claim if, when the action was

commenced, the claim was the subject of

another pending action.

(b) Permissive Counterclaim. A pleading may

state as a counterclaim against an opposing

party any claim that is not compulsory.

(c) Relief Sought in a Counterclaim. A

counterclaim need not diminish or defeat the

recovery sought by the opposing party. It may

request relief that exceeds in amount or differs

in kind from the relief sought by the opposing

party.

(d) Counterclaim Against the United States.

These rules do not expand the right to assert a

counterclaim—or to claim a credit—against

the United States or a United States officer or

agency.

(e) Counterclaim Maturing or Acquired After

Pleading. The court may permit a party to

file a supplemental pleading asserting a

counterclaim that matured or was acquired by

the 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 RCFC

42(b), it may enter judgment on a

counterclaim under RCFC 54(b) when it has

jurisdiction to do so, even if the opposing

party’s claims have been dismissed or

otherwise resolved. 

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

Nov. 3, 2008, Jan. 11, 2010.) 

Rules Committee Notes

2002 Revision

Subdivision (d) has been changed to add the

language of FRCP 13(d) in recognition of the fact

that there is no statutory bar to third-party

defendants filing counterclaims against the United
RCFC 14 26

States. See 41 U.S.C. § 114 and RCFC 14. Other

significant differences between this version and the

FRCP have been preserved as necessary in light of

the fact that the United States is the only defendant

in this court.

2008 Amendment

The language of RCFC 13 has been amended

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 by

a 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 Amendment

Former subdivision (f) has been deleted in

accordance with the corresponding change to

FRCP 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, move

the court to summon a nonparty who is

or may be liable to the United States for

the recovery of money paid by the United

States in respect of the transaction or

matter that constitutes the subject matter

of the suit.

(2) Accompanying Complaint.A motion for

summons must be accompanied by a

complaint setting forth the claim or

contingent claim that the United States is

asserting against the nonparty. 

(3) Issuing the Summons. If the court

grants a motion for summons, the clerk

must issue an original and one copy of

the summons. 

(4) Contents of the Summons. A summons

must:

(A) contain the name of the person

summoned; 

(B) state that the United States is

asserting a claim against the person

summoned as described in the

accompanying complaint; 

(C) identify the time within which the

person summoned is required to

appear and answer the complaint; 

(D) list all pleadings that have been

filed in the suit; and 

(E) contain, as attachments provided by

the United States, copies of all

pleadings. 

(5) Serving the Summons. Upon issuing the

summons, the clerk must deliver the

summons to the Attorney General for

personal service upon the person

summoned. The return of such service

must be made directly to the clerk. 

(6) Third-Party Defendant’s Claims and

Defenses. The person served with the

summons and third-party complaint,

referred to as the “third-party defendant”:

(A) must assert any defense against the

third-party plaintiff’s claim under

RCFC 12;

(B) must assert any counterclaim

against the third-party plaintiff

under RCFC 13(a); and 

(C) may assert against the plaintiff any

defense that the third-party plaintiff

has 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 the

legal capacity to sue or to be sued who is

alleged to have an interest in the subject

matter 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 in

the pending action. 
27 RCFC 14 (cont.)

(B) Timing. 

(i) A plaintiff must file any

motion for notice at the time

the complaint is filed.

(ii) The United States must file

any motion for notice on or

before the date the answer is

required to be filed.

(iii) For good cause shown, the

court may allow a motion for

notice to be filed at a later

time. 

(3) Issuing a Notice; Contents. 

(A) When the court, on motion or on its

own, orders a nonparty to be

notified, the clerk must issue an

original 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 an

appropriate pleading pursuant

to RCFC 14(c)(1)(A); and

(iii) state that the notice is

accompanied by copies of all

pleadings that have been filed

in the suit. 

(4) Serving a Notice Issued on Motion of a

Party. When notice is ordered by the

court on motion of a party:

(A) the clerk must deliver the notice to

the moving party for service, at the

moving party’s expense, on the

person to be notified;

(B) the moving party must serve the

notice, together with copies of all

pleadings that have been filed in the

suit, by registered or certified mail,

return receipt requested; and 

(C) the return of such service must be

made directly to the clerk and

include a copy of the notice with

return receipt attached. 

(5) Serving a Notice Issued on the Court’s

Own Initiative. When notice is ordered

by the court on its own initiative:

(A) each party must, at the clerk’s

request, deliver to the clerk copies

of 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 Generalfor service in

accordance with RCFC

14(b)(4)(B) and (C).

(6) Serving a Person Outside the United

States. When serving a notice on a

person in a foreign country, proof of

service must be made in accordance with

FRCP 4(f). 

(c) Third Parties Pleadings.

(1) In General. 

(A) A person served with a notice

issued under this rule may file an

appropriate pleading setting forth

the person’s interest in the subject

matter of the litigation.

(B) A third party’s pleading must

comply with the requirements of

RCFC 5, 5.2, 5.3, 5.5, 7, 7.1, and

7.2 except that a third party need

only file an original and 2 copies of

its complaint instead of the 7 copies

required by RCFC 5.5(d).

(2) Time. A third-party’s pleading must be

filed within 42 days after service of the

summons or notice issued pursuant to

this rule.

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

Nov. 3, 2008, Jan. 11, 2010.) 

Rules Committee Notes

2002 Revision

RCFC 14 has been substantially revised. The

order of the rule has been changed to distinguish

more clearly between the two types of actions it

permits with respect to entities that are not yet

parties to the suit. New subdivision (a) deals
RCFC 15 28

exclusively with summons to persons whom the

United States seeks to join formally as third

parties. The procedures for such summons are now

gathered under that subdivision. The same has

been done with respect to motions for notice to

inform non-parties of the pendency of the action

and the opportunity to join as parties. In addition,

language in the old rule with respect to service of

notice by publication, as well as the consequences

of failing to appear in response to such notice, have

been stricken. The law in this area is unsettled;

hence, the possibility existed that the manner and

method of notice prescribed by the rule might not

be found constitutionally adequate in all potential

situations.

It is important to note that RCFC 14's notice

requirements do not apply to the procedures for

notifying potential intervenors in procurement

protest cases filed pursuant to 28 U.S.C. § 1491(b).

RCFC 14 implements the authority set forth in 41

U.S.C. § 114. For service of third-party

complaints, see RCFC 5.

2008 Amendment

The language of RCFC 14 has been amended

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 comply

with the requirements of these rules with respect to

the filing of original complaints and answers,” the

rule specifies that a third-party pleading must

comply with RCFC 5, 5.2, 5.3, 5.5, 7, and 7.1. 

2010 Amendment

The requirement formerly set forth in RCFC

14(b)(2)(A) that a motion for notice must “contain,

as attachments, copies of all pleadings that have

been filed in the suit” has been stricken in favor of

requiring that such copies be provided by the

moving party when serving the notice under RCFC

14(b)(4)(B).

In addition, in the interest of internal

consistency, the phrase in RCFC 14(b)(3)(B)(ii)

“may seek intervention to assert an interest in the

suit” has been changed to read “may file an

appropriate pleading pursuant to RCFC

14(c)(1)(A).”

Rule 15. Amended and Supplemental Pleadings

(a) Amendments Before Trial.

(1) Amending as a Matter of Course. A

party may amend its pleadings once as a

matter of course within:

(A) 21 days after service; or

(B) if the pleading is one to which a

responsive pleading is required, 21

days after service of a responsive

pleading or 21 days after service of

a 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 with

the opposing party’s written consent or

the court’s leave. The court should

freely give leave when justice so

requires.

(3) Time to Respond. Unless the court

orders otherwise, any required response

to an amended pleading must be made

within the time remaining to respond to

the original pleading or within 14 days

after 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 not

within the issues raised in the pleadings,

the court may permit the pleadings to be

amended. The court should freely permit

an amendment when doing so will aid in

presenting the merits and the objecting

party fails to satisfy the court that the

evidence would prejudice that party’s

action or defense on the merits. The

court may grant a continuance to enable

the objecting party to meet the evidence.

(2) For Issues Tried by Consent. When an

issue not raised by the pleadings is tried

by the parties’ express or implied

consent, it must be treated in all respects

as if raised in the pleadings. A party may

move—at any time, even after
29 RCFC 16

judgment—to amend the pleadings to

conform them to the evidence and to

raise an unpleaded issue. But failure to

amend does not affect the result of the

trial of that issue.

(c) Relation Back of Amendments.

(1) When an Amendment Relates Back. An

amendment to a pleading relates back to

the date of the original pleading when:

(A) the law that provides the applicable

statute of limitations allows relation

back;

(B) the amendment asserts a claim or

defense that arose out of the

conduct, transaction, or occurrence

set out—or attempted to be set

out—in the original pleading; or

(C) the amendment changes the party or

the naming of the party against

whom a claim is asserted, if RCFC

15(c)(1)(B) is satisfied and if the

party to be brought in by

amendment:

(i) received such notice of the

action that it will not be

prejudiced in defending on the

merits; and

(ii) knew or should have known

that the action would have

been brought against it, but for

a mistake concerning the

proper party’s identity.

(2) Notice to the United States. [Not Used.]

(d) Supplemental Pleadings. On motion and

reasonable notice, the court may, on just

terms, permit a party to serve a supplemental

pleading setting out any transaction,

occurrence, or event that happened after the

date of the pleading to be supplemented. The

court may permit supplementation even

though the original pleading is defective in

stating a claim or defense. The court may

order that the opposing party plead to the

supplemental pleading within a specified time.

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

Nov. 3, 2008, Jan. 11, 2010.) 

Rules Committee Notes

2002 Revision

Significant changes were made to FRCP 15 in

1991; minor changes were made in 1993. Most

notable is the listing of criteria for relation back of

amendments in subdivision (c). RCFC 15 was

conformed to the comparable FRCP, with two

exceptions: first, the language in FRCP

subdivision (c)(3), relating to the timing of an

amendment changing the name of a party, was

omitted as inapplicable; and second, language in

subdivision (c) of the FRCP, relating to faulty

service on federal officers, also was omitted. 

2008 Amendment

The language of RCFC 15 has been amended

to conform to the general restyling of the FRCP. 

2010 Amendment

RCFC 15(a) has been amended in accordance

with the corresponding changes to FRCP 15(a) that

became effective December 1, 2009.

Rule 16. Pretrial Conferences; Scheduling;

Management

(a) Purposes of a Pretrial Conference. In any

action, the court may order the attorneys and

any unrepresented parties to appear for one or

more pretrial conferences for such purposes

as:

(1) expediting disposition of the action; 

(2) establishing early and continuing control

so that the case will not be protracted

because of lack of management;

(3) discouraging wasteful pretrial activities;

(4) improving the quality of 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 issue

a scheduling order:

(A) after receiving the parties’ Joint
RCFC 16 (cont.) 30

Preliminary Status Report under

Appendix A ¶ 3; or

(B) after consulting with the parties’

attorneys and any unrepresented

parties at a scheduling conference

or by telephone, mail, or other

means.

(2) Time to Issue. The court will issue the

scheduling order as soon as practicable

after the filing of the Joint Preliminary

Status Report, but in any event within 14

days after any preliminary scheduling

conference.

(3) Contents of the Order.

(A) Required Contents. The scheduling

order must limit the time to join

other parties, amend the pleadings,

complete discovery, and file

motions.

(B) Permitted Contents. The

scheduling order may:

(i) modify the timing of

disclosures under RCFC 26(a)

and 26(e)(1);

(ii) modify the extent of discovery;

(iii) provide for disclosure or

discovery of electronically

stored information;

(iv) include any agreements the

parties reach for asserting

claims of privilege or of

protection as trial-preparation

material after information is

produced;

(v) set dates for pretrial

conferences and for trial;

(vi) direct that the parties file any

of the submissions set out in

Appendix A ¶¶ 14, 15, 16, or

17; and

(vii) include other appropriate

matters.

(4) Modifying a Schedule. A schedule may

be modified only for good cause and

with 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 to

make stipulations and admissions about

all matters that can reasonably be

anticipated for discussion at a pretrial

conference. If appropriate, the court may

require that a party or its representative

be present or reasonably available by

other means to consider possible

settlement.

(2) Matters for Consideration. At any

pretrial conference, the court may

consider and take appropriate action on

the following matters:

(A) formulating and simplifying the

issues, and eliminating frivolous

claims or defenses;

(B) amending the pleadings if necessary

or desirable;

(C) obtainin g admissi ons an d

stipulations about facts and

documents to avoid unnecessary

proof, and ruling in advance on the

admissibility of evidence;

(D) avoiding unnecessary proof and

cumulative evidence, and limiting

the use of testimony under Federal

Rule of Evidence 702; 

(E) determining the appropriateness and

timing of summary adjudication

under RCFC 52.1 and 56; 

(F) controlling and scheduling

discovery, including orders

affecting disclosures and discovery

under RCFC 26 and RCFC 29

through 37; 

(G) identifying witnesses and

documents, scheduling the filing

and exchange of any pretrial briefs,

and setting dates for further

conferences and for trial;

(H) referring matters to a master;

(I) settling the case and using special

procedures to assist in resolving the

dispute;
31 RCFC 16 (cont.)

(J) determining the form and content of

the pretrial order;

(K) disposing of pending motions;

(L) adopting special procedures for

managing potentially difficult or

protracted actions that may involve

complex issues, multiple parties,

difficult legal questions, or unusual

proof problems;

(M) ordering a separate trial under

RCFC 42(b) of a claim,

counterclaim, third-party claim, or

particular issue;

(N) ordering the presentation of

evidence early in the trial on a

manageable issue that might, on the

evidence, be the basis for a

judgment as a matter of law or a

judgment on partial findings under

RCFC 52(c); 

(O) establishing a reasonable time limit

on the time allowed to present

evidence; and

(P) facilitating in other ways the just,

speedy, and inexpensive disposition

of the action. 

(d) Pretrial Orders. After any conference under

this rule, the court should issue an order

reciting the action taken. This order controls

the course of the action unless the court

modifies it. 

(e) Final Pretrial Conference and Orders. The

court may hold a final pretrial conference to

formulate a trial plan, including a plan to

facilitate the admission of evidence. The

conference must be held as close to the start

of trial as is reasonable, and must be attended

by at least one attorney who will conduct the

trial for each party and by any unrepresented

party. The court may modify the order issued

after a final pretrial conference only to

prevent 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 its

attorney: 

(A) fails to appear at a scheduling or

other pretrial conference;

(B) is substantially unprepared to

participate—or does not participate

in good faith—in the conference; or

(C) fails to obey a scheduling or other

pretrial order. 

(2) Imposing Fees and Costs. Instead of or

in addition to any other sanction, the

court must order the party, its attorney,

or both to pay the reasonable

expenses—including attorney’s

fees—incurred because of any

noncompliance with this rule, unless the

noncompliance was substantially

justified or other circumstances make an

award of expenses unjust. 

(g) Additional Pretrial Procedures. See

Appendix A to these rules (“Case

Management Procedure”) for additional

provisions controlling pretrial procedures. 

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

Nov. 15, 2007, Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 16 has been completely revised to

parallel the structure and content of its counterpart

in the FRCP. The limited number of changes to the

current FRCP reflect those deemed necessary to

accommodate procedural requirements particular to

this court. Except for these changes, the rule

shown conforms fully to the text of FRCP 16. 

2007 Amendment

Subdivision (b) of RCFC 16 has been

amended by the addition of subparagraphs 5 and 6

to reflect the corresponding changes to FRCP 16

2008 Amendment

The language of RCFC 16 has been amended

to conform to the general restyling of the FRCP. 

In addition, reference to RCFC 26(e)(1)
RCFC 17 32

(“Supplementing Disclosures and Responses”) was

added to RCFC 16(b)(3)(B)(i) to conform to the

FRCP. 

TITLE IV. PARTIES

Rule 17. Plaintiff and Defendant; Capacity

(a) Real Party in Interest.

(1) Designation in General. An action must

be prosecuted in the name of the real

party in interest. The following may sue

in their own names without joining the

person for whose benefit the action is

brought:

(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 for

another’s benefit; and

(G) a party authorized by statute.

(2) Action in the Name of the United States

for Another’s Use or Benefit. [Not

used.]

(3) Joinder of the Real Party in Interest.

The court may not dismiss an action for

failure to prosecute in the name of the

real party in interest until, after an

objection, a reasonable time has been

allowed for the real party in interest to

ratify, join, or be substituted into the

action. After ratification, joinder, or

substitution, the action proceeds as if it

had been originally commenced by the

real party in interest. 

(b) Capacity to Sue or Be Sued. Capacity to sue

or be sued is determined as follows:

(1) for an individual who is not acting in a

representative capacity, by the law of the

individual’s domicile;

(2) for a corporation, by the law under which

it was organized; and

(3) for all other parties, by the law of the

applicable state, except that:

(A) a pa r t n e rs hip o r other

unincorporated association with no

such capacity under that state’s law

may sue or be sued in its common

name to enforce a substantive right

existing under the United States

Constitution or laws; and

(B) 28 U.S.C. §§ 754 and 959(a) govern

the capacity of a receiver appointed

by a United States court to sue or be

sued in a United States court. 

(c) Minor or Incompetent Person. 

(1) With a Representative. The following

representatives may sue or defend on

behalf of a minor or an incompetent

person: 

(A) a general guardian;

(B) a committee;

(C) a conservator; or

(D) a like fiduciary.

(2) Without a Representative. A minor or

an incompetent person who does not

have a duly appointed representative may

sue by a next friend or by a guardian ad

litem. The court must appoint a guardian

ad litem—or issue another appropriate

order—to protect a minor or incompetent

person who is unrepresented in an action.

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 17 has been modified in minor respects

in order to achieve closer conformity with FRCP

17. A difference between the court’s rule and the

corresponding FRCP occurs in subdivision (b).

Subdivision (b) ofthe FRCP,subtitled “Capacity to

Sue or Be Sued,” provides generally that in those

cases for which no rule of decision is provided,

“capacity to sue or be sued shall be determined by

the law of the state in which the district court is

held.” In recognition of this court’s nationwide

jurisdiction, the quoted language was rewritten by
33 RCFC 18 and 19

substituting “by the law of the applicable state” for

“by the law of the state in which the district court

is held.”

2008 Amendment

The language of RCFC 17 has been amended

to 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 or

alternative claims, as many claims as it has

against an opposing party. A third party may

join, to the extent permitted by law, as many

claims as it has against an opposing party. 

(b) Joinder of Contingent Claims. A party may

join two claims even though one of them is

contingent on the disposition of the other; but

the court may grant relief only in accordance

with the parties’ relative substantive rights. 

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

The final sentence added to subdivision (a)

was intended to recognize both the right of a third

party to assert a claim and the limitations on that

right as set forth in 41 U.S.C. § 114 and applicable

case law. 

2008 Amendment

The language of RCFC 18 has been amended

to conform to the general restyling of the FRCP. 

Rule 19. Required Joinder of Parties

(a) Persons Required to Be Joined if Feasible.

(1) Required Party. A person who is subject

to service of process and whose joinder

will not deprive the court of subjectmatter jurisdiction must be joined as a

party if:

(A) in that person’s absence, the court

cannot accord complete relief

among existing parties; or

(B) that person claims an interest

relating to the subject of the action

and is so situated that disposing of

the action in the person’s absence

may:

(i) as a practical matter impair or

impede the person’s ability to

protect the interest; or

(ii) leave an existing party subject

to a substantial risk of

incurring double, multiple, or

otherwis e in con sist ent

obligations because of the

interest. 

(2) Joinder by Court Order. If a person has

not been joined as required, the court

must order that the person be made a

party. A person who refuses to join as a

plaintiff may be made either a defendant

or, in a proper case, an involuntary

plaintiff. 

(3) Venue. [Not used.]

(b) When Joinder Is Not Feasible. If a person

who is required to be joined if feasible cannot

be joined, the court must determine whether,

in equity and good conscience, the action

should proceed among the existing parties or

should be dismissed. The factors for the court

to consider include:

(1) the extent to which a judgment rendered

in the person’s absence might prejudice

that person or the existing parties;

(2) the extent to which any prejudice could

be lessened or avoided by:

(A) protective provisions in the

judgment;

(B) shaping the relief; or

(C) other measures;

(3) whether a judgement rendered in the

person’s absence would be adequate; and

(4) whether the plaintiff would have an

adequate remedy if the action were

dismissed for nonjoinder. 

(c) Pleading the Reasons for Nonjoinder.

When asserting a claim for relief, a party must

state:
RCFC 20, 21, and 22 34

(1) the name, if known, of any person who is

required to be joined if feasible but is not

joined; and

(2) the reasons for not joining that person.

(d) Exception for Class Actions. This rule is

subject to RCFC 23.

 

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

Reference to RCFC 14 was deleted from

subdivision (a) and other minor changes have been

made in order to more closely conform to

FRCP 19. Some differences, however, were

retained—the most significant being the deletion of

the last sentence of FRCP 19(a) from this court’s

rule. The last sentence addresses objections to

venue raised by a joined party. Such objections

would not be assertable in this court. 

2008 Amendment

The language of RCFC 19 has been amended

to conform to the general restyling of the FRCP. 

Rule 20. Permissive Joinder of Parties

(a) Persons Who May Join or Be Joined.

(1) Plaintiffs. Persons may join in one

action as plaintiffs if:

(A) they assert any right to relief jointly,

severally, or in the alternative with

respect to or arising out of the same

transaction, occurrence, or series of

transactions or occurrences; and 

(B) any question of law or fact common

to all plaintiffs will arise in the

action.

(2) Defendants. [Not used.]

(3) Extent of Relief. A plaintiff need not be

interested in obtaining all the relief

demanded. The court may grant

judgment to one or more plaintiffs

according to their rights. 

(c) Protective Measures. The court may issue

orders—including an order for separate

trials—to protect a party against

embarrassment, delay, expense, or other

prejudice that arises from including a person

against whom the party asserts no claim and

who asserts no claim against the party. 

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

The authority previously contained in RCFC

20(a)(1)–(2), permitting unrestricted joinder of

additional plaintiffs to a pending multi-party

action, proved cumbersome in practice and an

impediment to sound case management. The

joinder of additional plaintiffs should proceed by

appropriate motion under RCFC 15. Accordingly,

RCFC 20 was modified so as to more closely

parallel the text of the corresponding FRCP. 

2008 Amendment

The language of RCFC 20 has been amended

to conform to the general restyling of the FRCP. 

Rule 21. Misjoinder and Nonjoinder of Parties

Misjoinder of parties is not a ground for dismissing

an action. On motion or on its own, the court may

at any time, on just terms, add or drop a party. The

court may also sever any claim against a party. 

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

The last sentence of the former rule, “To add

plaintiffs, see RCFC 20(a)(1)–(2),” was eliminated

to more closely conform the rule to FRCP 21. 

2008 Amendment

The language of RCFC 21 has been amended

to conform to the general restyling of the FRCP. 

Rule 22. Interpleader [Not used.]
35 RCFC 23

Rules Committee Note

2002 Revision

The interpleader practice permitted under

FRCP 22 is, for the most part, incompatible with

the jurisdiction exercisable by this court.

However, in those cases where the United States is

in the position of a stakeholder facing the risks of

double liability, RCFC 14 provides the means for

summoning a third party.

Rule 23. Class Actions

(a) Prerequisites. One or more members of a

class may sue as representative parties on

behalf 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 the

claims or defenses of the class; and

(4) the representative parties will fairly and

adequately protect the interests of the

class. 

(b) Class Actions Maintainable. A class action

may be maintained if RCFC 23(a) is satisfied

and if:

(1) [not used];

(2) the United States has acted or refused to

act on grounds generally applicable to

the class; and

(3) the court finds that the questions of law

or fact common to class members

predominate over any questions affecting

only individual members, and that a class

action is superior to other available

methods for fairly and efficiently

adjudicating the controversy. The

matters pertinent to these findings

include:

(A) the class members’ interests in

individually controlling the

prosecution of separate actions;

(B) the extent and nature of any

liti gati on c on c e r ning the

controversy already begun by class

members; 

(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 sues

as a class representative, the court

must determine by order whether to

certify the action as a class action.

(B) Defining the Class; Appointing

Class Counsel. An order that

certifies a class action must define

the class and the class claims,

issues, or defenses, and must

appoint class counsel under RCFC

23(g). 

(C) Altering or Amending the Order.

An order that grants or denies class

certification may be altered or

amended before final judgment. 

(2) Notice. 

(A) [Not used.]

(B) For any class certified under RCFC

23(b), the court must direct to class

members the best notice that is

practicable under the circumstances,

including individual notice to all

members who can be identified

through reasonable effort. The

notice must clearly and concisely

state in plain, easily understood

language:

(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 an

attorney if the member so

desires;

(v) that the court will include in
RCFC 23 (cont.) 36

the class any member who

requests inclusion;

(vi) the time and manner for

requesting inclusion;

(vii) the binding effect of a class

judgment on members under

RCFC 23(c)(3).

(3) Judgment. Whether or not favorable to

the class, the judgment in a class action

must include and specify or describe

those to whom the RCFC 23(c)(2) notice

was directed, and whom the court finds

to be class members.

(4) Particular Issues. When appropriate, an

action may be brought or maintained as

a class action with respect to particular

issues.

(5) Subclasses. When appropriate, a class

may be divided into subclasses that are

each treated as a class under this rule. 

(d) Conducting the Action.

(1) In General. In conducting an action

under this rule, the court may issue

orders that:

(A) determine the course of proceedings

or prescribe measures to prevent

undue repetition or complication in

presenting evidence or argument;

(B) require—to protect class members

and f a irl y c ondu ct the

action—giving appropriate notice to

some 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 consider

the representation fair and

adequate, to intervene and

present claims or defenses, or

to otherwise come into the

action;

(C) impose conditions on the

representative parties or on

intervenors;

(D) require that the pleadings be

amended to eliminate allegations

about representation of absent

persons and that the action proceed

accordingly; or

(E) deal with similar procedural

matters. 

(2) Combining and Amending Orders. An

order under RCFC 23(d)(1) may be

altered or amended from time to time and

may be combined with an order under

RCFC 16. 

(e) Settlement, Voluntary Dismissal, or

Compromise. The claims, issues, or defenses

of a certified class may be settled, voluntarily

dismissed, or compromised only with the

court’s approval. The following procedures

apply to a proposed settlement, voluntary

dismissal, or compromise:

(1) The court must direct notice in a

reasonable manner to all class members

who would be bound by the proposal. 

(2) If the proposal would bind class

members, the court may approve it only

after a hearing and on finding that it is

fair, reasonable, and adequate.

(3) The parties seeking approval must file a

statement identifying any agreement

made in connection with the proposal. 

(4) [Not used.]

(5) Any class member may object to the

proposal if it requires court approval

under this subdivision (e); the objection

may be withdrawn only with the court’s

approval. 

(f) Appeals. [Not used.]

(g) Class Counsel.

(1) Appointing Class Counsel. Unless a

statute provides otherwise, a court that

certifies a class must appoint class

counsel. In appointing class counsel, the

court:

(A) must consider:

(i) the work counsel has done in

identifying or investigating

potential claims in the action;

(ii) counsel’s experience in
37 RCFC 23 (cont.)

handling class actions, other

complex litigation, and the

types of claims asserted in the

action;

(iii) counsel’s knowledge of the

applicable law; and

(iv) the resources that counsel will

commit to representing the

class;

(B) may consider any other matter

pertinent to counsel’s ability to

fairly and adequately represent the

interests of the class;

(C) may order potential class counsel to

provide information on any subject

pertinent to the appointment and to

propose terms for attorney’s fees

and nontaxable costs;

(D) may include in the appointing order

provisions about the award of

attorney’s fees or nontaxable costs

under RCFC 23(h); and

(E) may make further orders in

connection with the appointment.

(2) Standard for Appointing Class Counsel.

When one applicant seeks appointment

as class counsel, the court may appoint

that applicant only if the applicant is

adequate under RCFC 23(g)(1) and (4).

If more than one adequate applicant

seeks appointment, the court must

appoint the applicant best able to

represent the interests of the class.

(3) Interim Counsel. The court may

designate interim counsel to act on

behalf of a putative class before

determining whether to certify the action

as a class action. 

(4) Duty of Class Counsel. Class counsel

must fairly and adequately represent the

interests of the class.

(h) Attorney’s Fees and Nontaxable Costs. In

a certified class action, the court may award

reasonable attorney’s fees and nontaxable

costs that are authorized by law or by the

parties’ agreement. The following procedures

apply:

(1) A claim for an award must be made by

motion under RCFC 54(d)(2), subject to

the provisions of this subdivision (h), at

a time the court sets. Notice of the

motion 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 the

motion.

(3) The court may hold a hearing and must

find the facts and state its legal

conclusions under RCFC 52(a).

(4) [Not used.] 

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

July 1, 2004, Nov. 3, 2008, Jan. 11, 2010.) 

Rules Committee Notes

2002 Revision

RCFC 23 has been completely rewritten.

Although the court’s rule is modeled largely on the

comparable FRCP, there are significant differences

between the two rules. In the main, the court’s rule

adopts the criteria for certifying and maintaining a

class action as set forth in Quinault Allottee Ass’n

v. United States, 197 Ct. Cl. 134, 453 F.2d 1272

(1972).

Because the relief available in this court is

generally confined to individual money claims

against the United States, the situations justifying

the use of a class action are correspondingly

narrower than those addressed in FRCP 23. Thus,

the court’s rule does not accommodate, inter alia,

the factual situations redressable through

declaratory and injunctive relief contemplated

under FRCP 23(b)(1) and (b)(2). 

Additionally, unlike the FRCP, the court’s

rule contemplates only opt-in class certifications,

not opt-out classes. The latter were viewed as

inappropriate here because of the need for

specificity in money judgments against the United

States, and the fact that the court’s injunctive

powers—the typical focus of an opt-out class—are

more limited than those of a district court.
RCFC 23.1 38

Finally, the court’s rule does not contain a

provision comparable to FRCP 23(f). That

subdivision, which provides that a “court of

appeals may in its discretion permit an appeal from

an order . . . granting or denying class

certification,” has its origin in 28 U.S.C. § 1292(e),

which authorizes the Supreme Court to promulgate

rules that provide for an appeal of an interlocutory

decision other than those set out in Section 1292.

Because no comparable statutory authority exists

for this court’s promulgation of a similar rule,

subdivision (f) has been omitted. It should be

noted, however, that the Court of Federal Claims

may certify questions to the Court of Appeals for

the Federal Circuit pursuant to 28 U.S.C.

§§ 1292(b), 1295.

2004 Amendment

In addition to the rule changes introduced in

2002, the text of the current rule also incorporates

the revisions to FRCP 23 effective December 1,

2003. These revisions, which appear as

subdivisions (c), (e), (g), and (h) of the rule, adopt

the text of the FRCP except where modification in

wording was necessary to accommodate the “optin” character of this court’s class action practice.

2008 Amendment

The language of RCFC 23 has been amended

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 be

authorized either by law (as was previously

recognized in the rule) or “by the parties’

agreement”; and (ii) include the procedural

protections accorded class members under FRCP

23(h)(1)–(3) with respect to claims for an award of

attorney’s fees.

2010 Amendment

RCFC 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 a

corporation or an unincorporated association

bring a derivative action to enforce a right that

the corporation or association may properly

assert but has failed to enforce. The

derivative action may not be maintained if it

appears that the plaintiff does not fairly and

adequately represent the interests of

shareholders or members who are similarly

situated in enforcing the right of the

corporation or association. 

(b) Pleading Requirements. The complaint

must be verified and must:

(1) allege that the plaintiff was a shareholder

or member at the time of the transaction

complained of, or that the plaintiff’s

share or membership later devolved on it

by operation of law; 

(2) allege that the action is not a collusive

one to confer jurisdiction that the court

would otherwise lack; and

(3) state with particularity: 

(A) any effort by the plaintiff to obtain

the desired action from the directors

or comparable authority and, if

necessary, from the shareholders or

members; and

(B) the reasons for not obtaining the

action or not making the effort.

(c) Settlement, Dismissal, and Compromise. A

derivative action may be settled, voluntarily

dismissed, or compromised only with the

court’s approval. Notice of a proposed

settlement, voluntary dismissal, or

compromise must be given to shareholders or

members in the manner that the court orders.

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

Rules Committee Notes

2002 Adoption

This is a new rule. This version of RCFC 23.1

is in conformity with the corresponding FRCP.

The Federal Circuit has ruled that under certain

circumstances, this court has jurisdiction to hear
39 RCFC 23.2, 24, and 25

shareholder derivative suits. First Hartford Corp.

Pension Plan & Trust v. United States, 194 F.3d

1279 (Fed. Cir. 1999). Cf. Branch v. United States,

69 F.3d 1571 (Fed. Cir. 1995); and California

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

(Fed. Cir. 1992). 

2008 Amendment

The language of RCFC 23.1 has been

amended to conform to the general restyling of the

FRCP. 

Rule 23.2. Actio n s R e l a t i n g t o

Unincorporated Associations

[Not used.]

Rules Committee Note

2002 Revision

This rule is procedurally unnecessary in light

of 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 the

action, and is so situated that disposing

of the action may as a practical matter

impair or impede the movant’s ability to

protect its interest, unless existing parties

adequately 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 common

question of law or fact. 

(2) By a Government Officer or Agency.

[Not used.]

(3) Delay or Prejudice. In exercising its

discretion, the court must consider

whether the intervention will unduly

delay or prejudice the adjudication of the

original parties’ rights. 

(c) Notice and Pleading Required. A motion to

intervene must be served on the parties as

provided in RCFC 5. The motion must state

the grounds for the intervention and be

accompanied by a pleading that sets out the

claim or defense for which intervention is

sought.

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

Minor changes have been made to subdivision

(c) of this rule in order to more closely conform to

FRCP 24. 

2008 Amendment

The language of RCFC 24 has been amended

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 in

subdivision (c)—specifying that the procedure

called for under the rule “shall be followed when a

statute of the United States gives a right to

intervene”—was deleted as unnecessary. 

Rule 25. Substitution of Parties

(a) Death.

(1) Substitution if the Claim is Not

Extinguished. If a party dies and the

claim is not extinguished, the court may

order substitution of the proper party. A

motion for substitution may be made by

any party or by the decedent’s successor

or representative. If the motion is not

made within 90 days after service of a

statement noting the death, the action by

the decedent must be dismissed.

(2) Continuation Among the Remaining

Parties. After a party’s death, if the right

sought to be enforced survives only to or

against the remaining parties, the action

does not abate, but proceeds in favor of
RCFC 26 40

or against the remaining parties. The

death should be noted on the record.

(3) Service. A motion to substitute, together

with a notice of hearing, must be served

on the parties as provided in RCFC 5. A

statement noting death must be served in

the same manner.

(b) Incompetency. If a party becomes

incompetent, the court may, on motion, permit

the action to be continued by or against the

party’s representative. The motion must be

served as provided in RCFC 25(a)(3). 

(c) Transfer of Interest. If an interest is

transferred, the action may be continued by or

against the original party unless the court, on

motion, orders the transferee to be substituted

in the action or joined with the original party.

The motion must be served as provided in

RCFC 25(a)(3). 

(d) Public Officers; Death or Separation from

Office. An action does not abate when a

public officer who is a party in an official

capacity dies, resigns, or otherwise ceases to

hold office while the action is pending. The

officer’s successor is automatically

substituted as a party. Later proceedings

should be in the substituted party’s name, but

any misnomer not affecting the parties’

substantial rights must be disregarded. The

court may order substitution at any time, but

the absence of such an order does not affect

the substitution.

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 25 omits the text of subdivision (d) of

FRCP 25 which addresses the substitution of a

successor in an action naming a public officer who

dies or is separated from service while the action is

pending. 

2008 Amendment

The language of RCFC 25 has been amended

to conform to the general restyling of the FRCP. 

In addition,subdivision (d) (“Public Officers;

Death or Separation from Office”), which is

identical in text to FRCP 25(d) but was previously

“not used,” was added in recognition of the

provision’s potential applicability to claims for

compensation filed in this court under the National

Childhood Vaccine Injury Act. In such suits, a

public officer (the Secretary of Health and Human

Services) is always the named respondent. 

TITLE V. DISCLO S U R E S AND

DISCOVERY

Rule 26. Duty to Disclose; General Provisions

Governing Discovery

(a) Required Disclosures.

(1) Initial Disclosure.

(A) In General. Except as exempted by

RCFC 26(a)(1)(B) or as otherwise

stipulated or ordered by the court, a

party must, without awaiting a

discovery request, provide to the

other parties:

(i) the name and, if known, the

address and telephone number

of each individual likely to

h a v e d i s c overa b l e

information—along with the

s u bjects of that

information—that the

disclosing party may use to

support its claims or defenses,

unless the use would be solely

for impeachment;

(ii) a copy—or a description by

category and location—of all

documents, electronically

stored information, and

tangible things that the

disclosing party has in its

possession, custody, or control

and may use to support its

claims or defenses, unless the

use would be solely for
41 RCFC 26 (cont.)

impeachment;

(iii) a computation of each category

of damages claimed by the

disclosing party—who must

also make available for

inspection and copying as

under RCFC 34 the documents

or other evidentiary material,

unless privileged or protected

fromdisclosure, on which each

computation is based,

including materials bearing on

the nature and extent of

injuries suffered; and

(iv) [not used].

(B) Proceedings Exempt from Initial

Disclosure. The following

proceedings are exempt from initial

disclosure:

(i) an action for review on an

admi nistr a ti ve reco rd,

including procurement protest

and military pay cases;

(ii) [not used];

(iii) [not used];

(iv) an action brought without an

attorney by a person in the

custody of the United States, a

state, 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 the

initial disclosures at or within 14

days after the Early Meeting of

Counsel (see Appendix A ¶3) unless

a different time is set by stipulation

or court order, or unless a party

objects during the conference that

initial disclosures are not

appropriate in this action and states

the objection in the Joint

Preliminary Status Report. In ruling

on the objection, the court must

determine what disclosures, if any,

are to be made and must set the time

for disclosure.

(D) Time for Initial Disclosures—For

Parties Served or Joined Later. A

party that is first served or

otherwise joined after the Early

Meeting of Counsel (see Appendix

A ¶3) must make the initial

disclosures within 30 days after

being served or joined, unless a

different time is set by stipulation or

court order.

(E) Basis for Initial Disclosure;

Unacceptable Excuses. A party

must make its initial disclosures

based on the information then

reasonably available to it. A party

is not excused from making its

disclosures because it has not fully

investigated the case or because it

challenges the sufficiency of

another party’s disclosures or

because another party has not made

its disclosures.

(2) Disclosure of Expert Testimony.

(A) In General. In addition to the

disclosures required by RCFC

26(a)(1), a party must disclose to

the other parties the identity of any

witness it may use at trial to present

evidence under Federal Rule of

Evidence 702, 703, or 705.

(B) Written Report. Unless otherwise

stipulated or ordered by the court,

this disclosu r e must be

accompanied by a written

report—prepared and signed by the

witness—if the witness is one

retained or specially employed to

provide expert testimony in the case

or one whose duties as the party’s
RCFC 26 (cont.) 42

employee regularly involve giving

expert testimony. The report must

contain:

(i) a complete statement of all

opinions the witness will

express and the basis and

reasons for them;

(ii) the data or other information

considered by the witness in

forming them;

(iii) any exhibits that will be used

to summarize or support them;

(iv) the witness’s qualifications,

including a list of all

publications authored in the

previous 10 years; 

(v) a list of all other cases in

which, during the previous 4

years, the witness testified as

an expert at trial or by

deposition; and

(vi) a st a t e men t of the

compensation to be paid for

the study and testimony in the

case.

(C) Time to Disclose Expert

Testimony. A party must make

these disclosures at the times and in

the sequence that the court orders.

Absent a stipulation or a court order

(see Appendix A ¶¶ 5 and 8), the

disclosures must be made:

(i) at least 70 days before the

scheduled close of discovery;

or

(ii) if the evidence is intended

solely to contradict or rebut

evidence on the same subject

matter identified by another

party under RCFC 26(a)(2)(B),

within 30 days after the other

party’s disclosure.

(D) Supplementing the Disclosure.

The parties must supplement these

disclosures when required under

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 under

RCFC 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 of

discovery is as follows: Parties may

obtain discovery regarding any

nonprivileged matter that is relevant to

any party’s claim or defense—including

the existence, description, nature,

custody, condition, and location of any

documents or other tangible things and

the identity and location of persons who

know of any discoverable matter. For

good cause, the court may order

discovery of any matter relevant to the

subject matter involved in the action.

Relevant information need not be

admissible at the trial if the discovery

appears reasonably calculated to lead to

the discovery of admissible evidence.

All discovery is subject to the limitations

imposed by RCFC 26(b)(2)(C).

(2) Limitations on Frequency and Extent.

(A) When Permitted. By order, the

court may alter the limits in these

rules on the number of depositions

and interrogatories or on the length

of depositions under RCFC 30. By

order, the court may also limit the

number of requests under RCFC 36.

(B) S p e c ifi c Limitations o n

Electronically Stored Information.

A party need not provide discovery

of electronically stored information

from sources that the party

identifies as not reasonably

accessible because of undue burden

or cost. On motion to compel

discovery or for a protective order,

the party from whom discovery is

sought must show that the
43 RCFC 26 (cont.)

information is not reasonably

accessible because of undue burden

or 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 the discovery. 

(C) When Required. On motion or on

its own, the court must limit the

frequency or extent of discovery

otherwise allowed by these rules if

it determines that:

(i) the discovery sought is

unreasonably cumulative or

duplicative, or can be obtained

from some other source that is

more convenient, less

burdensome, or less expensive;

(ii) the party seeking discovery has

had ample opportunity to

obtain the information by

discovery in the action; or

(iii) the burden or expense of the

proposed discovery outweighs

its likely benefit, considering

the needs of the case, the

amount in controversy, the

parties’ resources, the

importance of the issues at

stake in the action, and the

importance of the discovery in

resolving the issues.

(3) Trial Preparations: Materials. 

(A) Documents and Tangible Things.

Ordinarily, a partymay not discover

documents and tangible things that

are prepared in anticipation of

litigation or for trial by or for

another party or its representative

(including the other party’s

attorney, consultant, surety,

indemnitor, insurer, or agent). But,

subject to RCFC 26(b)(4), those

materials may be discovered if:

(i) they a r e o t herwise

discoverable under RCFC

26(b)(1); and

(ii) the party shows that it has

substantial need for the

materials to prepare its case

and cannot, without undue

hardship, obtain their

substantial equivalent by other

means.

(B) Protection Against Disclosure. If

the court orders discovery of those

materials, it must protect against

disclosure of the mental

impressions, conclusions, opinions,

or legal theories of a party’s

attorney or other representative

concerning the litigation.

(C) Previous Statement. Any party or

other person may, on request and

without the required showing,

obtain the person’s own previous

statement about the action or its

subject matter. If the request is

refused, the person may move for a

court order, and RCFC 37(a)(5)

applies to the award of expenses. A

previous statement is either:

(i) a written statement that the

person has signed or otherwise

adopted or approved; or

(ii) a contem pora n e ous

stenographic, mechanical,

electrical, or o ther

recording—or a transcription

of it—that recites substantially

verbatim the person’s oral

statement. 

(4) Trial Preparation: Experts.

(A) Expert Who May Testify. A party

may depose any person who has

been identified as an expert whose

opinions may be presented at trial.

If RCFC 26(a)(2)(B) requires a

report from the expert, the

deposition may be conducted only
RCFC 26 (cont.) 44

after the report is provided.

(B) Expert Employed Only for Trial

Preparation. Ordinarily, a party

may not, by interrogatories or

deposition, discover facts known or

opinions held by an expert who has

been retained or specially employed

by another party in anticipation of

litigation or to prepare for trial and

who is not expected to be called as

a witness at trial. But a party may

do so only: 

(i) as provided in RCFC 35(b); or

(ii) on showing exceptional

circumstances under which it

is impracticable for the party to

obtain facts or opinions on the

same subject by other means.

(C) Payment. Unless manifest injustice

would result, the court must require

that the party seeking discovery:

(i) pay the expert a reasonable fee

for time spent in responding to

discovery under RCFC

26(b)(4)(A) or (B); and

(ii) for discovery under (B), also

pay the other party a fair

portion of the fees and

expenses it reasonably incurred

in obtaining the expert’s facts

and opinions. 

(5) Claiming Privilege or Protecting TrialPreparation Materials. 

(A) Information Withheld. When a

party withholds information

otherwise discoverable by claiming

that the information is privileged or

subject to protection as trialpreparation material, the party must:

(i) expressly make the claim; and

(ii) describe the nature of the

documents, communications,

or tangible things not produced

or disclosed—and do so in a

manner that, without revealing

information itself privileged or

protected, will enable other

parties to assess the claim.

(B) Information Produced. If

information produced in discovery is

subject to a claim of privilege or of

protection as trial-preparation material,

the party 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 or disclose the information until

the claim is resolved; must take

reasonable steps to retrieve the

information if the party disclosed it

before being notified; and may promptly

present the information to the court

under seal for a determination of the

claim. The producing party must

preserve the information until the claim

is resolved.

(c) Protective Orders.

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

whom discovery is sought may move for

a protective order. The motion must

include a certification that the movant

has in good faith conferred or attempted

to confer with other affected parties in an

effort to resolve the dispute without court

action. The court may, for good cause,

issue an order to protect a party or person

from 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 or

discovery;

(C) prescribing a discovery method

other than the one selected by the

party seeking discovery;

(D) forbidding inquiry into certain

matters, or limiting the scope of

disclosure or discovery to certain
45 RCFC 26 (cont.)

matters;

(E) designating the persons who may be

present while the discovery is

conducted;

(F) requiring that a deposition be sealed

and opened only on court order;

(G) requiring that a trade secret or other

confidentialresearch, development,

or commercial information not be

revealed or be revealed only in a

specified way; and

(H) requiring that the parties

simultaneously file specified

documents or information in sealed

envelopes, to be opened as the court

directs. 

(2) Ordering Discovery. If a motion for a

protective order is wholly or partly

denied, the court may, on just terms,

order that any party or person provide or

permit 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 have

conferred as required by Appendix A ¶ 3,

except in a proceeding exempted from

initial disclosure under RCFC

26(a)(1)(B), or when authorized by these

rules, by stipulation, or by court order.

(2) Sequence. Unless, on motion, the court

orders otherwise for the parties’ and

witnesses’ convenience and in the

interests 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 its

discovery.

(e) Supplementing Disclosures and Responses.

(1) In General. A party who has made a

disclosure under RCFC 26(a)—or who

has responded to an interrogatory,

request for production, or request for

admission—must supplement or correct

its disclosure or response:

(A) in a timely manner if the party

learns that in some material respect

the disclosure or response is

incomplete or incorrect, and if the

additional or corrective information

has not otherwise been made known

to the other parties during the

discovery process or in writing; or

(B) as ordered by the court.

(2) Expert Witness. For an expert whose

report must be disclosed under RCFC

26(a)(2)(B), the party’s duty to

supplement extends both to information

included in the report and to information

given during the expert’s deposition.

Any additions or changes to this

information must be disclosed by the

time the party’s pretrial disclosures

under RCFC 26(a)(3) are due.

(f) Conference of the Parties; Planning for

Discovery. [Not used; see Appendix A ¶ 3.]

(g) Signing Disclosures and Discovery

Requests, Responses, and Objections.

(1) Signature Required; Effect of

Signature. Every disclosure under

RCFC 26(a)(1) or Appendix A ¶¶ 13, 15,

and 16, and every discovery request,

response, or objection must be signed by

the attorney of record in the attorney’s

own name—or by the party personally, if

unrepresented—and must state the

signer’s address, e-mail address, and

telephone number. By signing, an

attorney or party certifies that to the best

of the person’s knowledge, information,

and belief formed after a reasonable

inquiry:

(A) with respect to a disclosure, it is

complete and correct as of the time

it 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 or

by a nonfrivolous argument for
RCFC 27 46

extending, modifying, or

reversing existing law, or for

establishing new law;

(ii) not interposed for any

improper purpose, such as to

harass, cause unnecessary

delay, or needlessly increase

the cost of litigation; and

(iii) neither unreasonable nor

unduly burdensome or

expensive, considering the

needs of the case, prior

discovery in the case, the

amount in controversy, and the

importance of the issues at

stake in the action.

(2) Failure to Sign. Other parties have no

duty to act on an unsigned disclosure,

request, response, or objection until it is

signed, and the court must strike it unless

a signature is promptly supplied after the

omission is called to the attorney’s or

party’s attention. 

(3) Sanction for Improper Certification. If

a certification violates this rule without

substantial justification, the court, on

motion or on its own, must impose an

appropriate sanction on the signer, the

party on whose behalf the signer was

acting, or both. The sanction may

include an order to pay the reasonable

expenses, including attorney’s fees,

caused by the violation.

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

Nov. 15, 2007, Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 26 has been revised to parallel the

structure and content of its counterpart in the

FRCP. The limited number of changes to the

current FRCP, as amended in 2000, reflect those

deemed necessary to accommodate the nature and

jurisdiction of this court. Except for these changes,

the rule shown conforms fully to the text of FRCP

26. Because the Appendix A Early Meeting of

Counsel substantially accomplishes the same

purpose as the FRCP 26(f) Conference of Parties,

the timing of initial disclosures was keyed to the

former. Consequently, in lieu of the language of

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

A ¶ 3.

2007 Amendment

Rule 26 has been amended to reflect the

changes to subdivisions (a) and (b) of FRCP 26

that became effective December 1, 2006. The

changes to subdivision (f) of FRCP 26 that became

effective December 1, 2006, were also adopted by

the court but appear as changes to Appendix A, ¶ 3.

2008 Amendment

The language of RCFC 26 has been amended

to conform to the general restyling of the FRCP.

In addition, the references in former

subparagraph (a)(1)(E) to the initial disclosure

requirements after the filing of the Joint

Preliminary Status Report have been changed in

now-restyled subparagraphs (a)(1)(C) and (D) to

“after the Early Meeting of Counsel” to reflect the

corresponding event (the Rule 26(f) conference)

identified in the federal rule.

Rule 27. Depositions to Perpetuate Testimony

(a) Before an Action Is Filed.

(1) Petition. A person who wants to

perpetuate testimony about any matter

cognizable in the court may file a

verified petition. The petition must ask

for an order authorizing the petitioner to

depose the named persons in order to

perpetuate their testimony. The petition

must be titled in the petitioner’s name

and must show:

(A) that the petitioner expects to be a

party to an action cognizable in the

court but cannot presently bring it

or cause it to be brought;

(B) the subject matter of the expected

action and the petitioner’s interest;

(C) the facts that the petitioner wants to
47 RCFC 28

establish by the proposed testimony

and the reasons to perpetuate it;

(D) [not used]; and

(E) the name, address, and expected

substance of the testimony of each

deponent.

(2) Notice and Service. The petitioner must

serve the United States with a copy of

the petition in the same manner as the

complaint. See RCFC 4. The petitioner

may thereafter request a hearing by

motion served on counsel for the United

States (see RCFC 5), or on its own, the

court may order a hearing on the petition.

(3) Order and Examination. If satisfied that

perpetuating the testimony may prevent

a failure or delay of justice, the court

must issue an order that designates or

describes the persons whose depositions

may be taken, specifies the subject

matter of the examinations, and states

whether the depositions will be taken

orally or by written interrogatories. The

depositions may then be taken under

these rules, and the court may issue

orders like those authorized by RCFC 34

and 35.

(4) Using the Deposition. A deposition to

perpetuate testimony may be used under

RCFC 32(a) in any later-filed action in

this court involving the same subject

matter if the deposition was taken under

these rules.

(b) Pending Appeal.

(1) In General. If a judgment has been

rendered and an appeal has been taken or

may still be taken, the court may permit

a party to depose witnesses to perpetuate

their testimony for use in the event of

further proceedings in the court. 

(2) Motion. The party who wants to

perpetuate testimony may move for leave

to take the depositions, on the same

notice and service as if the action were

pending in this court. The motion must

show:

(A) the name, address, and expected

substance of the testimony of each

deponent; and

(B) the reasons for perpetuating the

testimony.

(3) Court Order. If the court finds that

perpetuating the testimony may prevent

a failure or delay of justice, the court

may permit the depositions to be taken

and may issue orders like those

authorized by RCFC 34 and 35. The

depositions may be taken and used as any

other deposition taken in an action

pending in this court. 

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

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 27 closely parallels FRCP 27, the only

differences being those necessary for compatibility

with the jurisdiction and other rules of the court.

2008 Amendment

The language of RCFC 27 has been amended

to conform to the general restyling of the FRCP.

Rule 28. Persons Before Whom Depositions

May Be Taken

(a) Within the United States. 

(1) In General. Within the United States or

a territory or insular possession subject

to United States jurisdiction, a deposition

must be taken before:

(A) an officer authorized to administer

oaths either by federal law or by the

law in the place of examination; or

(B) a person appointed by the court to

administer oaths and take testimony.

(2) Definition of “Officer.” The term

“officer” in RCFC 30, 31, and 32

includes a person appointed by the court

under this rule or designated by the

parties under RCFC 29(a).
RCFC 29 and 30 48

(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 either

by federal law or by the law in the

place of examination; or

(D) before a person commissioned by

the court to administer any

necessary oath and take testimony.

(2) Issuing a Letter of Request or a

Commission. A letter of request, a

commission, 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 is

impracticable or inconvenient.

(3) Form of a Request, Notice, or

Commission. When a letter of request or

any other device is used according to a

treaty or convention,it must be captioned

in the form prescribed by that treaty or

convention. A letter of request may be

addressed “To the Appropriate Authority

in [name of country].” A deposition

notice or a commission must designate

by name or descriptive title the person

before whom the deposition is to be

taken.

(4) Letter of Request—Admitting Evidence.

 Evidence obtained in response to a letter

of request need not be excluded merely

because it is not a verbatim transcript,

because the testimony was not taken

under oath, or because of any similar

departure from the requirements for

depositions taken within the United

States.

(c) Disqualification. A deposition must not be

taken before a person who is any party’s

relative, employee, or attorney; who is related

to or employed by any party’s attorney; or

who is financially interested in the action. 

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 28 parallels in form and content FRCP

28. The single difference between the two rules

occurs in subdivision (a): the court’s rule

eliminates the reference to other courts by omitting

the phrasing “in which the action is pending.”

2008 Amendment

The language of RCFC 28 has been amended

to conform to the general restyling of the FRCP.

Rule 29. Stipulations About Discovery

Procedure

Unless the court orders otherwise, the parties may

stipulate that:

(a) a deposition may be taken before any person,

at any time or place, on any notice, and in the

manner specified—in which event it may be

used in the same way as any other deposition;

and

(b) other procedures governing or limiting

discovery be modified—but a stipulation

extending the time for any form of discovery

must have court approval if it would interfere

with the time set for completing discovery, for

hearing a motion, or for trial.

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 29 is identical to its FRCP counterpart.

2008Amendment

The language of RCFC 29 has been amended

to conform to the general restyling of the FRCP.

Rule 30. Depositions by Oral Examination
49 RCFC 30 (cont.)

(a) When a Deposition May Be Taken.

(1) Without Leave. A party may, by oral

questions, depose any person, including

a party, without leave of court except as

provided in RCFC 30(a)(2). The

deponent’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

to the extent consistent with RCFC

26(b)(2):

(A) if the parties have not stipulated to

the deposition and:

(i) the deposition would result in

more than 10 depositions being

taken under this rule or RCFC

31 by the plaintiffs, or by the

defendant, or by the third-party

defendants;

(ii) the deponent has already been

deposed in the case; or

(iii) the party seeks to take the

deposition before the time

specified in RCFC 26(d),

unless the party certifies in the

notice, with supporting facts,

that the deponent is expected

to leave the United States and

be unavailable for examination

in this country after that time;

or

(B) if the deponent is confined in

prison.

(b) Notice of the Deposition; Other Formal

Requirements.

(1) Notice in General. A party who wants

to depose a person by oral questions

must give reasonable written notice to

every other party. The notice must state

the time and place of the deposition and,

if known, the deponent’s name and

address. If the name is unknown, the

notice must provide a general description

sufficient to identify the person or the

particular class or group to which the

person belongs.

(2) Producing Documents. If a subpoena

duces tecum is to be served on the

deponent, the materials designated for

production, as set out in the subpoena,

must be listed in the notice or in an

attachment. The notice to a party

deponent may be accompanied by a

request under RCFC 34 to produce

documents and tangible things at the

deposition.

(3) Method of Recording.

(A) Method Stated in the Notice. The

party who notices the deposition

must state in the notice the method

for recording the testimony. Unless

the court orders otherwise,

testimony may be recorded by

audio, audiovisual, or stenographic

means. The noticing party bears the

recording costs. Any party may

arrange to transcribe a deposition. 

(B) Additional Method. With prior

notice to the deponent and other

parties, any party may designate

another method for recording the

testimony in addition to that

specified in the original notice.

That party bears the expense of the

additional record or transcript

unless the court orders otherwise.

(4) By Remote Means. The parties may

stipulate—or the court may on motion

order—that a deposition be taken by

telephone or other remote means. For

the purpose of this rule and RCFC 28(a)

and 37(b)(1), the deposition takes place

where the deponent answers the

questions. 

(5) Officer’s Duties.

(A) Before the Deposition. Unless the

parties stipulate otherwise, a

deposition must be conducted

before an officer appointed or

designated under RCFC 28. The

officer must begin the deposition

with an on-the-record statement that
RCFC 30 (cont.) 50

includes:

(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 the

deponent; and

(v) the identity of all persons

present.

(B) Conducting the Deposition;

Avoiding Distortion. If the

depo sitio n i s recorded

nonstenographically, the officer

must repeat the items in RCFC

30(b)(5)(A)(i)–(iii) at the beginning

of each unit of the recording

medium. The deponent’s and

attorneys’ appearance or demeanor

must not be distorted through

recording techniques.

(C) After the Deposition. At the end of

a deposition, the officer must state

on the record that the deposition is

complete and must set out any

stipulations made by the attorneys

about custody of the transcript or

recording and of the exhibits, or

about any other pertinent matters. 

(6) Notice or Subpoena Directed to an

Organization. In its notice or subpoena,

a party may name as the deponent a

public or private corporation, a

partnership, an association, a

governmental agency, or other entity and

must describe with reasonable

particularity the matters for examination.

The named organization must then

designate one or more officers, directors,

or managing agents, or designate other

persons who consent to testify on its

behalf; and it may set out the matters on

which each person designated will

testify. A subpoena must advise a

nonparty organization of its duty to make

this designation. The persons designated

must testify about information known or

reasonably available to the organization.

This paragraph (6) does not preclude a

deposition by any other procedure

allowed by these rules.

(c) Examination and Cross-Examination;

Record of the Examination; Objections;

Written Questions.

(1) Examination and Cross-Examination.

The examination and cross-examination

of a deponent proceed as they would at

trial under the Federal Rules of

Evidence, except Rules 103 and 615.

After putting the deponent under oath or

affirmation, the officer must record the

testimony by the method designated

under RCFC 30(b)(3)(A). The testimony

must be recorded by the officer

personally or by a person acting in the

presence and under the direction of the

officer. 

(2) Objections. An objection at the time of

the examination—whether to evidence,

to a party’s conduct, to the officer’s

qualifications, to the manner of taking

the deposition , or to any other aspect of

the deposition—must be noted on the

record, but the examination still

proceeds; the testimony is taken subject

to any objection. An objection must be

stated concisely in a nonargumentative

and nonsuggestive manner. A person

may instruct a deponent not to answer

only when necessary to preserve a

privilege, to enforce a limitation ordered

by the court, or to present a motion under

RCFC 30(d)(3).

(3) Participating Through Written

Questions. Instead of participating in the

oral examination, a party may serve

written questions in a sealed envelope on

the party noticing the deposition, who

must deliver them to the officer. The

officer must ask the deponent those

questions and record the answers
51 RCFC 30 (cont.)

verbatim. 

(d) Duration; Sanction; Motion to Terminate

or Limit. 

(1) Duration. Unless otherwise stipulated or

ordered by the court, a deposition is

limited to 1 day of 7 hours. The court

must allow additional time consistent

with RCFC 26(b)(2) if needed to fairly

examine the deponent or if the deponent,

another person, or any other

circumstance impedes or delays the

examination.

(2) Sanction. The court may impose an

appropriate sanction—including the

reasonable expenses and attorney’s fees

incurred by any party—on a person who

impedes, delays, or frustrates the fair

examination of the deponent. 

(3) Motion to Terminate or Limit.

(A) Grounds. At any time during a

deposition, the deponent or a party

may move to terminate or limit it on

the ground that it is being conducted

in bad faith or in a manner that

unreasonably annoys, embarrasses,

or oppresses the deponent or party.

If the objecting deponent or party so

demands, the deposition must be

suspended for the time necessary to

obtain an order.

(B) Order. The court may order that the

deposition be terminated or may

limit its scope and manner as

provided in RCFC 26(c). If

terminated, the deposition may be

resumed only by order of the court.

(C) Award of Expenses. RCFC

37(a)(5) applies to the award of

expenses. 

(e) Review by the Witness; Changes.

(1) Review; Statement of Changes. On

request by the deponent or a party before

the deposition is completed, the deponent

must be allowed 30 days after being

notified by the officer that the transcript

or 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 listing

the changes and the reasons for

making them.

(2) Changes Indicated in the Officer’s

Certificate. The officer must note in the

certificate prescribed by RCFC 30(f)(1)

whether a review was requested and, if

so, must attach any changes the deponent

makes 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 witness

was duly sworn and that the deposition

accurately records the witness’s

testimony. The certificate must

accompany the record of the deposition.

Unless the court orders otherwise, the

officer must seal the deposition in an

envelope or package bearing the title of

the action and marked “Deposition of

[witness’s name]” and must promptly

send it to the attorney who arranged for

the transcript or recording. The attorney

must store it under conditions that will

protect it against loss, destruction,

tampering, or deterioration.

(2) Documents and Tangible Things.

(A) Originals and Copies. Documents

and tangible things produced for

inspection during a deposition must,

on a party’s request, be marked for

identification and attached to the

deposition. Any party may inspect

and copy them. But if the person

who produced them wants to keep

the originals, the person may:

(i) offer copies to be marked,

attached to the deposition, and

then used as originals—after

giving all parties a fair

opportunity to verify the
RCFC 31 52

copies by comparing them with

the originals; or

(ii) give all parties a fair

opportunity to inspect and

copy the originals after they

are marked—in which event

the originals may be used as if

attached to the deposition.

(B) Order Regarding the Originals.

Any party may move for an order

that the originals be attached to the

deposition pending final disposition

of the case.

(3) Copies of the Transcript or Recording.

Unless otherwise stipulated or ordered by

the court, the officer must retain the

stenographic notes of a deposition taken

stenographically or a copy of the

recording of a deposition taken by

another method. When paid reasonable

charges, the officer must furnish a copy

of the transcript or recording to any party

or 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 in

person or by an attorney may recover

reasonable expenses for attending, including

attorney’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 not

attend.

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 30 parallels the structure and content of

its FRCP counterpart. The limited number of

differences between the two rules reflects those

necessary for compatibility with the jurisdiction

and other rules of the court.

2008 Amendment

The language of RCFC 30 has been amended

to conform to the general restyling of the FRCP.

Rule 31. Depositions by Written Questions

(a) When a Deposition May Be Taken.

(1) Without Leave. A party may, by written

questions, depose any person, including

a party, without leave of court except as

provided in RCFC 31(a)(2). The

deponent’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 to

the extent consistent with RCFC

26(b)(2):

(A) if the parties have not stipulated to

the deposition and:

(i) the deposition would result in

more than 10 depositions being

taken under this rule or RCFC

30 by the plaintiffs, or by the

defendant, or by the third-party

defendants; 

(ii) the deponent has already been

deposed in the case; or

(iii) the party seeks to take a

deposition before the time

specified in RCFC 26(d); or

(B) if the deponent is confined in

prison. 

(3) Service; Required Notice. A party who

wants to depose a person by written

questions must serve them on every other

party, with a notice stating, if known, the

deponent’s name and address. If the

name is unknown, the notice must

provide a general description sufficient

to identify the person or the particular

class or group to which the person

belongs. The notice must also state the

name or descriptive title and the address

of the officer before whom the

deposition will be taken.

(4) Questions Directed to an Organization.

A public or private corporation, a
53 RCFC 32

partnership, an association, or a

governmental agency may be deposed by

written questions in accordance with

RCFC 30(b)(6).

(5) Questions from Other Parties. Any

questions to the deponent from other

parties must be served on all parties as

follows: cross-questions, within 14 days

after being served with the notice and

direct questions; redirect questions,

within 7 days after being served with

cross-questions; and recross-questions,

within 7 days after being served with

redirect questions. The court may, for

good cause, extend or shorten these

times. 

(b) Delivery to the Officer; Officer’s Duties.

The party who noticed the deposition must

deliver to the officer a copy of all questions

served and of the notice. The officer must

promptly proceed in the manner provided in

RCFC 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 the

deposition must notify all other parties

when it is completed.

(2) Filing. [Not used.]

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 31 closely parallels the text of

FRCP 31. Subdivision (a) is identical in wording

to the current FRCP. Subdivisions (b) and (c) are

nearly identical, the only differences being those

necessary to reflect the court's practice of not

requiring depositions to be filed.

2008 Amendment

The language of RCFC 31 has been amended

to conform to the general restyling of the FRCP.

Rule 32. Using Depositions in Court

Proceedings

(a) Using Depositions.

(1) In General. At a hearing or trial, all or

part of a deposition may be used against

a 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 Rules

of Evidence if the deponent were

present and testifying; and

(C) the use is allowed by RCFC

32(a)(2) through (8).

(2) Impeachment and Other Uses. Any

party may use a deposition to contradict

or impeach the testimony given by the

deponent as a witness, or for any other

purpose allowed by the Federal Rules of

Evidence.

(3) Deposition of Party, Agent, or Designee.

An adverse party may use for any

purpose the deposition of a party or

anyone who, when deposed, was the

party’s officer, director, managing agent,

or designee under RCFC 30(b)(6) or

31(a)(4).

(4) Unavailable Witness. A party may use

for any purpose the deposition of a

witness, whether or not a party, if the

court finds: 

(A) that the witness is dead;

(B) that the witness is outside the

United States, unless it appears that

the witness’s absence was procured

by the party offering the deposition;

(C) that the witness cannot attend or

testify because of age, illness,

infirmity, or imprisonment;

(D) that the party offering the

deposition could not procure the

witness’s attendance by subpoena;
RCFC 32 (cont.) 54

or

(E) on motion and notice, that

exceptional circumstances make it

desirable—in the interest of justice

and with due regard to the

importance of live testimony in

open court—to permit the

deposition to be used.

(5) Limitations on Use.

(A) Deposition Taken on Short Notice.

A deposition must not be used

against a party who, having received

less than 14 days’ notice of the

deposition, promptly moved for a

protective order under RCFC

26(c)(1)((B) requesting that it not

be taken or be taken at a different

time or place—and this motion was

still pending when the deposition

was taken. 

(B) Unavailable Deponent; Party

Could Not Obtain an Attorney. A

deposition taken without leave of

court under the unavailability

provision of RCFC 30(a)(2)(A)(iii)

must not be used against a party

who shows that, when served with

the notice, it could not, despite

diligent efforts, obtain an attorney

to represent it at the deposition.

(6) Using Part of a Deposition. If a party

offers in evidence only part of a

deposition, an adverse party may require

the offeror to introduce other parts that in

fairness should be considered with the

part introduced, and any party may itself

introduce any other parts.

(7) Substituting a Party. Substituting a

party under RCFC 25 does not affect the

right to use a deposition previously

taken.

(8) Deposition Taken in an Earlier Action.

A deposition lawfully taken and, if

required, filed in any federal- or statecourt action may be used in a later action

involving the same subject matter

between the same parties, or their

representatives or successors in interest,

to the same extent as if taken in the later

action. A deposition previously taken

may also be used as allowed by the

Federal Rules of Evidence.

(b) Objections to Admissibility. Subject to

RCFC 28(b) and 32(d)(3), an objection may

be made at a hearing or trial to the admission

of any deposition testimony that would be

inadmissable if the witness were present and

testifying.

(c) Form of Presentation. Unless the court

orders otherwise, a party must provide a

transcript of any deposition testimony the

party offers, but may provide the court with

the 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 is

waived unless promptly served in writing

on the party giving the notice.

(2) To the Officer’s Qualification. An

objection based on disqualification of the

officer before whom a deposition is to be

taken is waived if not made:

(A) before the deposition begins; or

(B) promptly after the basis for

disqualification becomes known or,

with reasonable diligence, could

have been known.

(3) To the Taking of the Deposition.

(A) Objection to Competence,

Relevance, or Materiality. An

objection to a deponent’s

competence—or to the competence,

relevance, or materiality of

testimony—is not waived by a

failure to make the objection before

or during the deposition, unless the

ground for it might have been

corrected at that time.

(B) Objection to an Error or

Irregularity. An objection to an

error or irregularity at an oral

examination is waived if:
55 RCFC 33

(i) it relates to the manner of

taking the deposition, the form

of a question or answer, the

oath or affirmation, a party’s

conduct, or other matters that

might have been corrected at

that time; and

(ii) it is not timely made during the

deposition.

(C) Objection to a Written Question.

An objection to the form of a

written question under RCFC 31 is

waived if not served in writing on

the party submitting the question

within the time for serving

responsive questions or, if the

question is a recross-question,

within 7 days after being served

with it.

(4) To Completing and Returning the

Deposition. An objection to how the

officer transcribed the testimony—or

prepared, signed, certified, sealed,

endorsed, sent, or otherwise dealt with

the deposition—is waived unless a

motion to suppress is made promptly

after the error or irregularity becomes

known or, with reasonable diligence,

could have been known. 

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

Nov. 3, 2008, Jan. 11, 2010.) 

Rules Committee Notes

2002 Revision

RCFC 32 is identical to its FRCP counterpart,

except for (1) omission of the last sentence in

subdivision (c), applicable only in jury trials, (2)

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

because this court does not require that depositions

routinely be filed, and (3) revision of

subparagraphs (a)(3)(B) and (E) to require

application and notice for the use of depositions of

a witness who is at a greater distance than 100

miles from the place of trial or hearing. 

2008 Amendment

The language of RCFC 32 has been amended

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) (relating

to the requirement governing the use at trial of the

deposition of a witness located more than 100

miles from the place of trial or hearing) has been

incorporated into restyled subparagraph (a)(4)(B).

2010 Amendment

RCFC 32(a)(4) has been amended to more

closely parallel its FRCP counterpart, except that

the provision in subparagraph (a)(4)(B) allowing

the use of deposition testimony where the witness

is more than 100 miles from the place of trial has

been stricken to reinforce the court’s clear

preference for live testimony, particularly given the

availability of video and telephone conferencing.

A witness’s distance from the place of trial may

nevertheless be considered as a basis for the

allowance of deposition testimony under the

“exceptional circumstances” provision of

subparagraph (a)(4)(E).

In addition, the time periods of 11 and 5 days

formerly set forth in RCFC 32 have been changed

to 14 and 7 days, respectively, in accordance with

the corresponding changes to FRCP 32 that became

effective December 1, 2009.

Rule 33. Interrogatories to Parties

(a) In General.

(1) Number. Unless otherwise stipulated or

ordered by the court, a party may serve

on any other party no more than 25

written interrogatories, including all

discrete subparts. Leave to serve

additional interrogatories may be granted

to the extent consistent with RCFC

26(b)(2). 

(2) Scope. An interrogatory may relate to

any matter that may be inquired into

under RCFC 26(b). An interrogatory is

not objectionable merely because it asks

for an opinion or contention that relates

to fact or the application of law to fact,
RCFC 34 56

but the court may order that the

interrogatory need not be answered until

designated discovery is complete, or until

a 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, an

association, or a governmental

agency, by any officer or agent, who

must furnish the information

available to the party.

(2) Time to Respond. The responding party

must serve its answers and any

objections within 30 days after being

served with the interrogatories. A

shorter or longer time may be stipulated

to under RCFC 29 or be ordered by the

court.

(3) Answering Each Interrogatory. Each

interrogatory must, to the extent it is not

objected to, be answered separately and

fully in writing under oath.

(4) Objections. The grounds for objecting to

an interrogatory must be stated with

specificity. Any ground not stated in a

timely objection is waived unless the

court, for good cause, excuses the failure.

(5) Signature. The person who makes the

answers must sign them, and the attorney

who objects must sign any objections.

(c) Use. An answer to an interrogatory may be

used to the extent allowed by the Federal

Rules of Evidence.

(d) Option to Produce Business Records. If the

answer to an interrogatory may be determined

by examining, auditing, compiling,

abstracting, or summarizing a party’s business

records (including electronically stored

information), and if the burden of deriving or

ascertaining the answer will be substantially

the same for either party, the responding party

may answer by: 

(1) specifying the records that must be

reviewed, in sufficient detail to enable

the interrogating party to locate and

identify them as readily as the

responding party could; and

(2) giving the interrogating party a

reasonable opportunity to examine and

audit the records and to make copies,

compilations, abstracts, or summaries. 

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

Nov. 15, 2007, Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 33 is identical to FRCP 33. 

2007 Amendment

RCFC 33 has been amended to reflect the

corresponding changes to FRCP 33 that became

effective December 1, 2006.

2008 Amendment

The language of RCFC 33 has been amended

to conform to the general restyling of the FRCP.

Rule 34. Producing Documents, Electronically

Stored Information, and Tangible

Things, or Entering onto Land, for

Inspection and Other Purposes

(a) In General. A party may serve on any other

party a request within the scope of RCFC

26(b):

(1) to produce and permit the requesting

party or its representative to inspect,

copy, test, or sample the following items

in the responding party’s possession,

custody, or control:

(A) any designated documents or

e l e c tronically stored

information—including writings,

drawings, graphs, charts,

photographs, sound recordings,

images, and other data or data

compilations—stored in any

medium from which information
57 RCFC 34 (cont.)

can be obtained either directly or, if

necessary, after translation by the

responding party into a reasonably

usable form; or 

(B) any designated tangible things; or

(2) to permit entry onto designated land or

other property possessed or controlled by

the responding party, so that the

requesting party may inspect, measure,

survey, photograph, test, or sample the

property or any designated object or

operation on it.

(b) Procedure.

(1) Contents of the Request. The request:

(A) must describe with reasonable

particularity each item or category

of items to be inspected;

(B) must specify a reasonable time,

place, and manner for the inspection

and for performing the related acts;

and

(C) may specify the form or forms in

which electronically stored

information is to be produced. 

(2) Responses and Objections. 

(A) Time to Respond. The party to

whom the request is directed must

respond in writing within 30 days

after being served. A shorter or

longer time may be stipulated to

under RCFC 29 or be ordered by the

court.

(B) Responding to Each Item. For

each item or category, the response

must either state that inspection and

related activities will be permitted

as requested or state an objection to

the request, including the reasons.

(C) Objections. An objection to part of

a request must specify the part and

permit inspection of the rest.

(D) Responding to a Request for

Production of Electronically

Stored Information. The response

may state an objection to a

requested form for producing

electronically stored information. If

the responding party objects to a

requested form—or if no form was

specified in the request—the party

must state the form or forms it

intends to use.

(E) Producing the Documents or

Electronically Stored Information.

Unless otherwise stipulated or

ordered by the court, these

procedures apply to producing

documents or electronically stored

information:

(i) A party must produce

documents as they are kept in

the usual course of business or

must organize and label them

to correspond to the categories

in the request;

(ii) If a request does not specify a

form fo r pro ducing

e l e c t r o n i c a l l y stored

information, a party must

produce it in a form or forms

in which it is ordinarily

maintained or in a reasonably

usable form or forms; and

(iii) A party need not produce the

same electronically stored

information in more than one

form. 

(c) Nonparties. As provided in RCFC 45, a

nonparty may be compelled to produce

documents and tangible things or to permit an

inspection. 

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

Nov. 15, 2007, Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 34 is identical to FRCP 34. 

2007 Amendment

RCFC 34 has been amended to reflect the

corresponding changes to FRCP 34 that became
RCFC 35 and 36 58

effective December 1, 2006. 

2008 Amendment

The language of RCFC 34 has been amended

to conform to the general restyling of the FRCP.

Rule 35. Physical and Mental Examinations

(a) Order for an Examination.

(1) In General. The court may order a party

who se men t a l o r ph y sical

condition—including blood group—is in

controversy to submit to a physical or

mental examination by a suitably

licensed or certified examiner. The court

has the same authority to order a party to

produce for examination a person who is

in its custody or under its legal control.

(2) Motion and Notice; Contents of the

Order. The order: 

(A) may be made only on motion for

good cause and on notice to all

parties and the person to be

examined; and

(B) must specify the time, place,

manner, conditions, and scope of

the examination, as well as the

person or persons who will perform

it. 

(b) Examiner’s Report.

(1) Request by the Party or Person

Examined. The party who moved for the

examination must, on request, deliver to

the requester a copy of the examiner’s

report, together with like reports of all

earlier examinations of the same

condition. The request may be made by

the party against whom the examination

order was issued or by the person

examined.

(2) Contents. The examiner’s report must

be in writing and must set out in detail

the examiner’s findings, including

diagnoses, conclusions, and the results of

any tests.

(3) Request by the Moving Party. After

delivering the reports, the party who

moved for the examination may

request—and is entitled to receive—from

the party against whom the examination

order was issued like reports of all earlier

or later examinations of the same

condition. But those reports need not be

delivered by the party with custody or

control of the person examined if the

party showsthat it could not obtain them.

(4) Waiver of Privilege. By requesting and

obtaining the examiner’s report, or by

deposing the examiner, the party

examined waives any privilege it may

have—in that action or any other action

i n v o l v i n g t h e s a m e

controversy—concerning testimony

about all examinations of the same

condition.

(5) Failure to Deliver a Report. The court

on motion may order—on just

terms—that a party deliver the report of

an examination. If the report is not

provided, the court may exclude the

examiner’s testimony at trial.

(6) Scope. This subdivision (b) applies also

to an examination made by the parties’

agreement, unless the agreement states

otherwise. This subdivision does not

preclude obtaining an examiner’s report

or deposing an examiner under other

rules. 

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 35 is identical to FRCP 35, except for

the omission of the words “in which the action is

pending” in subdivision (a). 

2008 Amendment

The language of RCFC 35 has been amended

to conform to the general restyling of the FRCP.

Rule 36. Requests for Admission
59 RCFC 37

(a) Scope and Procedure.

(1) Scope. A party may serve on any other

party a written request to admit, for

purposes of the pending action only, the

truth of any matters within the scope of

RCFC 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. A

request to admit the genuineness of a

document must be accompanied by a

copy of the document unless it is, or has

been, otherwise furnished or made

available for inspection and copying.

(3) Time to Respond; Effect of Not

Responding. A matter is admitted

unless, within 30 days after being served,

the party to whom the request is directed

serves on the requesting party a written

answer or objection addressed to the

matter and signed by the party or its

attorney. A shorter or longer time for

responding may be stipulated to under

RCFC 29 or be ordered by the court.

(4) Answer. If a matter is not admitted, the

answer must specifically deny it or state

in detail why the answering party cannot

truthfully admit or deny it. A denial

must fairly respond to the substance of

the matter; and when good faith requires

that a party qualify an answer or deny

only a part of a matter, the answer must

specify the part admitted and qualify or

deny the rest. The answering party may

assert lack of knowledge or information

as a reason for failing to admit or deny

only if the party states that it has made

reasonable inquiry and that the

information it knows or can readily

obtain is insufficient to enable it to admit

or deny. 

(5) Objections. The grounds for objecting to

a request must be stated. A party must

not object solely on the ground that the

request presents a genuine issue for trial.

(6) Motion Regarding the Sufficiency of an

Answer or Objection. The requesting

party may move to determine the

sufficiency of an answer or objection.

Unless the court finds an objection

justified, it must order that an answer be

served. On finding that an answer does

not comply with this rule, the court may

order either that the matter is admitted or

that an amended answer be served. The

court may defer its final decision until a

pretrial conference or a specified time

before trial. RCFC 37(a)(5) applies to an

award of expenses. 

(b) Effect of an Admission; Withdrawing or

Amending It. A matter admitted under this

rule is conclusively established unless the

court, on motion, permits the admission to be

withdrawn or amended. Subject to RCFC

16(e), the court may permit withdrawal or

amendment if it would promote the

presentation of the merits of the action and if

the court is not persuaded that it would

prejudice the requesting party in maintaining

or defending the action on the merits. An

admission under this rule is not an admission

for any other purpose and cannot be used

against the party in any other proceeding. 

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 36 is identical to FRCP 36. 

2008 Amendment

The language of RCFC 36 has been amended

to conform to the general restyling of the FRCP.

Rule 37. Failure to Make Disclosures or to

Cooperate in Discovery; Sanctions

(a) Motion for an Order Compelling

Disclosure or Discovery. 
RCFC 37 (cont.) 60

(1) In General. On notice to other parties

and all affected persons, a party may

move for an order compelling disclosure

or discovery. The motion must include a

certification that the movant has in good

faith conferred or attempted to confer

with the person or party failing to make

disclosure or discovery in an effort to

obtain it without court action.

(2) Appropriate Court. [Not used.]

(3) Specific Motions. 

(A) To Compel Disclosure. If a party

fails to make a disclosure required

by RCFC 26(a), any other party may

move to compel disclosure and for

appropriate sanctions. 

(B) To Compel a Discovery Response.

A party seeking discovery may

move for an order compelling an

answer, designation, production, or

inspection. This motion may be

made if:

(i) a deponent fails to answer a

question asked under RCFC 30

or 31;

(ii) a corporation or other entity

fails to make a designation

under RCFC 30(b)(6) or

31(a)(4);

(iii) a party fails to answer an

interrogatory submitted under

RCFC 33; or

(iv) a party fails to respond that

insp ection will b e

permitted—or fails to permit

inspection—as requested under

RCFC 34.

(C) Related to a Deposition. When

taking an oral deposition, the party

asking a question may complete or

adjourn the examination before

moving for an order.

(4) Evasive or Incomplete Disclosure,

Answer, or Response. For purposes of

this subdivision (a), an evasive or

incomplete disclosure, answer, or

response must be treated as a failure to

disclose, answer, or respond.

(5) Payment of Expenses; Protective

Orders. 

(A) If the Motion Is Granted (or

Disclosure or Discovery Is

Provided After Filing). If the

motion is granted—or if the

disclosure or requested discovery is

provided after the motion was

filed—the court must, after giving

an opportunity to be heard, require

the party or deponent whose

conduct necessitated the motion, the

party or attorney advising that

conduct, or both to pay the

movant’s reasonable expenses

incurred in making the motion,

including attorney’s fees. But the

court must not order this payment

if:

(i) the movant filed the motion

before attempting in good faith

to obtain the disclosure or

discovery without court action;

(ii) t h e o p p o si n g p a r t y ’ s

nondisclosure, response, or

objection was substantially

justified; or

(iii) other circumstances make an

award of expenses unjust.

(B) If the Motion Is Denied. If the

motion is denied, the court may

issue any protective order

authorized under RCFC 26(c) and

must, after giving an opportunity to

be heard, require the movant, the

attorney filing the motion, or both

to pay the party or deponent who

opposed the motion its reasonable

expenses incurred in opposing the

motion, including attorney’s fees.

But the court must not order this

payment if the motion was

substantially justified or other

circumstances make an award of
61 RCFC 37 (cont.)

expenses unjust.

(C) If the Motion Is Granted in Part

and Denied in Part. If the motion

is granted in part and denied in part,

the court may issue any protective

order authorized under RCFC 26(c)

and may, after giving an opportunity

to be heard, apportion the

reasonable 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 to

answer a question and the deponent fails

to obey, the failure may be treated as

contempt 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 a

witness designated under RCFC

30(b)(6) or 31(a)(4)—fails to obey

an order to provide or permit

discovery, including an order under

RCFC 16(b), 35, or 37(a), the court

may issue further just orders. They

may include the following:

(i) directing that the matters

embraced in the order or other

designated facts be taken as

established for purposes of the

action, as the prevailing party

claims;

(ii) prohibiting the disobedient

party from supporting or

opposing designated claims or

defenses, or from introducing

designated matters in evidence;

(iii) striking pleadings in whole or

in part;

(iv) staying further proceedings

until the order is obeyed;

(v) dismissing the action or

proceeding in whole or in part;

(vi) rendering a default judgment

against the disobedient party;

or

(vii) treating as contempt of court

the failure to obey any order

except an order to submit to a

physi c a l or m ental

examination.

(B) For Not Producing a Person for

Examination. If a party fails to

comply with an order under RCFC

35(a) requiring it to produce another

person for examination, the court

may issue any of the orders listed in

RCFC 37(b)(2)(A)(i)–(vi), unless

the 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 disobedient

party, the attorney advising that

party, or both to pay the reasonable

expenses, including attorney’s fees,

caused by the failure, unless the

failure was substantially justified or

other circumstances make an award

of expenses unjust.

(c) Failure to Disclose, to Supplement an

Earlier Response, or to Admit.

(1) Failure to Disclose or Supplement. If a

party fails to provide information or

identify a witness as required by RCFC

26(a) or (e), the party is not allowed to

use that information or witness to supply

evidence on a motion, at a hearing, or at

a trial, unless the failure was

substantially justified or is harmless. In

addition to or instead of this sanction, the

court, on motion and after giving an

opportunity to be heard:

(A) may order payment of the

reasonable expenses, including

attorney’s fees, caused by the

failure;

(B) [not used]; and

(C) may impose other appropriate

sanctions, including any of the

ord e rs listed in RC FC

37(b)(2)(A)(i)–(vi). 
RCFC 37 (cont.) 62

(2) Failure to Admit. If a party fails to

admit what is requested under RCFC 36

and if the requesting party later proves a

document to be genuine or the matter

true, the requesting party may move that

the party who failed to admit pay the

reasonable expenses, including

attorney’s fees, incurred in making that

proof. 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;

(C) the party failing to admit had a

reasonable ground to believe that it

might prevail on the matter; or

(D) there was other good reason for the

failure to admit. 

(d) Party’s Failure to Attend Its Own

Depositi on, Se rv e Answer s t o

Interrogatories, or Respond to a Request

for Inspection.

(1) In General.

(A) Motion; Grounds for Sanctions.

The court may, on motion, order

sanctions if:

(i) a party or a party’s officer,

dir e ctor, or managing

agent—or a person designated

under RCFC 30(b)(6) or

31(a)(4)—fails, after being

served with proper notice, to

appear for that person’s

deposition; or 

(ii) a party, after being properly

served with interrogatories

under RCFC 33 or a request

for inspection under RCFC 34,

fails to serve its answers,

objections, or written response.

(B) Certification. A motion for

sanctions for failing to answer or

respond must include a certification

that the movant has in good faith

conferred or attempted to confer

with the party failing to act in an

effort to obtain the answer or

response 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 the discovery sought was

objectionable, unless the party failing to

act has a pending motion for a protective

order under RCFC 26(c).

(3) Types of Sanctions. Sanctions may

include any of the orders listed in RCFC

37(b)(2)(A)(i)–(vi). Instead of or in

addition to these sanctions, the court

must require the party failing to act, the

attorney advising that party, or both to

pay the reasonable expenses, including

attorney’s fees, caused by the failure,

unless the failure was substantially

justified or other circumstances make an

award of expenses unjust. 

(e) Failure to Provide Electronically Stored

Information. Absent exceptional

circumstances, a court may not impose

sanctions under these rules on a party for

failing to provide electronically stored

information lost as a result of the routine,

good-faith operation of an electronic

information system. 

(f) Failure to Participate in Framing a

Discovery Plan. If a party or its attorney fails

to participate in good faith in developing and

submitting a proposed discovery plan as

required by Appendix A ¶ 3, the court may,

after giving an opportunity to be heard,

require that party or attorney to pay to any

other party the reasonable expenses, including

attorney’s fees, caused by the failure. 

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

Nov. 15, 2007, Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 37 parallels the structure and content of

FRCP 37. The limited number of differences

between the two rules reflects those necessary for
63 RCFC 38, 39, 40, 40.1, and 40.2

compatibility with the jurisdiction and other rules

of the court. 

2007 Amendment

RCFC 37 has been amended to reflect the

corresponding changes to FRCP 37 that became

effective December 1, 2006. 

2008 Amendment

The language of RCFC 37 has been amended

to conform to the general restyling of the FRCP.

TITLE VI. TRIALS

Rule 38. Right to a Jury Trial; Demand [Not

used.]

Rule 39. Trial by Jury or by the Court [Not

used.]

Rule 40. Scheduling Cases for Trial

The judge to whom a case is assigned is

responsible for setting the case for trial by filing an

order with the clerk. The court must give priority

to actions entitled to priority by a federal statute. 

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 40 parallels, but is not identical to,

FRCP 40. Like its FRCP counterpart, however, the

purpose of the rule is to identify the responsibility

of the judge in scheduling a matter for trial. The

changes made to the text of the rule are minor and

intended to clarify the rule’s essential purpose, i.e.,

that it is the judge’s responsibility to determine the

date and place of trial in accordance with 28 U.S.C.

§§ 173, 798(a), and 2503(c). 

2008 Amendment

The language of RCFC 40 has been amended

to conform to the general restyling of the FRCP. 

Rule 40.1. Assigning and Transferring

Cases

(a) Random Assignment. After a complaint is

served on the United States, or after recusal or

disqualification of a judge to whom the case is

assigned, the case will be assigned (or

reassigned) to a judge at random. 

(b) Transfer. To promote docket efficiency, to

conform to the requirements of any case

management plan, or for the efficient

administration of justice, the assigned judge,

either on a party’s motion or on the court’s

own initiative, may order the transfer of a case

to another judge upon the agreement of both

judges.

(c) Transfer by the Chief Judge. The chief

judge may reassign any case upon a finding

that the transfer is necessary for the efficient

administration of justice. 

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 40.1 has no FRCP counterpart. The

substance of the rule formerly appeared in these

rules as part of paragraph (1) of RCFC 77(f). The

renumbering of RCFC 77(f) reflects its more

logical placement in the structure of the court’s

rules.

The new language introduced by the

rule—subdivision (b)—represents a codification of

internal procedures.

2008 Amendment

The language of RCFC 40.1 has been

amended to conform to the general restyling of the

FRCP. 

Rule 40.2. Related Cases

(a) Directly Related Cases.

(1) In General. If a party is aware of the

existence of any directly related case(s),

the party must file a Notice of Directly

Related Case(s). 
RCFC 40.2 (cont.) 64

(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 similar

claims; 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 directly

related cases;

(ii) must explain why the cases

qualify for treatment as

directly related cases under

RCFC 40.2(a)(2);

(iii) must state whether assigning

the cases to a single judge can

be expected to conserve

judicial resources and promote

the efficient administration of

justice; and

(iv) if filed after the case has been

assigned, may be accompanied

by a motion to transfer

pursuant to RCFC 40.1 or for

consolidation pursuant to

RCFC 42.1. 

(B) Filing. A party must file the Notice

of 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 directly

related cases becomes apparent

only after initial assignment.

Counsel may appear in the

earliest-filed case solely for

purposes of filing the notice.

The clerk must file copies of the

notice in all of the directly related

cases.

(C) Service. A party must serve the

Notice 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 the

judge to whom the earliest-filed

case is assigned. If the judge

determines that the case is not in

fact directly related to the earliestfiled case, the judge will return the

case to the clerk for random

reassignment.

(B) When a Notice of Directly Related

Case(s) is filed after a case has been

assigned and is accompanied by a

motion to transfer or for

consolidation, the judge in the

earliest-filed case, after consultation

with the judge(s) in the later-filed

case(s), will grant or deny the

motion to transfer or for

consolidation. 

(b) Indirectly Related Cases.

(1) In General. If a party is aware of the

existence of any indirectly related

case(s), the party may file a Notice of

Indirectly 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 be

expected significantly to promote

the efficient administration of

justice. 

(3) Notice. 

(A) Contents. The Notice of Indirectly

Related Case(s):

(i) must identify the title and

docket number of all indirectly

related cases; and

(ii) must explain why the cases

qualify for treatment as

indirectly related cases under

RCFC 40.2(b)(2).

(B) Filing. A party must file the Notice
65 RCFC 40.3

of Indirectly Related Case(s) in the

earliest-filed related case. Counsel

may appear in the earliest-filed case

solely for purposes of filing the

notice or responding to the notice

under RCFC 40.2 (b)(3)(C). The

clerk must file copies of the notice

in all of the indirectly related cases

and must provide a courtesy copy of

the notice to the chief judge. 

(C) Service. A party must serve the

Notice of Indirectly Related Case(s)

on all parties in the related cases.

(D) Responding. Any response to the

notice must be filed in the earliestfiled case within 21 days after

service of the notice and must be

served on all parties in the related

cases. The clerk must file copies of

the response in all of the related

cases and must provide a courtesy

copy of the response to the chief

judge. 

(4) Treatment of Indirectly Related Cases.

When a Notice of Indirectly Related

Case(s) is filed, the judge in the earliestfiled case will call a meeting of all of the

assigned judges to determine what

action, if any, is appropriate. All parties

in the related cases will be notified of the

determination reached. 

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 40.2 has no FRCP counterpart. The

subject of the rule—Related Cases—previously

appeared in these rules as RCFC 77(f) (as revised

by General Order No. 36). The renumbering of the

rule reflects its more logical placement in the

structure of the court’s rules.

Unlike the predecessor rule, RCFC 40.2

recognizes two types of related cases: directly

related cases and indirectly related cases. Directly

related cases retain the definition that applied

under former RCFC 77(f). Thus, cases that

“involve the same parties and are based on the

same or similar claims” or “involve the same

contract, property, or patent” are deemed to be

directly related. Cases that are directly related

share an identity of parties and/or subject matter

that, for the sake of consistency in outcome,

warrant their assignment to a single judge.

Indirectly related cases, by contrast, share only

“common issues of fact.” In the interests of

efficiency and the conservation of resources, such

cases may warrant consolidated management

during the pretrial stage.

In addition to recognizing two forms of related

cases, RCFC 40.2 also prescribes the notice

procedures that are to be followed for the

identification of such cases to the court and

interested counsel.

2008 Amendment

The language of RCFC 40.2 has been

amended to conform to the general restyling of the

FRCP. 

In addition, the text of subdivision (a) has

been modified to clarify that it is the clerk’s

responsibility to file a notice of directly related

cases in all related cases. The change thus adopts

the same notice procedure that is prescribed for

indirectly related cases under subdivision (b) of

this rule. 

Rule 40.3. Complaints Against Judges

(a) In General. A written complaint may be filed

with the clerk against any judge of the court

who has:

(1) engaged in conduct prejudicial to the

effective and expeditious administration

of the business of the court; or

(2) is unable to discharge all duties of the

office by reason of mental or physical

disability. 

(b) Rules Governing Complaints. A copy of the

applicable rules, titled “Rules for JudicialConduct and Judicial-Disability Proceedings,”

is available on the court’s website at
RCFC 41 66

www.uscfc.uscourts.gov or may be obtained

by contacting the Office of the Clerk of the

United States Court of Federal Claims, 717

Madison Place, NW, Washington, DC 20005.

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

Aug. 1, 2004, Apr. 10, 2008, Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 40.3 has no FRCP counterpart.

However, the notice provided by the rule is in

accordance with the recommendations of the

Judicial Conference of the United States, urging

that such notice be made part of the court’s rules.

The rule replaces former Appendix B

(“Procedures for Processing Complaints of Judicial

Misconduct”) and its supplementing order, General

Order No. 34 dated June 3, 1993. Inclusion of the

rule as a subpart of RCFC 40 is intended to further

a more coherent organizational structure of the

court’s rules. 

2004 Amendment

Pursuant to the Judicial Improvements Act of

2002, Pub. L. No. 107-203, 116 Stat. 1758, the

statutory directive requiring the court’s issuance of

rules for the filing of complaints of judicial

misconduct, originally set forth in the Judicial

Conduct and Disability Act of 1980, 28 U.S.C.

§ 372(c)(1)–(18), was amended and recodified as

28 U.S.C. §§ 351–364. This change is reflected in

the 2004 amendment to RCFC 40.3 in the opening

sentence of subdivision (a) by the deletion of the

former statutory reference and the substitution of

the new statutory reference.

Additionally, the rule has been amended to

include notice of the availability on the court’s

website of the Rules of the United States Court of

Federal Claims Governing Complaints of Judicial

Misconduct and Disability. 

2008 Amendments

RCFC 40.3(b) has been amended to reflect the

change in the title of the rules establishing

standards and procedures for addressing complaints

against judges, as revised and promulgated by the

Judicial Conference of the United States pursuant

to 28 U.S.C. §§ 351–364 on March 11, 2008. 

The language of RCFC 40.3 has been

amended to conform to the general restyling of the

FRCP. 

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 any

applicable federal statute, the

plaintiff may dismiss an action

without a court order by filing:

(i) a notice of dismissal before the

opposing party serves either an

answer or a motion for

summary judgment; or

(ii) a stipulation of dismissal

signed by all parties who have

appeared.

(B) Effect. Unless the notice or

stipulation states otherwise, the

dismissal is without prejudice. But

if the plaintiff previously dismissed

any federal- or state-court action

based on or including the same

claim, a notice of dismissal operates

as an adjudication on the merits. 

(2) By Court Order; Effect. Except as

provided in RCFC 41(a)(1), an action

may be dismissed at the plaintiff’s

request only by court order, on terms that

the court considers proper. If the

defendant has pleaded a counterclaim

before being served with the plaintiff’s

motion to dismiss, the action may be

dismissed over the defendant’s objection

only if the counterclaim can remain

pending for independent adjudication.

Unless the order states otherwise, a

dismissal under this paragraph (2) is

without prejudice.

(b) Involuntary Dismissal; Effect. If the

plaintiff fails to prosecute or to comply with
67 RCFC 42 and 42.1

these rules or a court order, the court may

dismiss on its own motion or the defendant

may move to dismiss the action or any claim

against it. Unless the dismissal order states

otherwise, a dismissal under this subdivision

(b) and any dismissal not under this

rule—except one for lack of jurisdiction or

failure to join a party under RCFC

19—operates as an adjudication on the merits.

(c) Dismissing a Counterclaim or Third-Party

Claim. This rule applies to a dismissal of any

counterclaim or third-party claim. A

claimant’s voluntary dismissal under RCFC

41(a)(1)(A)(i) must be made:

(1) before a responsive pleading is served; or

(2) if there is no responsive pleading, before

evidence is introduced at a hearing or

trial. 

(d) Costs of a Previously Dismissed Action. If

a plaintiff who previously dismissed an action

in any court files an action based on or

including the same claim against the

defendant, 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

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

Minor changes have been made to more

closely conform to FRCP 41. Substantively,

however, the rule remains unchanged.

2008 Amendment

The language of RCFC 41 has been amended

to conform to the general restyling of the FRCP. 

Rule 42. Consolidation; Separate Trials

(a) Consolidation. If actions before the court

involve a common question of law or fact, the

court 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, the

court may order a separate trial of one or more

separate issues, claims, counterclaims, or

third-party claims. 

(c) Separate Determinations of Liability and

Damages. 

(1) In General. On stipulation of the parties

or on its own, the court may at any time

order that issues of liability and issues of

damages be addressed in separate

proceedings. 

(2) Motion for Reconsideration. The

parties may file a motion for

reconsideration within 14 days after a

separate determination of liability. 

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

Nov. 3, 2008, Jan. 11, 2010.) 

Rules Committee Notes

2002 Revision

RCFC 42 remains unchanged. Thus, as

before, the rule parallels in part FRCP 42 and, in

addition, includes subdivision (c) (“Separate

Determination of Liability”) permitting the liability

phase of a lawsuit to be separated from, and

decided independently of, the quantum phase.

2008 Amendment

The language of RCFC 42 has been amended

to conform to the general restyling of the FRCP. 

2010 Amendment

The time period of 10 days formerly set forth

in RCFC 42 has been changed to 14 days in

accordance with the FRCP’s general guidelines for

time computation that became effective December

1, 2009.

Rule 42.1. Motion to Consolidate

(a) Consolidating Cases Assigned to the Same
RCFC 43 and 44 68

Judge. If a party seeks to consolidate cases

assigned to the same judge, the party must file

a motion to consolidate in each of the relevant

cases.

(b) Consolidating Cases Assigned to Different

Judges. If a party seeks to consolidate cases

assigned to different judges, the party must

file a motion to transfer pursuant to RCFC

40.1, suggesting the appropriateness of

consolidation.

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 42.1 has no FRCP counterpart. It

identifies the procedure applicable to motions for

the consolidation of actions pending before

different judges.

2008 Amendment

The language of RCFC 38 has been amended

to conform to the general restyling of the FRCP. 

Rule 43. Taking Testimony

(a) In Open Court. At trial, the witnesses’

testimony must be taken in open court unless

a federal statute, the Federal Rules of

Evidence, these rules, or other rules adopted

by the Supreme Court provide otherwise. For

good cause in compelling circumstances and

with appropriate safeguards, the court may

permit testimony in open court by

contemporaneous transmission from a

different location.

(b) Affirmation Instead of an Oath. When

these rules require an oath, a solemn

affirmation suffices.

(c) Evidence on a Motion. When a motion relies

on facts outside the record, the court may hear

the matter on affidavits or may hear it wholly

or partly on oral testimony or on depositions.

(d) Interpreter. The court may appoint an

interpreter of its choosing; fix reasonable

compensation to be paid from funds provided

by law or by one or more parties; and tax the

compensation as costs. 

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 43 is identical to FRCP 43. 

2008 Amendment

The language of RCFC 43 has been amended

to conform to the general restyling of the FRCP. 

Rule 44. Proving an Official Record

(a) Means of Proving.

(1) Domestic Record. Each of the following

evidences an official record—or an entry

in it—that is otherwise admissible and is

kept within the United States, any state,

district, or commonwealth, or any

territory subject to the administrative or

judicial 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 by

the officer’s deputy—and

accompanied by a certificate that

the officer has custody. The

certificate must be made under seal:

(i) by a judge of a court of record

in the district or political

subdivision where the record is

kept; or

(ii) by any public officer with a

seal of office and with official

duties in the district or political

subdivision where the record is

kept.

(2) Foreign Record.

(A) In General. Each of the following

evidences a foreign official

record—or an entry in it—that is

otherwise admissible:

(i) an official publication of the
69 RCFC 44.1 and 45

record; or

(ii) the record—or a copy—that is

attested by an authorized

person and is accompanied

either by a final certification of

gen uinene ss or by a

certification under a treaty or

convention to which the

United States and the country

where the record is located are

parties. 

(B) Fin al Certificat i on o f

Genuineness. A final certification

must certify the genuineness of the

signature and official position of the

attester or of any foreign official

whose certificate of genuineness

relates to the attestation or is in a

chain of certificates of genuineness

relating to the attestation. A final

certification may be made by a

secretary of a United States

embassy or legation; by a consul

general, vice consul, or consular

agent of the United States; or by a

diplomatic or consular official of

the foreign country assigned or

accredited to the United States.

(C) Other Means of Proof. If all

parties have had a reasonable

opportunity to investigate a foreign

record’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 attested

summary with or without a

final certification. 

(b) Lack of a Record. A written statement that

a diligent search of designated records

revealed no record or entry of a specified

tenor is admissible as evidence that the

records contain no such record or entry. For

domestic records, the statement must be

authenticated under RCFC 44(a)(1). For

foreign records, the statement must comply

with (a)(2)(C)(ii).

(c) Other Proof. A party may prove an official

record—or an entry or lack of an entry in

it—by any other method authorized by law. 

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 44 is identical to FRCP 44. 

2008 Amendment

The language of RCFC 44 has been amended

to conform to the general restyling of the FRCP. 

Rule 44.1. Determining Foreign Law

A party who intends to raise an issue about a

foreign country’s law must give notice by a

pleading or other writing. In determining foreign

law, the court may consider any relevant material

or source, including testimony, whether or not

submitted by a party or admissible under the

Federal Rules of Evidence. The court’s

determination must be treated as a ruling on a

question of law. 

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 44.1 is identical to FRCP 44.1.

2008 Amendment

The language of RCFC 44.1 has been

amended to conform to the general restyling of the

FRCP. 

Rule 45. Subpoena

(a) In General. 

(1) Form (See Appendix of Forms, Forms

6 and 7A) and Contents.

(A) Requirements—In General. Every
RCFC 45 (cont.) 70

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 the

following at a specified time

and place: attend and testify;

produce designated documents,

elec t r o n i c a l l y st ored

information, or tangible things

in that person’s possession,

custody, or control; or permit

the inspection of premises; and

(iv) set out the text of RCFC 45(c)

and (d).

(B) Comm a n d t o A ttend a

Deposition—Notice of the

Recording Method. A subpoena

commanding attendance at a

deposition must state the method for

recording the testimony.

(C) Combining or Separating a

Command to Produce or to Permit

Inspection; Specifying the Form

for Electronically Stored

Information. A command to

produce documents, electronically

stored information, or tangible

things or to permit the inspection of

premises may be included in a

subpoena commanding attendance

at a deposition, hearing, or trial, or

may be set out in a separate

subpoena. A subpoena may specify

the form or forms in which

electronically stored information is

to be produced. 

(D) Command to Produce; Included

Obligations. A command in a

subpoena to produce documents,

electronically stored information, or

tangible things requires the

responding party to permit

inspection, copying, testing, or

sampling of the materials. 

(2) Issued from Which Court. [Not used.]

(3) Issued by Whom. The clerk must issue

a subpoena, signed but otherwise in

blank, to a party who requests it. That

party must complete it before service.

An attorney authorized to sign filings

under RCFC 83.1 also may issue and

sign a subpoena as an officer of the

court.

(b) Service.

(1) By Whom; Tendering Fees; Serving a

Copy of Certain Subpoenas. Any

person who is at least 18 years old and

not a party may serve a subpoena.

Serving a subpoena requires delivering a

copy to the named person and, if the

subpoena requires that person’s

attendance, tendering the fees for 1 day’s

attendance and the mileage allowed by

law. Fees and mileage need not be

tendered when the subpoena issues on

behalf of the United States or any of its

officers or agencies. If the subpoena

commands the production of documents,

electronically stored information, or

tangible things or the inspection of

premises before trial, then before it is

served, a notice must be served on each

party. 

(2) Service in the United States. Subject to

RCFC 45(c)(3)(A)(ii), a subpoena may

be served at any place:

(A) [not used];

(B) within 100 miles of the place

specified for the deposition,

hearing, trial, production, or

inspection; 

(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 and

serving a subpoena directed to a United

States national or resident who is in a

foreign country. 

(4) Proof of Service. Proving service, when
71 RCFC 45 (cont.)

necessary, requires filing with the court

a statement showing the date and manner

of service and the names of the persons

served. The statement must be certified

by the server. 

(c) Protecting a Person Subject to a Subpoena.

(1) Avoiding Undue Burden or Expense;

Sanctions. A party or attorney

responsible for issuing and serving a

subpoena must take reasonable steps to

avoid imposing undue burden or expense

on a person subject to the subpoena. The

court must enforce this duty and impose

an appropriate sanction—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 appear

for 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 attorney

designated in the subpoena a written

objection to inspecting, copying,

testing or sampling any or all of the

materials or to inspecting the

premises—or to producing

electronically stored information in

the form or forms requested. The

objection must be served before the

earlier 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 commanded to

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 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 specific

occurrences in dispute and
RCFC 45 (cont.) 72

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 or

modifying 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 electronically

stored information, the person

responding must produce it in a

form or forms in which it is

ordinarily maintained or in a

reasonably usable form or forms. 

(C) Electronically Stored Information

Produced in Only One Form. The

person responding need not produce

the same electronically stored

information in more than one form.

(D) Inaccessible Electronically Stored

Information. The person

responding need not provide

discovery of electronically stored

information from sources that the

person identifies as not reasonably

accessible because of undue burden

or cost. On motion to compel

discovery or for a protective order,

the person responding must show

that the information is not

reasonably accessible because of

undue burden or 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

withh o l d i n g s u b poen aed

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

withh eld d o c u me nts,

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 trialpreparation material, the person

making the claim may notify any

party that received the information

of the claim and the basis for it.
73 RCFC 46, 47, 48, 49, 50, 51, and 52

After being notified, a party must

promptly return, sequester, or

destroy the specified information

and any copies it has; must not use

or disclose the information until the

claim is resolved; must take

reasonable steps to retrieve the

information if the party disclosed it

before being notified; and may

promptly present the information to

the court under seal for a

determination of the claim. The

person who produced 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’s failure to obey must

be excused if the subpoena purports to require

the nonparty to attend or produce at a place

outside the limits of RCFC 45(c)(3)(A)(ii).

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

Nov. 15, 2007, Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 45 conforms to FRCP 45 to the extent

feasible given the court’s nationwide jurisdiction.

2007 Amendment

RCFC 45 has been amended to reflect the

corresponding changes to FRCP 45 that became

effective December 1, 2006.

2008 Amendment

The language of RCFC 45 has been amended

to conform to the general restyling of the FRCP. 

Rule 46. Objecting to a Ruling or Order

A formal exception to a ruling or order is

unnecessary. When the ruling or order is requested

or made, a party need only state the action that it

wants the court to take or objects to, along with the

grounds for the request or objection. Failing to

object does not prejudice a party who had no

opportunity to do so when the ruling or order was

made.

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

Nov. 3, 2008.)

Rules Committee Notes

2002 Revision

RCFC 46 is identical to FRCP 46. 

2008 Amendment

The language of RCFC 46 has been amended

to conform to the general restyling of the FRCP. 

Rule 47. Selecting Jurors [Not used.]

Rule 48. Number of Jurors; Verdict [Not used.]

Rule 49. Special Verdict; General Verdict and

Questions [Not used.]

Rule 50. Judgment as a Matter of Law in a

Jury Trial; Related Motion for a New

Trial; Conditional Ruling [Not used.]

Rule 51. Instructions to the Jury; Objections;

Preserving a Claim of Error [Not

used.]

Rule 52. Findings and Conclusions by the

Court; Judgment on Partial Findings

(a) Findings and Conclusions.

(1) In General. In an action tried on the

facts, the court must find the facts

specially and state its conclusions of law

separately. The findings and conclusions

may be stated on the record after the

close of the evidence or may appear in an

opinion or a memorandum of decision

filed by the court. Judgment must be

entered under RCFC 58.

(2) For an Interlocutory Injunction. In

granting or refusing an interlocutory

injunction, the court must similarly state
RCFC 52.1 74

the findings and conclusions that support

its action.

(3) For a Motion. The court is not required

to state findings or conclusions when

ruling on a motion under RCFC 12 or 56

or, unless these rules provide otherwise,

on any other motion.

(4) Effect of a Master’s Findings. [Not

used.]

(5) Questioning the Evidentiary Support. A

party may later question the sufficiency

of the evidence supporting the findings,

whether or not the party requested

findings, objected to them, moved to

amend them, or moved for partial

findings.

(6) Setting Aside the Findings. Findings of

fact, whether based on oral or other

evidence, must not be set aside unless

clearly erroneous, and the reviewing

court must give due regard to the trial

court’s opportunity to judge the

witnesses’ credibility. 

(b) Amended or Additional Findings. On a

party’s motion filed no later than 30 days after

the entry of judgment, the court may amend

its findings—or make additional

findings—and may amend the judgment

accordingly. The motion may accompany a

motion for a new trial under RCFC 59.

(c) Judgment on Partial Findings. If a party

has been fully heard on an issue during trial

and the court finds against the party on that

issue, the court may enter judgment against

the party on a claim or defense that, under the

controlling law, can be maintained or defeated

only with a favorable finding on that issue.

The court may, however, decline to render any

judgment until the close of the evidence. A

judgment on partial findings must be

supported by findings of fact and conclusions

of law as required by RCFC 52(a). 

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

Nov. 3, 2008, Jan. 11, 2010.) 

Rules Committee Notes

2002 Revision

The principal change in RCFC 52 relates to

the enlargement of subdivision (c) to include,

among issues subject to judgment on partial

findings, the adjudication of issues critical to the

legal sufficiency of a “defense.” The amendment

makes clear that judgments as a matter of law may

be entered against both plaintiffs and defendants

and with respect to issues or defenses that may not

be wholly dispositive of a claim or defense. 

2008 Amendment

The language of RCFC 52 has been amended

to conform to the general restyling of the FRCP. 

2010 Amendment

RCFC 52(b) has been amended to change the

period for filing a post-judgment motion from 10 to

30 days in accordance with the corresponding

change to FRCP 52(b) that became effective

December 1, 2009. RCFC 6(b) continues to

prohibit any extension of the time allowed under

this rule. 

Rule 52.1. Administrative Record

(a) In General. When proceedings before an

agency are relevant to a decision in a case, the

administrative record of those proceedings

must be certified by the agency and filed with

the court.

(b) Time for Filing. The court may establish a

time for filing the administrative record by

order.

(c) Motions for Judgment on the

Administrative Record. 

(1) Initial Motion. Absent an order by the

court establishing a different procedure,

a party may move for partial or other

judgment on the administrative record

and must include in its motion or

supporting memorandum a statement of

facts that draws upon and cites to the

portions of the administrative record that

bear on the issues presented to the court.

(2) Response. A party opposing a motion
75 RCFC 52.2

based on the administrative record must

include in any response a counterstatement of facts that similarly draws

upon and cites to the administrative

record.

(Added June 20, 2006; as amended Nov. 3, 2008.)

Rules Committee Notes

2006 Adoption

RCFC 52.1 has no FRCP counterpart. The

rule replaces an earlier rule, RCFC 56.1, that

applied certain standards borrowed from the

procedure for summary judgment to review of an

agency decision on the basis of an administrative

record. That incorporation proved to be confusing

in practice because only a portion of the summary

judgment standards were borrowed. Summary

judgment standards are not pertinent to judicial

review upon an administrative record. See

Bannum, Inc. v. United States, 404 F.3d 1346,

1355–57 (Fed. Cir. 2005). Specifically, the nowrepealed Rule 56.1 did not adopt the overall

standard that summary judgment might be

appropriate where there were no genuine issues of

material fact. See RCFC 56(c). Nonetheless,

despite this omission, parties, in moving for

judgment on the administrative record under the

prior rule, frequently would contest whether the

administrative record showed the existence of a

genuine dispute of material fact. To avoid this

confusion, the new rule omits any reference to

summary judgment or to the standards applicable

to summary judgment.

Cases filed in this court frequently turn only in

part on action taken by an administrative agency.

In such cases, the administrative record may

provide a factual and procedural predicate for a

portion of the court’s decision, while other

elements might be derived from a trial, an

evidentiary hearing, or summary judgment or other

judicial proceedings. This rule applies whether the

court’s decision is derived in whole or in part from

the agency action reflected in the administrative

record.

The standards and criteria governing the

court’s review of agency decisions vary depending

upon the specific law to be applied in particular

cases. The rule does not address those standards or

criteria. Correspondingly, any motion for

correction or supplementation of the administrative

record should be made on the basis of either the

specific law to be applied in the particular case or

generally applicable principles of administrative

law.

2008Amendment

The language of RCFC 52.1 has been

amended to conform to the general restyling of the

FRCP. 

Rule 52.2. Remanding a Case

(a) In General. In any case within its

jurisdiction, the court, on motion or on its

own, may order the remand of appropriate

matters to an administrative or executive body

or official. 

(b) Remand Order.

(1) Contents. An order remanding a case

must:

(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 during

the remand period; and

(D) designate a party to report to the

court, every 90 days or less, on the

status of the remand proceedings. 

(2) Service. A certified copy of the remand

order must be served by the clerk in

accordance with RCFC 5 on:

(A) each party; and

(B) the administrative or executive body

or official to whom the order is

directed.

(c) Administrative Record. After serving the

remand order, the clerk must transmit the

administrative record, if any, to the

Department of Justice for return to the

administrative or executive body or official to
RCFC 53 76

whom the order is directed. 

(d) Extending or Terminating the Stay of

Proceedings. If the administrative or

executive body or official to whom the

remand order is directed does not act on the

remand within the period of stay specified in

the 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 to

dispose of the case. 

(e) Completing Administrative Proceedings.

When the action directed under a remand

order is completed, the administrative or

executive body or official to whom the order

was directed must forward to the clerk for

filing 4 copies of the final decision or other

action taken. The clerk must serve each party

with a copy of the final decision or other

action. If the case is resolved at the

administrative level, the plaintiff must file a

motion 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 on

remand, each party must file with the

clerk and serve on each adverse party a

notice stating:

(A) whether the final decision or other

action on remand affords a

satisfactory basis for disposition of

the case; or

(B) whether further proceedings before

the court are required and, if so, the

nature of such proceedings. 

(2) Issuing an Order. After service of the

notice, the court will enter an order

prescribing the procedure to be followed

or directing any other action deemed

appropriate. 

(As revised and reissued May 1, 2002; as

renumbered June 20, 2006; as amended Nov. 3,

2008.)

Rules Committee Notes

2002 Revision and 2006 Amendment

RCFC 52.2 has no FRCP counterpart. The

rule formerly appeared in these rules as RCFC 60.1

and, following the court’s May 1, 2002, revision of

its rules, as RCFC 56.2. The first renumbering of

the rule (from RCFC 60.1 to RCFC 56.2) was

intended to reflect a more logical placement in the

organizational structure of the court’s rules; the

second renumbering (from RCFC 56.2 to RCFC

52.2) was attributable to a further change in the

organizational structure of the court’s rules as

reflected in the abrogation of related RCFC 56.1

and its replacement by new RCFC 52.1. 

2008 Amendment

The language of RCFC 52.2 has been

amended to conform to the general restyling of the

FRCP. 

Rule 53. Masters

(a) Appointment.

(1) Scope. Unless a statute provides

otherwise, the chief judge, at the request

of the assigned judge, may appoint a

master only to:

(A) perform duties consented to by the

parties;

(B) hold trial proceedings and make or

recommend findings of fact if

appointment is warranted by:

(i) some exceptional condition; or

(ii) the need to perform an

accounting or resolve a

difficult computation of

damages; or

(C) address pretrial and posttrial matters

that cannot be effectively and timely

addressed by the assigned judge. 

(2) Disqualification. A master must not

have a relationship to the parties,

attorneys, action, or assigned judge that

would require disqualification of a judge

under 28 U.S.C. § 455, unless the parties,

with the assigned judge’s approval,

consent to the appointment after the
77 RCFC 53 (cont.)

master discloses any potential grounds

for disqualification.

(3) Possible Expense or Delay. In

requesting the appointment of a master,

the assigned judge must consider the

fairness of imposing the likely expenses

on the parties and must protect against

unreasonable expense or delay. 

(b) Order Appointing a Master.

(1) Notice. Before requesting the

appointment of a master, the assigned

judge must give the parties notice and an

opportunity to be heard. Any party may

suggest to the assigned judge candidates

for appointment.

(2) Contents. The appointing order must

direct the master to proceed with all

reasonable diligence and must state:

(A) the master’s duties, including any

investigation or enforcement duties,

and any limits on the master’s

authority under RCFC 53(c);

(B) the circumstances, if any, in which

the master may communicate ex

parte with the assigned judge or a

party;

(C) the nature of the materials to be

preserved and filed as the record of

the master’s activities;

(D) the time limits, method of filing the

record, other procedures, and

standards for reviewing the master’s

orders, findin g s, and

recommendations; and

(E) the basis, terms, and procedure for

fixing the master’s compensation

under RCFC 53(g).

(3) Issuing. The assigned judge may request

an order appointing a master only after:

(A) the master files an affidavit

disclosing whether there is any

ground for disqualification under 28

U.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 a

master may be amended by the chief

judge at any time upon recommendation

of the assigned judge after the assigned

judge has given the parties notice and an

opportunity 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 fairly

and efficiently; and

(C) if conducting an evidentiary

hearing, exercise the assigned

judge’s power to compel, take, and

record evidence.

(2) Sanctions. The master may by order

impose on a party any noncontempt

sanction provided by RCFC 37 or 45,

and may recommend a contempt sanction

against a party and sanctions against a

nonparty.

(d) Master’s Orders. A master who issues an

order must file it and promptly serve a copy

on each party. The clerk must enter the order

on the docket.

(e) Master’s Reports. A master must report to

the assigned judge as required by the

appointing order. The master must file the

report and promptly serve a copy on each

party, unless the assigned judge orders

otherwise. 

(f) Action on the Master’s Order, Report, or

Recommendations.

(1) Opportunity for a Hearing; Action in

General. In acting on a master’s order,

report, or recommendations, the assigned

judge must give the parties notice and an

opportunity to be heard; may receive

evidence; and may adopt or affirm,

modify, wholly or partly reject or

reverse, or resubmit to the master with

instructions.

(2) Time to Object or Move to Adopt or

Modify. A party may file objections
RCFC 53 (cont.) 78

to—or a motion to adopt or modify—the

master’s o rder, report, or

recommendations no later than 21 days

after a copy is served, unless the

assigned judge sets a different time.

(3) Reviewing Factual Findings. The

assigned judge must decide de novo all

objections to findings of fact made or

recommended by a master, unless the

parties, with the assigned judge’s

approval, 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) will

be final

(4) Reviewing Legal Conclusions. The

assigned judge must decide de novo all

objections to conclusions of law made or

recommended by a master.

(5) Reviewing Procedural Matters. Unless

the appointing order establishes a

different standard of review, the assigned

judge may set aside a master’s ruling on

a procedural matter only for an abuse of

discretion.

(g) Compensation.

(1) Fixing Compensation. Before or after

judgment, the assigned judge must fix

the master’s compensation on the basis

and terms stated in the appointing order,

but a new basis and terms may be set by

the chief judge upon recommendation of

the assigned judge after the assigned

judge has given the parties notice and an

opportunity to be heard.

(2) Payment. The compensation must be

paid either:

(A) by a party or parties; or

(B) from a fund or subject matter of the

action within the assigned judge’s

control.

(3) Allocating Payment. The assigned judge

must allocate payment among the parties

after considering the nature and amount

of the controversy, the parties’ means,

and the extent to which any party is more

responsible than other parties for the

reference to a master. An interim

allocation may be amended to reflect a

decision on the merits. 

(h) Appointing a Magistrate Judge. [Not used.]

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

July 1, 2004, Nov. 3, 2008, Jan. 11, 2010.) 

Rules Committee Notes

2002 Revision

The text of RCFC 53 as revised on May 1,

2002, and its accompanying Rules Committee

Note, may be found at 51 Fed. Cl. LXXXV (2002)

or in Westlaw, database USCA03, search CI(RCFC

& 53). 

2004 Amendment

RCFC 53 adopts the significantly revised text

of FRCP 53, effective December 1, 2003, with

minor adjustments in language reflecting

differences in jurisdiction between this court and

the district courts. The principal adjustments in

language occur in the introductory text of

subdivision (a) which adds the words “the chief

judge, at the request of the assigned judge” as an

additional qualification to the appointment of a

master and in the related text of subdivisions (b)(4)

and (h)(1). The distinction between the roles of

chief judge and assigned judge is carried through

into the subdivisions of the rule where the words

“assigned judge” are substituted for the word

“court.” The added language addresses the fact

that pursuant to 28 U.S.C. § 798(c), the court’s

authority to appoint special masters to assist the

court in carrying out its functions rests exclusively

with the chief judge.

2008 Amendment

The language of RCFC 53 has been amended

to conform to the general restyling of the FRCP. 

This rule does not apply to special masters

appointed by the court to resolve Vaccine Act

cases covered in Appendix B to these rules. 
79 RCFC 54

2010 Amendment

The time period of 20 days formerly set forth

in RCFC 53(f)(2) has been changed to 21 days in

accordance with the corresponding change to

FRCP 53(f)(2) that became effective December 1,

2009.

TITLE VII. JUDGMENT

Rule 54. Judgment; Costs

(a) Definition; Form. “Judgment” as used in

these rules includes a decree and any order

from which an appeal lies. A judgment

should not include recitals of pleadings, a

master’s report, or a record of prior

proceedings.

(b) Judgment on Multiple Claims or Involving

Multiple Parties. When an action presents

more than one claim for relief—whether as a

claim, counterclaim, or third-party claim—or

when multiple parties are involved, the court

may direct entry of a final judgment as to one

or more, but fewer than all, claims or parties

only if the court expressly determines that

there is no just reason for delay. Otherwise,

any order or other decision, however

designated, that adjudicates fewer than all the

claims or the rights and liabilities of fewer

than all the parties does not end the action as

to any of the claims or parties and may be

revised at any time before the entry of a

judgment adjudicating all the claims and all

the parties’ rights and liabilities. 

(c) Demand for Judgment; Relief to Be

Granted. A default judgment must not differ

in kind from, or exceed in amount, what is

demanded in the pleadings. Every other final

judgment should grant the relief to which each

party is entitled, even if the party has not

demanded 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 party

to the extent permitted by law. See 28

U.S.C. § 2412(a). 

(A) Filing a Bill of Costs. A claim for

allowable costs must be made by

filing a Bill of Costs with the clerk.

See Appendix of Forms, Form 4.

(B) Timing and Contents of a Bill of

Costs. A Bill of Costs must:

(i) be filed within 30 days after

the date of final judgment, as

defined in 28 U.S.C.

§ 2412(d)(2)(G);

(ii) be accompanied by an affidavit

and a memorandum setting

forth the grounds and

authorities supporting all costs

other than the filing fee; and 

(iii) include as exhibits any

vouchers, receipts, or invoices

supporting the requested costs.

(C) Procedures Applicable to a Bill of

Costs. 

(i) Objection. An objection to

some or all of the requested

costs may be filed within 28

days after service of the Bill of

Costs. 

(ii) Reply. A reply to an objection

may be filed within 7 days

after service of the objection.

(iii) Action by the Clerk. Unless a

conference is scheduled by the

clerk, the taxation or

disallowance of costs will be

made by the clerk on the

existing record.

(iv) Court Review. A motion for

review of the clerk’s action

may be filed with the court

within 14 days after action by

the clerk. Unless the court

orders otherwise, the review

will be made on the existing

record.

(D) Settlement Agreement. A

settlement agreement should, by its

own terms, resolve any issue
RCFC 54 (cont.) 80

relating to costs and in the absence

of special agreement, each party

must bear its own costs. The clerk

may not tax costs on any action

terminated by settlement. 

(2) Attorney’s Fees.

(A) Claim to Be by Motion. A claim

for attorney’s fees and related

nontaxable expenses must be made

by motion unless the substantive

law requires those fees to be proved

at trial as an element of damages.

See Appendix of Forms, Form 5.

(B) Timing and Contents of the

Motion. Unless a statute or a court

order provides otherwise, the

motion must: 

(i) be filed within 30 days after

the date of final judgment, as

defined in 28 U.S.C.

§ 2412(d)(2)(G);

(ii) specify the judgment and the

statute, rule, or other grounds

entitling the movant to the

award;

(iii) state the amount sought; and 

(iv) disclose, if the court so orders,

the terms of any agreement

about fees for the services for

which the claim is made. 

(C) Proceedings. The court may decide

issues of liability for fees before

receiving submissions on the value

of services. The court must find the

facts and state its conclusions of

law as provided in RCFC 52(a).

(D) Procedures Applicable to a Motion

for Attorney’s Fees.

(i) Response. A response to a

motion for attorney’s fees may

be filed within 28 days after

service of the motion.

(ii) Reply. A reply to a response

may be filed within 14 days

after service of the response.

(iii) Subsequent Procedures. After

the filing of a response and a

reply to a motion for attorney’s

fees, the court will enter an

order p r e s c ri bing the

procedures to be followed.

(E) Exceptions. Subparagraphs (A)–

(D) do not apply to claims for fees

and expenses as sanctions for

violating these rules or as sanctions

under 28 U.S.C. § 1927. 

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

July 1, 2004, Nov. 3, 2008, Jan. 11, 2010.) 

Rules Committee Notes

2002 Revision

RCFC 54(d) was revised in several respects.

The subdivision was modified to conform its

structure to FRCP 54(d). In addition, the

subdivision, as rewritten departs from its FRCP

counterpart in several respects:

First, because the allowance of attorneys’ fees

and costs in this court is almost always determined

under the provisions of 28 U.S.C. § 2412(a), (d)

(the Equal Access to Justice Act), it was deemed

advisable to reflect this fact in subdivision (d)(2)

rather than to retain the broader, but potentially

misleading, language that appears in FRCP

54(d)(1). See Neal & Co. v. United States, 121

F.3d 683 (Fed. Cir. 1997).

Second, subdivision (d)(1) was enlarged

beyond the scope of its FRCP counterpart by the

incorporation of RCFC 77.4 (“Taxation of Costs”).

Third, subdivision (d)(2) brings together

relevant sections of its FRCP counterpart and

former RCFC 81(e) (“Application for Attorneys’

Fees”).

Finally, the time periods for objecting to a Bill

of Costs and for requesting review of the clerk’s

action were enlarged.

2004 Amendment

The final sentence of RCFC 54(d)(2)(D) was

deleted in conformance with RCFC 53(a)(1). 

2008 Amendment
81 RCFC 55 and 56

The language of RCFC 54 has been amended

to conform to the general restyling of the FRCP.

2010 Amendment

RCFC 54(d) has been amended by deleting

item (1)(C)(v) (“Time Extensions”) in its entirety.

In addition, the 14-day time period formerly set

forth in item (2)(D)(i) for filing a response to a

motion for attorney’s fees has been restored to 28

days.

Rule 55. Default; Default Judgment

(a) Entering a Default. When a party against

whom a judgment for affirmative relief is

sought has failed to plead or otherwise defend,

and that failure is shown by affidavit or

otherwise, the clerk must enter the party’s

default.

(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. A

default judgment may be entered only if

the claimant establishes a claim or right

to relief by evidence that satisfies the

court. A default judgment may be

entered against a minor or incompetent

person only if represented by a general

guardian, conservator, or other like

fiduciary who has appeared. If the party

against whom a default judgment is

sought has appeared personally or by a

representative, that party or its

representative must be served with

written notice of the application at least

7 days before the hearing. The court

may conduct hearings or make referrals

when, to enter or effectuate judgment, it

needs 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 Default

Judgment. The court may set aside an entry

of default for good cause, and it may set aside

a default judgment under RCFC 60(b).

(d) Judgment Against the United States. [Not

used.]

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

Nov. 3, 2008, Jan. 11, 2010.) 

Rules Committee Notes

2002 Revision

RCFC 55 recognizes the distinction between

entry of default and entry of judgment for default.

Substantial changes were made. The language in

former subdivision (b)(1), permitting entry of

default judgment by the clerk, is omitted.

Additionally, the protection previously afforded

only to the United States–prohibiting entry of

default judgments absent a showing by the

claimant of a right to relief by evidence satisfactory

to the court–is expanded to include all parties.

Judgment requires proof and involvement of the

court.

2008 Amendment

The language of RCFC 55 has been amended

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 incomplete

and unnecessary. 

2010 Amendment

The time period of 3 days formerly set forth in

RCFC 55(b)(2) has been changed to 7 days in

accordance with the corresponding change to

FRCP 55(b)(2) that became effective December 1,

2009.

Rule 56. Summary Judgment

(a) By a Claiming Party. A party claiming relief

may move, with or without supporting

affidavits, for summary judgment on all or

part of the claim. The motion may be filed at

any time after:

(1) 60 days have pa ssed from

commencement of the action; or
RCFC 56 (cont.) 82

(2) the opposing party serves a motion for

summary judgment.

(b) By a Defending Party. A party against

whom relief is sought may move at any time,

with or without supporting affidavits, for

summary judgment on all or part of the claim.

(c) Proceedings on a Motion. 

(1) In General. A motion for summary

judgment should be granted if the

pleadings, the discovery and disclosure

materials on file, and any affidavits show

that there is no genuine issue as to any

material fact and that the movant is

entitled to judgment as a matter of law.

In considering such a motion, the court

will, absent persuasive reason to the

contrary, deemthe material facts claimed

and adequately supported by the moving

party to be established, except to the

extent that such material facts are

controverted by affidavit or other written

or oral evidence. 

(2) Contents of a Motion. In addition to its

motion, the moving or cross-moving

party must file Proposed Findings of

Uncontroverted Fact which should

contain:

(A) concise, separately numbered

paragraphs setting forth all of the

material facts upon which the party

bases its motion and as to which the

party believes there is no genuine

dispute; and

(B) citations to the opposing party's

pleadings or to documentary

evidence, such as affidavits or

exhibits, filed with the motion or

otherwise part of the record before

the court.

(3) Contents of a Response. In addition to

its opposition, the opposing party must

file a response to the proposed findings

which should contain, immediately

below each finding:

(A) a statement indicating whether the

opposing party agrees or disagrees

with the finding as written;

(B) the basis for any objection to the

finding; 

(C) a proposed revision of the finding;

and

(D) any proposed findings of

uncontroverted fact as to any

relevant matters not covered by the

moving party. 

(4) Stipulation in Lieu of Proposed

Findings of Uncontroverted Fact. The

parties need not file the documents

identified in RCFC 56(c)(2) and (3) if

they file, no later than the time of the

initial motion, a comprehensive

stipulation of all the material facts upon

which they intend to rely. 

(d) Case Not Fully Adjudicated on the Motion.

(1) Establishing Facts. If summary

judgment is not rendered on the whole

action, the court should, to the extent

practicable, determine what material

facts are not genuinely at issue. The

court should so determine by examining

the pleadings and evidence before it and

by interrogating the attorneys. It should

then issue an order specifying what

facts—including items of damages or

other relief—are not genuinely at issue.

The facts so specified must be treated as

established in the action.

(2) Establishing Liability. An interlocutory

summary judgment may be rendered on

liability alone, even if there is a genuine

issue on the amount of damages.

(e) Affidavits; Further Testimony. 

(1) In General. A supporting or opposing

affidavit must be made on personal

knowledge, set out facts that would be

admissible in evidence, and show that the

affiant is competent to testify on the

matters stated. If a paper or part of a

paper is referred to in an affidavit, a

sworn or certified copy must be attached

to or served with the affidavit. The court

may permit an affidavit to be
83 RCFC 56.1, 56.2, and 57

supplemented or opposed by depositions,

answers to interrogatories, or additional

affidavits. 

(2) Opposing Party’s Obligation to

Respond. When a motion for summary

judgment is properly made and

supported, an opposing party may not

rely merely on allegations or denials in

its own pleading; rather, its response

must—by affidavits or as otherwise

provided in this rule—set out specific

facts showing a genuine issue for trial. If

the opposing party does not so respond,

summary judgment should, if

appropriate, be entered against that party.

(f) When Affidavits Are Unavailable. If a party

opposing the motion shows by affidavit that,

for specified reasons, it cannot present facts

essential to justify its opposition, the court

may:

(1) deny the motion;

(2) order a continuance to enable affidavits

to be obtained, depositions to be taken,

or other discovery to be undertaken; or

(3) issue any other just order.

(g) Affidavit Submitted in Bad Faith. If

satisfied that an affidavit under this rule is

submitted in bad faith or solely for delay, the

court must order the submitting party to pay

the other party the reasonable expenses,

including attorney’s fees, it incurred as a

result. An offending party or attorney may

also be held in contempt. 

 

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

June 20, 2006, Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

The subdivision structure of RCFC 56 was reordered to more closely conform to FRCP 56. In

addition, the subdivision outlining the procedures

for filing a RCFC 56 motion was changed to

eliminate the Statement of Genuine Issues and to

require the parties to express their views on any

particular fact by noting them on a single page,

which may include a redraft of the challenged

finding. 

2006 Amendment

A clause was deleted from the opening portion

of subdivision (h) to accord with the abrogation of

RCFC 56.1. 

2008 Amendment

The language of RCFC 56 has been amended

to conform to the general restyling of the FRCP.

Rule 56.1 Review of a Decision on the Basis

of the Administrative Record

[Abrogated (eff. June 20, 2006).]

Rules Committee Notes

2002 Revision

RCFC 56.1 has no FRCP counterpart. In the

interests of procedural clarity, the text of

subdivision (a) was modified to reflect current

practice with respect to supplementation of the

administrative record, and subdivision (b)(2) was

modified to make explicit an opposing party’s right

to file an opposition as well as a cross-motion. In

addition, the rule was conformed to RCFC 56

practice, in that the statement of facts and counterstatement of facts are incorporated into a single

document. In all other respects, RCFC 56.1

remains unchanged.

2006 Abrogation

RCFC 56.1 has been abrogated for the reasons

described in the Rules Committee Note to

RCFC 52.1. 

Rule 56.2 Remanding a Case [Renumbered

as RCFC 52.2 (eff. June 20, 2006).]

Rule 57. Declaratory Judgment

These rules govern the procedure for obtaining a

declaratory judgment under 28 U.S.C. §§

1491(b)(2) and 1507. The existence of another

adequate remedy does not preclude a declaratory

judgment that is otherwise appropriate. The court

may order a speedy hearing of a declaratory-
RCFC 58 84

judgment action. 

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

The former reference to 28 U.S.C. §1491(a)

has been changed to reflect that the court’s

authority to render declaratory judgments in the

context of procurement protests is now found in

28 U.S.C. §1491(b)(2). 

2008 Amendment

The language of RCFC 57 has been amended

to conform to the general restyling of the FRCP.

Rule 58. Entering Judgment

(a) Separate Document. Every judgment and

amended judgment must be set out in a

separate document, but a separate document is

not required for an order disposing of a

motion:

(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 court

orders otherwise, the clerk must, without

awaiting the court’s direction, promptly

prepare, sign, and enter the judgment

when:

(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 to

RCFC 54(b), the court must promptly

approve the form of the judgment, which

the 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 civil

docket under RCFC 79(a); or

(2) if a separate document is required, when

the judgment is entered in the civil

docket under RCFC 79(a) and the earlier

of 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 as

required by RCFC 58(a).

(e) Cost or Fee Awards. Ordinarily, the entry of

judgment may not be delayed, nor the time for

appeal extended, in order to tax costs or award

fees. But if a timely motion for attorney’s

fees is made under RCFC 54(d)(2), the court

may act before a notice of appeal has been

filed and become effective to order that the

motion have the same effect under Federal

Rule of Appellate Procedure 4(a)(4) as a

timely motion under RCFC 59.

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

Sept. 15, 2003, Nov. 15, 2007, Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 58 is essentially identical to the text

that was proposed in August 2000 by the

Committee on Rules of Practice and Procedure of

the Judicial Conference of the United States, with

the exception of any references to trial by jury. 

2003 Amendment

The text of RCFC 58 has been amended in

minor respects to conform to FRCP 58 as adopted

December 1, 2002. 

2007 Amendment
85 RCFC 58.1 and 59

The time for the entry of judgment under

RCFC 58(b)(2)(B) has been extended from 60 days

to 150 days to correspond to the time period set

forth in FRCP 58(b)(2)(B). 

2008 Amendment

The language of RCFC 58 has been amended

to conform to the general restyling of the FRCP.

Rule 58.1. Notice of Appeal

To 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 within

the time and in the manner prescribed for

appeals in Rule 3 of the Federal Rules of

Appellate Procedure; and

(b) pay the fee in accordance with RCFC 77.1(c).

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

Although the rule has no FRCP counterpart, it

is a necessary component of the court’s rules

because it prescribes the time and manner for the

filing of an appeal from a decision of this court. 

2008Amendment

The language of RCFC 58.1 has been

amended to conform to the general restyling of the

FRCP. 

Rule 59. New Trial; Reconsideration; Altering

or Amending a Judgment 

(a) In General.

(1) Grounds for New Trial or

Reconsideration. The court may, on

motion, grant a new trial or a motion for

reconsideration on all or some of the

issues—and to any party—as follows:

(A) for any reason for which a new trial

has heretofore been granted in an

action at law in federal court;

(B) for any reason for which a rehearing

has heretofore been granted in a suit

in equity in federal court; or

(C) upon the showing of satisfactory

evidence, cumulative or otherwise,

that any fraud, wrong, or injustice

has been done to the United States.

(2) Further Action After a Trial. The court

may, on motion under this rule, open the

judgment if one has been entered, take

additional testimony, amend findings of

fact and conclusions of law or make new

ones, and direct the entry of a new

judgment. 

(b) Time to File a Motion for a New Trial and

a Response. 

(1) A motion for a new trial under RCFC

59(a)(1)(A) or (B) must be filed no later

than 30 days after the entry of judgment.

(2) A motion for a new trial under RCFC

59(a)(1)(C) may be filed—and the

payment of judgment stayed—at any

time while the suit is pending, after

review proceedings have been initiated,

or within 2 years after the final

disposition of the suit.

(3) A response to any motion under this rule

may be filed only at the court’s request

and within the time specified by the

court. The court may not rule in favor of

a motion under this rule without first

requesting a response to the motion.

(c) Relying on Affidavits. When a motion for a

new trial is based on affidavits, they must be

filed with the motion.

(d) New Trial on the Court’s Initiative or for

Reasons Not in the Motion. No later than 30

days after the entry of judgment, the court, on

its own, may order a new trial for any reason

that would justify granting one on a party’s

motion. After giving the parties notice and an

opportunity to be heard, the court may grant a

timely motion for a new trial for a reason not

stated in the motion. In either event, the court

must specify the reasons in its order. 

(e) Motion to Alter or Amend a Judgment. A

motion to alter or amend a judgment must be

filed no later than 30 days after the entry of
RCFC 60 86

the judgment. 

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

Nov. 3, 2008, Jan. 11, 2010.) 

Rules Committee Notes

2002 Revision

Minor changes in wording have been made to

more closely conform to FRCP 59. Subdivision (c)

was deleted to reflect the difference in Court of

Federal Claims practice, set out in subdivision (b),

which directs that a response to a RCFC 59 motion

is required only when directed by the court, even if

the motion is accompanied by an affidavit. Other

differences were retained, including the distinction

between final and non-final orders, which can be

the subject of motions for reconsideration at any

time before final judgment. 

2008 Amendment

The language of RCFC 59 has been amended

to conform to the general restyling of the FRCP.

2010 Amendment

RCFC 59 has been amended to change the

period for filing post-judgment motions from 10 to

30 days in accordance with the corresponding

changes to FRCP 59 that became effective

December 1, 2009. RCFC 6(b) continues to

prohibit extension of the time allowed under this

rule. 

Rule 60. Relief From a Judgment or Order

(a) Corrections Based on Clerical Mistakes;

Oversights and Omissions. The court may

correct a clerical mistake or a mistake arising

from oversight or omission whenever one is

found in a judgment, order, or other part of

the record. The court may do so on motion or

on its own, with or without notice. But after

an appeal has been docketed in the appellate

court and while it is pending, such a mistake

may be corrected only with the appellate

court’s leave. 

(b) Grounds for Relief from a Final Judgment,

Order, or Proceeding. On motion and just

terms, the court may relieve a party or its legal

representative froma final judgment, order, or

proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or

excusable neglect;

(2) newly discovered evidence that, with

reasonable diligence, could not have

been discovered in time to move for a

new trial under RCFC 59(b);

(3) fraud (whether previously called intrinsic

or extrinsic), misrepresentation, or

misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released,

or discharged; it is based on an earlier

judgment that has been reversed or

vacated; or applying it prospectively is

no 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 reasonable

time—and for reasons(1), (2), and (3) no

more than a year after the entry of the

judgment or order or the date of the

proceeding.

(2) Effect on Finality. The motion does not

affect the judgment’s finality or suspend

its operation.

(d) Other Powers to Grant Relief. This rule

does not limit a court’s power to:

(1) entertain an independent action to relieve

a party from a judgment, order, or

proceeding; 

(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 the

nature of bills of review, and writs of coram

nobis, coram vobis, and audita querela. 

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

Nov. 3, 2008.) 

Rules Committee Notes
87 RCFC 61 and 62

2002 Revision

Minor changes in wording have been made to

more closely conform to FRCP 60. Necessary

differences were retained. 

2008 Amendment

The language of RCFC 60 has been amended

to conform to the general restyling of the FRCP.

Rule 61. Harmless Error

Unless justice requires otherwise, no error in

admitting or excluding evidence—or any other

error by the court or a party—is ground for

granting a new trial, for setting aside a verdict, or

for vacating, modifying, or otherwise disturbing a

judgment or order. At every stage of the

proceeding, the court must disregard all errors and

defects that do not affect any party’s substantial

rights. 

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 61 is identical to FRCP 61. 

2008 Amendment

The language of RCFC 61 has been amended

to conform to the general restyling of the FRCP.

Rule 62. Stay of Proceedings to Enforce a

Judgment

(a) Automatic Stay; Exceptions for Injunctions

and Patent Accountings. Except asstated in

this rule, no execution may issue on a

judgment, nor may proceedings be taken to

enforce it, until 14 days have passed after its

entry. But unless the court orders otherwise,

the following are not stayed after being

entered, 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 patent

infringement.

(b) Stay Pending the Disposition of a Motion.

On appropriate terms for the opposing party’s

security, the court may stay the execution of a

judgment—or any proceedings to enforce

it—pending disposition of any of the

following 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 order

or final judgment that grants, dissolves, or

denies an injunction, the court may suspend,

modify, restore, or grant an injunction on

terms for bond or other terms that secure the

opposing party’s rights. 

(d) Stay with Bond on Appeal. If an appeal is

taken, the appellant may obtain a stay by

supersedeas bond, except in an action

described in RCFC 62(a)(1) or (2). The bond

may be given upon or after filing the notice of

appeal or after obtaining the order allowing

the appeal. The stay takes effect when the

court approves the bond.

(e) Stay Without Bond on an Appeal by the

United States, Its Officers, or Its Agencies.

The court must not require a bond, obligation,

or other security from the appellant when

granting a stay on an appeal by the United

States, its officers, or its agencies or on an

appeal directed by a department of the federal

government.

(f) Stay in Favor of a Judgment Debtor Under

State Law. [Not used.]

(g) Appellate Court’s Power Not Limited. This

rule does not limit the power of the appellate

court or one of its judges or justices: 

(1) to stay proceedings—or suspend, modify,

restore, or grant an injunction—while an

appeal is pending; or

(2) to issue an order to preserve the status

quo or the effectiveness of the judgment
RCFC 62.1, 63, and 64 88

to be entered. 

(h) Stay with Multiple Claims or Parties. A

court may stay the enforcement of a final

judgment entered under RCFC 54(b) until it

enters a later judgment or judgments, and may

prescribe terms necessary to secure the benefit

of the stayed judgment for the party in whose

favor it was entered.

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

Nov. 3, 2008, Jan. 11, 2010.) 

Rules Committee Notes

2002 Revision

Minor changes have been made to subdivision

(a) to more closely conform to FRCP 62.

Necessary differences were retained. 

2008 Amendment

The language of RCFC 62 has been amended

to conform to the general restyling of the FRCP.

2010 Amendment

The time period of 10 days formerly set forth

in RCFC 62(a) has been changed to 14 days in

accordance with the corresponding change to

FRCP 62(a) that became effective December 1,

2009.

Rule 62.1 Indicative Ruling on Motion for

Relief That is Barred by a

Pending Appeal

(a) Relief Pending Appeal. If a timely motion is

made for reliefthat the court lacks authority to

grant because of an appeal that has been

docketed 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 that

purpose or that the motion raises a

substantial issue.

(b) Notice to the Court of Appeals. The movant

must promptly notify the circuit clerk under

Federal Circuit Rule 12.1 if the court states

that it would grant the motion or that the

motion raises a substantial issue.

(c) Proceedings on Remand. The court may

decide the motion if the court of appeals

remands for further proceedings.

(Added Jan. 11, 2010.)

Rules Committee Note

2010 Adoption

RCFC 62.1 has been added to correspond to

the adoption of the same rule in the FRCP that

became effective December 1, 2009.

Rule 63. Judge’s Inability to Proceed

If a judge conducting a hearing or trial is unable to

proceed, any other judge may proceed upon

certifying familiarity with the record and

determining that the case may be completed

without prejudice to the parties. In a hearing or a

trial, the successor judge must, at a party’s request,

recall any witness whose testimony is material and

disputed and who is available to testify again

without undue burden. The successor judge may

also recall any other witness.

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

Subdivisions (b) and (c) of the court’s prior

rule were deleted as unnecessary. The substance of

each of these former subdivisions is covered in 28

U.S.C. § 455 and in the Codes of Conduct for

Judges and Judicial Employees. RCFC 63 as

rewritten is essentially identical to FRCP 63. 

2008 Amendment

The language of RCFC 63 has been amended

to conform to the general restyling of the FRCP.

TITLE VIII. PROVISIONAL AND FINAL

REMEDIES

Rule 64. Seizing a Person or Property [Not
89 RCFC 65

used.]

Rule 65. Injunctions and Restraining Orders

(a) Preliminary Injunction.

(1) Notice. The court may issue a

preliminary injunction only on notice to

the adverse party.

(2) Consolidating the Hearing with the

Trial on the Merits. Before or after

beginning the hearing on a motion for a

preliminary injunction, the court may

advance the trial on the merits and

consolidate it with the hearing. Even

when consolidation is not ordered,

evidence that is received on the motion

and that would be admissible at trial

becomes part of the trial record and need

not be repeated at trial. 

(b) Temporary Restraining Order. 

(1) Issuing Without Notice. The court may

issue a temporary restraining order

without written or oral notice to the

adverse party or its attorney only if:

(A) specific facts in an affidavit or a

verified complaint clearly show that

immediate and irreparable injury,

loss, or damage will result to the

movant before the adverse party can

be heard in opposition; and

(B) the movant’s attorney certifies in

writing any efforts made to give

notice and the reasons why it should

not be required.

(2) Contents; Expiration. Every temporary

restraining order issued without notice

must state the date and hour it was

issued; describe the injury and state why

it is irreparable; state why the order was

issued without notice; and be promptly

filed in the clerk’s office and entered in

the record. The order expires at the time

after entry—not to exceed 14 days—that

the court sets, unless before that time the

court, for good cause, extends it for a

like period or the adverse party consents

to a longer extension. The reasons for an

extension must be entered in the record.

(3) Expediting the Preliminary-Injunction

Hearing. If the order is issued without

notice, the motion for a preliminary

injunction must be set for hearing at the

earliest possible time, taking precedence

over all other matters except hearings on

older matters of the same character. At

the hearing, the party who obtained the

order must proceed with the motion; if

the party does not, the court must

dissolve the order.

(4) Motion to Dissolve. On 2 days’ notice to

the party who obtained the order without

notice—or on shorter notice set by the

court—the adverse partymay appear and

move to dissolve or modify the order.

The court must then hear and decide the

motion as promptly as justice requires.

(c) Security. The court may issue a preliminary

injunction or a temporary restraining order

only if the movant gives security in an amount

that the court considers proper to pay the costs

and damages sustained by any party found to

have been wrongfully enjoined or restrained.

The United States, its officers, and its

agencies are not required to give security.

(d) Contents and Scope of Every Injunction

and Restraining Order.

(1) Contents. Every order granting an

injunction and every restraining order

must:

(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 or

other document—the act or acts

restrained or required.

(2) Persons Bound. The order binds only

the following who receive actual notice

of it by personal service or otherwise:

(A) the parties;

(B) the parties’ officers, agents,

servants, employees, and attorneys;

and

(C) other persons who are in active
RCFC 65.1, 66, 67, and 68 90

concert or participation with anyone

described in RCFC 65(d)(2)(A) or

(B).

(e) Other Laws Not Modified. These rules do

not modify the following:

(1) any federal statute relating to temporary

restraining orders or preliminary

injunctions in actions affecting employer

and employee;

(2) [not used]; or

(3) [not used].

(f) Copyright Impoundment. [Not used.]

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

Nov. 3, 2008, Jan. 11, 2010.) 

Rules Committee Notes

2002 Revision

Minor changes have been made to subdivision

(b) to more closely conform to its FRCP

counterpart. Additionally, former subdivision (f),

titled “Procedures,” has been relocated to

Appendix C. (Appendix C supersedes former

General Order No. 38, dated May 7, 1998, which

described the court’s standard practices in

procurement protest cases filed pursuant to 28

U.S.C. § 1491(b).)

2008 Amendment

The language of RCFC 65 has been amended

to conform to the general restyling of the FRCP.

2010 Amendment

The time period of 10 days formerly set forth

in RCFC 65(b)(2) has been changed to 14 days in

accordance with the corresponding change to

FRCP 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 undertaking

with one or more sureties, each surety submits

to the court’s jurisdiction and irrevocably

appoints the court clerk as its agent for

receiving service of any papers that affect its

liability on the bond or undertaking. The

surety’s liability may be enforced on motion

without an independent action. The motion

and any notice that the court orders may be

served on the court clerk, who must promptly

mail a copy of each to every surety whose

address is known. 

(b) Acceptable Sureties. Acceptable sureties on

bonds are those bonding companies holding

certificates of authority from the Secretary of

the Treasury. (See the latest U.S. Dep’t of

Treasury Circular 570.) When a court

decision provides for the giving of security,

the clerk will furnish counsel with the

appropriate bond form. 

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision*

Subdivision (a) is identical to FRCP 65.1

except for the omission of language extending the

rule’s coverage to “the Supplemental Rules for

Certain Admiralty and Maritime Claims.”

Subdivision (b), titled “Sureties,” although unique

to this court, provides information useful to the

court’s practitioners and therefore was retained. 

*As corrected November 15, 2007. 

2008 Amendment

The language of RCFC 65.1 has been

amended to conform to the general restyling of the

FRCP. 

Rule 66. Receivers [Not used.]

Rule 67. Deposit into Court [Not used.]

Rule 68. Offer of Judgment

(a) Making an Offer; Judgment on an

Accepted Offer. At least 14 days before the

date set for trial, a party defending against a

claim may serve on an opposing party an offer
91 RCFC 69, 70, 71, 71.1, 72, 73

to allow judgment on specified terms, with the

costs then accrued. If, within 14 days after

being served, the opposing party serves

written notice accepting the offer, either party

may then file the offer and notice of

acceptance, plus proof of service. The clerk

must then enter judgment.

(b) Unaccepted Offer. An unaccepted offer is

considered withdrawn, but it does not

preclude a later offer. Evidence of an

unaccepted offer is not admissible except in a

proceeding to determine costs.

(c) Offer After Liability Is Determined. When

one party’s liability to another has been

determined but the extent of liability remains

to be determined by further proceedings, the

party held liable may make an offer of

judgment. It must be served within a

reasonable time—but at least 14 days—before

the date set for a hearing to determine the

extent of liability.

(d) Paying Costs After an Unaccepted Offer. If

the judgment that the offeree finally obtains is

not more favorable than the unaccepted offer,

the offeree must pay the costs incurred after

the offer was made.

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

Nov. 3, 2008, Jan. 11, 2010.) 

Rules Committee Notes

2002 Revision

A minor change in wording has been made to

more closely conform to FRCP 68.

2008 Amendment

The language of RCFC 68 has been amended

to conform to the general restyling of the FRCP. 

2010 Amendment

RCFC 68 has been amended in accordance

with the corresponding changes to FRCP 68 that

became effective December 1, 2009, (i) directing

that the time for service of an offer of judgment be

measured from the date set for trial or hearing

rather than from the date the trial or hearing is

expected to begin; and (ii) extending the time

periods of 10 days to 14 days.

Rule 69. Execution [Not used.]

Rule 70. Enforcing a Judgment for a Specific

Act [Not used.]

Rule 71. Enforcing Relief For or Against a

Nonparty

When an order grants relief for a nonparty or may

be enforced against a nonparty, the procedure for

enforcing the order is the same as for a party. 

(Added Nov. 3, 2008.) 

Rules Committee Note

2008 Adoption

RCFC 71 has been adopted to conform to the

FRCP and to confirm the court’s authority to issue

orders enforceable for or against a nonparty, a

circumstance that typically arises in conjunction

with the issuance of a subpoena. 

TITLE IX. SPECIAL PROCEEDINGS

Rule 71.1. Condemning Real or Personal

Property [Not used.]

Rule 72. Magistrate Judges: Pretrial Order

[Not used.]

Rule 73. Magistrate Judges: Trial by Consent;

Appeal [Not used.]

Rules Committee Note

2002 Revision

Chapter IX of the FRCP, titled “Special

Proceedings,” (comprising FRCP 71A– 73) has not

been included in the main body of the court’s rules.

Instead, rules relating to the court’s special

proceedings appear in the appendices to the rules.

2008 Amendment

Former RCFC 71A has been redesignated as
RCFC 74, 75, 76, and 77 92

RCFC 71.1 in accordance with the FRCP. 

Rule 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.]

Rule 75. Proceedings On Appeal From

Magistrate Judge to District Judge

Under Rule 73(d) [Abrogated in

FRCP.]

Rule 76. Judgment of the District Judge on the

Appeal Under Rule 73(d) and Costs

[Abrogated in FRCP.]

TITLE X. C O U R T A N D C L E R K :

CONDUCTING BUSINESS;

ISSUING ORDERS

Rule 77. Conducting Business; Clerk’s

Authority; Notice of an Order or

Judgment

(a) When Court Is Open. The court is

considered always open for filing any paper,

issuing and returning process, making a

motion, 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, so

far as convenient, in a regular courtroom.

Any other act or proceeding may be done

or conducted by a judge in chambers,

without the attendance of the clerk or

other court official, or at any other place

designated by order.

(2) A Trial or Hearing in a Foreign

Country. On motion or on the judge’s

own initiative, and upon a determination

by the judge to whom the case is

assigned that the interests of economy,

efficiency, and justice will be served, the

chief judge may issue an order

authorizing the judge to conduct

proceedings, including evidentiary

hearings and trials, in a foreign country

whose laws do not prohibit such

proceedings. 

(c) Clerk’s Office Hours; Clerk’s Orders.

(1) Hours. The clerk’s office—with a clerk

or deputy on duty—must be open during

business hours every day except

Saturdays, Sundays, and legal holidays

as defined in RCFC 6(a)(4). 

(2) Orders. Subject to the court’s power to

suspend, alter, or rescind the clerk’s

action 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 an

order or judgment, the clerk must serve

notice of the entry, as provided in RCFC

5(b), on each party who is not in default

for failing to appear. The clerk must

record the service on the docket. A party

also may serve notice of the entry as

provided in RCFC 5(b).

(2) Time to Appeal Not Affected by Lack of

Notice. Lack of notice of the entry does

not affect the time for appeal or

relieve—or authorize the court to

relieve—a party for failing to appeal

within the time allowed, except as

allowed by Federal Rule of Appellate

Procedure 4(a).

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

To more closely parallel the structure and

content of FRCP 77, RCFC 77 has been modified

as follows: 

Former subdivisions (a) (referring to the

court’s “Name”), (b) (referring to the court’s
93 RCFC 77.1

“Seal”), (d) (captioned “Citations”), and (e)

(identifying the court’s judicial power as being

exercisable by a single judge, except in

congressional reference cases), have been deleted

as unnecessary.

Subdivision (b) (formerly subdivision (h) of

this rule) has been changed in two respects. First,

in order better to reflect its content, the subdivision

has been retitled to read “Trials and Hearings;

Proceedings in Chambers” (in lieu of “Trials and

Hearings; Orders in Chambers”). Second, the

subdivision has been divided into paragraphs (1)

and (2). Paragraph (1), captioned “Proceedings

Generally,” retains the rule’s earlier language;

paragraph (2), captioned “Trials or Hearings in

Foreign Countries,” has been added to recognize

the court’s authority under 28 U.S.C. § 798(b) to

conduct trials or hearings in foreign countries.

Former subdivision (f), titled “Assignment of

Cases,” was renumbered as RCFC 40.1.

Former subdivision (g), titled “Signing of

Orders for Absent Judges,” was renumbered as

RCFC 77.2(b).

Former subdivisions (l) and (k), titled,

respectively, “Scheduling Courtrooms” and “Fee

Schedule,” were renumbered as RCFC 77.1.

Finally, former subdivision (m) was deleted in

order to recognize the right of certain court

employees to participate in pro bono legal work

under the guidelines prescribed for that purpose by

the Codes of Conduct for Judicial Employees. 

2008 Amendment

The language of RCFC 77 has been amended

to conform to the general restyling of the FRCP. 

Rule 77.1. Business Hours, Scheduling, and

Court Fees

(a) Business Hours. The clerk’s office is open

from 8:45 a.m. to 5:15 p.m. on business days.

A night box is provided for filing with the

clerk’s office between 5:15 p.m. and 12:00

midnight on any business day for any paper

due that day. The night box is located inside

the gate at the garage entrance on H Street.

Counsel are advised to telephone the clerk's

office, (202) 357-6400, by 9:30 a.m. the

following business day to confirm receipt. 

(b) Scheduling. The clerk will schedule the use

of courtrooms in Washington, DC, and will be

responsible for all arrangements for

courtrooms and other facilities required by the

court at locations outside Washington, DC.

All conferences, oral arguments, trials, and

other recorded court proceedings will be

scheduled by the assigned judge by filing an

order with the clerk. 

(c) Court Fees.

(1) In General. Court fees are prescribed by

the Judicial Conference of the United

States pursuant to 28 U.S.C. § 1926(a),

as adjusted in the case of the fee for

admission in accordance with RCFC

83.1(b)(4). 

(2) Fee Schedule. A copy of the applicable

schedule of fees is available on the

court’s w e b s i t e at

www.uscfc.uscourts.gov or may be

obtained by contacting the office of the

Clerk of the United States Court of

Federal Claims, 717 Madison Place, NW,

Washington, DC 20005. 

(3) Method of Payment. Fees for services

rendered by the clerk must be paid in

advance; all checks should be made

payable to “Clerk, United States Court of

Federal Claims.”

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

Mar. 15, 2005, Aug. 2, 2005, Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

Former RCFC 77.1 was deleted in its entirety.

Current RCFC 77.1 reflects portions of the text of

former subdivision (c) as well as subdivisions (h)

and (i) of RCFC 77. 

2005 Amendments

Subdivision (c)(2) has been revised to

conform more precisely to 28 U.S.C. § 1926(a)

which provides that “[t]he Judicial Conference of
RCFC 77.2 and 77.3 94

the United States shall prescribe from time to time

the fees and costs to be charged and collected in

the United States Court of Federal Claims.” This

authorization for the Judicial Conference to

prescribe fees for the court has a counterpart in

28 U.S.C. § 1914 which pertains to fees for district

courts. Ordinarily, the Judicial Conference amends

the fee schedules for both district courts and this

court at the same time. In addition, subdivision

(c)(2) recognizes the court’s authority to include as

an additional admission fee the amount provided

for in RCFC 83.1(b)(4). Currently applicable fee

schedules are obtainable on the court’s website and

through a variety of other published sources. 

2008 Amendment

The language of RCFC 77.1 has been

amended to conform to the general restyling of the

FRCP. 

Rule 77.2. Authorization to Act on Certain

Motions

(a) Authority of the Clerk. The clerk may act

on any motion for an enlargement of time to

answer or respond to a complaint or for

substitution 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 that

exceed 60 days in total.

(b) Signing an Order for an Absent Judge. If

an order is required and the assigned judge is

unavailable, an order may be presented to the

chief judge or to another judge designated by

the assigned judge for signature.

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 77.2 has no FRCP counterpart. The

rule has been changed in several respects. First,

former subdivisions (a) and (b) were combined into

a new subdivision (a). Second, language in former

subdivision (a) relating to the “permanent

withdrawal of papers” was deleted to reflect

corresponding changes in RCFC 77.3 that abolish

the practice of permitting the withdrawal of papers

from the clerk’s office. Third, former subdivisions

(c) and (d) were deleted as unnecessary. Finally,

new subdivision (b) reflects text transferred from

former subdivision (g) of RCFC 77. 

2008 Amendment

The language of RCFC 77.2 has been

amended to conform to the general restyling of the

FRCP. 

Rule 77.3. Withdrawing, Disposing of, and

Unsealing Papers and Exhibits

(a) Withdrawing Papers and Exhibits.

(1) In General. A paper or exhibit filed

with the court may not be withdrawn

from the office or custody of the clerk

except by order of the court, but such an

order should be entered only in

extraordinary circumstances. Any

withdrawal of a paper or exhibit pursuant

to a court order must be recorded through

an appropriate docket entry. 

(2) During Trial. The court reporter

engaged to transcribe a trial proceeding

may temporarily withdraw any paper or

exhibit for use during that proceeding.

All papers and exhibits admitted into

evidence or designated to accompany the

transcript of the proceeding must remain

in the reporter’s custody until the

transcript is filed with the clerk.

(b) Disposing of Physical Exhibits. All trial

exhibits, including models, diagrams,

depositions, transcripts, briefs, tables, and

charts, will be destroyed or otherwise

disposed of by the clerk unless they are

removed from the clerk’s custody by the party

who produced them either:

(1) within 60 days after the entry of final

judgment by this court; or 
95 RCFC 78 and 79

(2) in the event of an appeal, within 90 days

after the receipt and filing of a mandate

or other process or certificate showing

the disposition of the case by the

appellate court.

(c) Unsealing Papers and Exhibits. Unless

otherwise required by statute or order and

absent a timely objection by any party, the

clerk, upon notice to the parties, may unseal

any 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 or

other process or certificate showing

disposition of the case by the appellate

court.

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

Nov. 15, 2007, Nov. 3, 2008, July 13, 2009.) 

Rules Committee Notes

2002 Revision

RCFC 77.3 has no FRCP counterpart. The

rule has been amended in several respects: 

First, former subdivision (a) was deleted,

thereby eliminating the practice of permitting

temporary withdrawal of exhibits and papers by the

parties. The need to accommodate the copying of

extensive parts of a record shall be addressed

directly through arrangements made by the clerk. 

Subdivision (a), formerly subdivision (b), was

amended to clarify that the reporter is to retain

custody of the transcript and exhibits until they are

filed with the clerk. 

New subdivision (b), formerly subdivision (c),

clarifies that no withdrawal of papers or exhibits

from the clerk’s office may occur in the absence of

a court order, and then only in extraordinary

circumstances. The fact of withdrawal shall be

preserved in the court’s docketing entries. 

New subdivision (c), formerly subdivision (d),

was rewritten to clarify the practice with respect to

the disposition of physical exhibits and to make

clear the parties’ obligation to retrieve such

exhibits, to avoid their loss through routine

disposal. The reference to in camera materials was

omitted, because such materials are not filed with

the clerk’s office. 

New subdivision (d) establishes a procedure

for handling materials filed under seal, requiring

the parties affirmatively to indicate a desire to

maintain filings in closed cases under seal.

2007 Amendment

Subdivision (d) of RCFC 77.3 has been

amended by substituting the introductory words

“unless otherwise required by statute or order” in

place of the former text “unless otherwise specified

by order.” The amendment is intended to

recognize that under certain statutes, materials

originally filed under seal must be maintained

under seal in perpetuity. See, e.g., National

Childhood Vaccine Injury Act, 42 U.S.C. § 300aa12(d)(4)(A). 

2008 Amendment

The language of RCFC 77.3 has been

amended to conform to the general restyling of the

FRCP. 

2009 Amendment

The last sentence of subdivision (a)(1) has

been amended to clarify that the withdrawal of a

paper or exhibit filed with the clerk must be

recorded through an appropriate docket entry. 

Further, as an historical note, we add that the

current structure of RCFC 77.3 relates back to the

restyling of the rule in 2008 when former

subdivisions (a) and (b) were combined into the

new subdivision (a) and the remaining subdivisions

renumbered as subdivisions (b) and (c).

Rule 78. Hearing Motions; Submission on

Briefs [Not used.]

Rule 79. Records Kept by the Clerk

(a) Civil Docket.

(1) In General. The clerk must keep a

record known as the “civil docket” in the

form and manner prescribed by the

Director of the Administrative Office of
RCFC 80 96

the United States Courts with the

approval of the Judicial Conference of

the United States. The clerk must enter

each civil action in the docket. Actions

must be assigned consecutive file

numbers, which must be noted in the

docket where the first entry of the action

is made.

(2) Items to be Entered. The following

items must be marked with the file

number and entered chronologically in

the docket:

(A) papers filed with the clerk;

(B) process issued, and proofs of

service or other returns showing

execution; and

(C) appearances, orders, verdicts, and

judgments.

(3) Contents of Entries. Each entry must

briefly show the nature of the paper filed

or writ issued, the substance of each

proof of service or other return, and the

substance and date of entry of each order

and judgment. 

(b) Civil Judgments and Orders. The clerk

must keep a copy of every final judgment and

appealable order; of every order affecting title

to or a lien on real or personal property; and

of any other order that the court directs to be

kept. The clerk must keep these in the form

and manner prescribed by the Director of the

Administrative Office of the United States

Courts with the approval of the Judicial

Conference of the United States.

(c) Indexes; Calendars. Under the court’s

direction, the clerk must:

(1) keep indexes of the docket and of the

judgments and orders described in RCFC

79(b); and

(2) prepare calendars of all actions ready for

trial.

(d) Other Records. The clerk must keep any

other records required by the Director of the

Administrative Office of the United States

Courts with the approval of the Judicial

Conference of the United States.

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

The word “civil” has been added to

subdivision (a) to more closely conform to

FRCP 79. RCFC 79 as it now reads is essentially

identical to FRCP 79. 

2008 Amendment

The language of RCFC 79 has been amended

to conform to the general restyling of the FRCP. 

Rule 80. Stenographic Transcript as Evidence

If stenographically reported testimony at a hearing

or trial is admissible in evidence at a later trial, the

testimony may be proved by a transcript certified

by the person who reported it or by any other

method authorized by the court (see Appendix of

Forms, Forms 3B and 3C).

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

Nov. 15, 2007, Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

Former subdivisions (a), (b), and (c) were

deleted and minor changes have been made to

former subdivision (d) in order to more closely

conform to FRCP 80.

2007 Amendment

RCFC 80, which previously limited

certification of a trial record to “the person who

reported the testimony,” has been expanded to

include certification “by any other method

authorized by the court.” This expansion addresses

the certification requirement in cases where

testimony at a trial or hearing is recorded

electronically under court supervision without

reporter assistance.

2008 Amendment

The language of RCFC 80 has been amended

to conform to the general restyling of the FRCP. 
97 RCFC 80.1

Rule 80.1. Court Reporters

(a) In General. Trial proceedings will be

transcribed by a court reporter provided by the

court who will be under the jurisdiction and

control of the assigned judge. 

(b) Preparing a Transcript.

(1) Form. A transcript should be produced

on nontransparent white paper not

exceeding 81⁄2 by 11 inches and bound

along the left margin. The pages should

be numbered consecutively, with a

minimum of 25 lines per page. It is

unnecessary for witnesses to sign the

transcript volume(s) containing their

testimony.

(2) Contents.

(A) Caption Page. Each transcript

volume must include a caption page

located at the beginning of the

volume setting forth:

(i) the title of the case;

(ii) the place and date of the

proceeding; 

(iii) the name of the judge; and

(iv) the appearances of counsel. 

(B) Witness Identification. Each time

a witness is called to testify, the

reporter 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 counsel

conducting the examination.

(C) Index. Each transcript volume

must include an index located at the

beginning of the volume listing: 

(i) the name of each witness

testifying, citing the page of

the transcript where direct,

cross, redirect, or recross

begins; and 

(ii) each exhibit offered and

received into evidence, first for

the plaintiff, then for the

defendant, and then for any

other party, with a brief

statement of the nature of the

exhibit and the page of the

transcript where the exhibit

was offered and received. 

(D) Master Index. Where the number

of pages in the final transcript

exceeds 500, the court reporter must

provide a separately bound master

index containing a complete list of

the information set forth in RCFC

80.1(b)(2)(C). 

(c) Labeling Exhibits. Unless the court

otherwise directs the parties to designate their

exhibits, the court reporter must label each

exhibit 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 ordered

by the court, the court reporter must file

the transcript of the trial proceedings,

including the exhibits admitted into

evidence or designated to accompany the

transcript, with the clerk within 30 days

after the conclusion of the proceeding. 

(2) How Filing Is Made. A transcript is

filed by delivering the transcript and

exhibits to the clerk's office or by

enclosing them in a packet and

transmitting them to the Office of the

Clerk of the United States Court of

Federal Claims, 717 Madison Place, NW,

Washington, DC 20005. The obligation

for filing the transcript and exhibits

within the period prescribed in RCFC

80.1(d)(1) rests on the reporter.

(e) Certificate of Reporter. The reporter must

sign and append to the transcript a certificate

certifying that the record is a correct transcript

of the proceeding. See Appendix of Forms,

Forms 3B and 3C.
RCFC 81, 82, and 83 98

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

Aug. 2, 2005, Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 80.1 has no FRCP counterpart. The

rule’s principal text formerly appeared in these

rules as Appendix A. The incorporation of former

Appendix A into the main body of the rules reflects

a more logical placement of its subject matter in

the organizational structure of the court’s rules.

Additionally, as part of this rule’s relocation,

Forms A and B of former Appendix A (pertaining

to reporter certifications) were assigned to the new

Appendix of Forms. They appear there as Forms

3A and 3B. 

Other changes introduced in this rule include

the following:

Subdivision (a) formerly appeared in these

rules as paragraph (b)(1) of RCFC 39. The

changes introduced in new subdivision (a) were

deemed necessary in order to eliminate uncertainty

as to the court’s authority to furnish a reporter for

trials scheduled outside of the United States. 

Subdivision (b) formerly appeared as

paragraph (b)(2) of RCFC 39. 

Subdivision (i) formerly appeared as

paragraph (b)(3) of RCFC 39. Additionally,

subdivision (i) reflects the change in the court’s

name. 

2005 Amendment

Subdivision (d) has been amended to specify

that the reporter shall show on each page of a trial

transcript the name of the witness being questioned

and the name of the examining counsel. This

change is intended to aid both counsel and the

court in working with transcripts during post-trial

proceedings, especially 

2008 Amendment

The language of RCFC 80.1 has been

amended to conform to the general restyling of the

FRCP. 

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 an

opportunity for comment, the United States

Court of Federal Claims, acting by a majority

of its judges, may adopt and amend rules

governing its practice. Such rules, to the

extent permitted by this court’s jurisdiction,

must be consistent with the Federal Rules of

Civil Procedure and must conform to any

uniform numbering system prescribed by the

Judicial Conference of the United States. A

rule takes effect on the date specified by the

court and remains in effect unless amended by

the court. Copies of rules and amendments

must, on their adoption, be furnished to the

Administrative Office of the United States

Courts and be made available to the public.

(b) Procedure When There Is No Controlling

Law. A judge may regulate practice in any

manner consistent with federal law or rules

adopted under 28 U.S.C. § 2072 or 2503(b).

No sanction or other disadvantage may be

imposed for noncompliance with any

requirement not in federal law, federal rules,

or these rules unless the alleged violator has

been furnished in the particular case with

actual notice of the requirement.

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 83 is modeled after FRCP 83. The rule

recognizes the court’s rule-making authority as set

forth at 28 U.S.C. § 2503, as well as the assigned
99 RCFC 83.1

judge’s authority to regulate practice in an

individual case, so long as that practice is

consistent with federal law and rules. 

2008 Amendment

The language of RCFC 83 has been amended

to conform to the general restyling of the FRCP. 

Rule 83.1. Attorneys

(a) Eligibility to Practice.

(1) In General. An attorney is eligible to

practice before this court if the attorney:

(A) is a member in good standing of the

bar of this court; or

(B) was a member in good standing of

the bar of this court’s predecessor,

the United States Court of Claims.

(2) Pro Hac Vice. An attorney may

participate pro hac vice in any

proceeding before this court if:

(A) the attorney is admitted to practice

before the highest court of any U.S.

state, territory, or possession or the

District of Columbia; and

(B) the attorney of record for any party

has requested and is present for

such participation and has received

the court’s approval. 

(3) Pro Se Litigants. An individual who is

not an attorney may represent oneself or

a member of one’s immediate family,

but may not represent a corporation, an

entity, or any other person in any

proceeding before this court. The terms

counsel, attorney, and attorney of record

include such individuals appearing

pro se. 

(b) Admission to Practice.

(1) Qualifications. Any person of good

moral character who is a member in

good standing of the bar of the highest

court of any U.S. state, territory, or

possession or the District of Columbia

may be admitted to practice before this

court.

(2) Procedures.

(A) In General. An attorney may be

admitted to practice before this

court by oral motion or by verified

application. 

(i) By Oral Motion in an

Admissions Proceeding. A

member of the bar of this

court may make an oral

motion to admit an applicant

to the bar during the monthly

attorney ad missions

proceeding held at the

Howard T. Markey National

Courts Building, 717 Madison

Place, NW, Washington, DC

20005, at the times posted on

the court’s website at

www.uscfc.us courts.gov

(generally 10:00 a.m. on

Thursday of the first full week

in every month). Motions

will be heard in a courtroom

posted in the lobby of the

courthouse on the day of the

proceeding. Applicants for

admission must appear in the

clerk’s office no later than

9:30 a.m. to:

(I) pay the admission fee

s e t f o r t h i n

RCFC 83.1(b)(4);

(II) complete a “Form for

Admission via Motion

i n Op e n Co u rt ”

(available on the court’s

website); and

(III) present a certificate of

the clerk of the highest

court of any U.S. state,

territory, or possession

or the District of

Columbia which has

been issued within 30

days and states that the

applicant is a member

in good standing of the
RCFC 83.1 (cont.) 100

bar of such court.

Applicants who for special

reasons are unable to appear

for admission on one of the

posted dates should contact

the clerk’s office to make

alternate arrangements.

(ii) By Oral Motion in a

Proceeding O utside

Washington, DC. A member

of the bar of this court may

make an oral motion to admit

an applicant to the bar during

a court proceeding before any

judge of this court so long as

the applicant:

(I) provides the judge with

a completed copy of a

verified application for

adm i ssion (see

Appendix of Forms,

Form 1); or 

(II) advises the judge of the

a p p l i c a n t ’ s

qualifications as set

forth in R C F C

83. 1(b)(1), and

represents that the

applicant will promptly

apply to the clerk for

admission by verified

application as provided

in RCF C

83.1(b)(2)(a)(iii). 

(iii) By Verified Application. An

attorney may seek admission

to practice before this court

without appearing in person

by presenting the clerk with a

verified application for

admission (see Appendix of

Forms, Form 1) along with the

following documentation:

(I) a certificate of the clerk

of the highest court of

any U.S. state, territory,

or possession or the

District of Columbia

which has been issued

within 30 days and

states that the applicant

is a member in good

standing of the bar of

such court; 

(II) two letters or signed

statements of members

of the bar of this court

or of the Supreme Court

of the United States, not

related to the applicant,

affirming that the

applicant is personally

known to them, that the

applicant possesses all

of the qualifications

required for admission

to the bar of this court,

that they have examined

the application, and that

the applicant's personal

and pro f e ssional

character and standing

are good; and 

(III) an oath in the form

prescribed in RCFC

83.1(b)(3) signed by the

a pplican t and

administered by an

officer authorized to

administer oaths in the

U.S. state, territory, or

possession or the

District of Columbia

where the oath is given,

or as permitted by 28

U.S.C. § 1746.

(3) Oath. An applicant for admission to

practice before this court must take the

following oath, to be administered by the

presiding judge or by the clerk: 

I, _________, do solemnly swear

(or affirm) that I will support the
101 RCFC 83.1 (cont.)

Constitution of the United States

and that I will conduct myself in an

upright manner as an attorney of

this court.

(4) Fee. Unless the applicant is employed

by this court or is an attorney

representing the United States before

this court, the applicant must pay the

admission fee in accordance with the fee

schedule posted on the court’s website at

www.uscfc.uscourts.gov. The admission

fee includes $100.00 above the amount

prescribed by the Judicial Conference of

the United States pursuant to 28 U.S.C.

§ 1926(a). The clerk will deposit this

additional sum in a fund to be used by

the court for the benefit of the members

of the bench and the bar in the

administration of justice. 

(5) Foreign Attorneys.

(A) In General. Any person qualified

to practice in the highest court of

any foreign state may be specially

admitted to practice before this

court but only for purposes limited

to a particular case; such person

may not serve as the attorney of

record.

(B) Procedures. A member of the bar

of this court must file with the

clerk a written motion to admit the

applicant at least 7 days prior to the

court’s consideration of the motion.

In the case of such an admission, an

oath 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 one

time and, with the exception of a pro se

litigant appearing under RCFC

83.1(a)(3), must be represented by an

attorney (not a firm) admitted to practice

before this court. Any attorney assisting

the attorney of record must be

designated “of counsel.”

(2) Signing Filings. All filings must be

signed in the attorney of record’s name.

Any attorney who is admitted to practice

before this court may sign a filing in the

attorney of record's name by adding the

following after the name of the attorney

of record: “by [the signing attorney’s

full name].” Such authorization to sign

filings does not relieve the attorney of

record from the provisions of RCFC 11.

(3) Entering an Appearance.

(A) By Parties Other Than the United

States. The attorney of record for

any party other than the United

States must include on the initial

pleading or paper the attorney’s

name, address, telephone number,

and facsimile number. 

(B) By the United States. After service

of the complaint, the attorney of

record for the United States must

promptly file with the clerk and

serve on all other parties a notice of

appearance setting forth the

attorney’s name, address, telephone

number, and facsimile number.

(C) Changes in Contact Information.

An attorney of record must

promptly file with the clerk and

serve on all other parties a notice of

any change in the attorney’s

contact information.

(4) Substituting Counsel.

(A) By Parties Other Than the United

States.

(i) In General. Any party other

than the United States may

seek leave of the court to

substitute its attorney of

record at any time by filing a

motion signed by the party or

by the newly designated

attorney along with an

affidavit of appointment by

such attorney. 

(I) With the Consent of

the Previous Attorney.
RCFC 83.1 (cont.) 102

If th e p r e v ious

attorney’s consent is

annexed to or indicated

in the motion, the clerk

will automatically enter

the substitution on the

docket. 

(II) Without the Consent of

the Previous Attorney.

If the motion is filed

without the consent of

the previous attorney,

the previous attorney

must be served with the

motion and will have 14

days to show cause why

the motion should not

be allowed.

(ii) Death of the Previous

Attorney. In the event of the

death of the attorney of

record, the party must

promptly notify the court and

move to substitute another

attorney admitted to practice

before this court.

(B) By the United States. The United

States may substitute its attorney of

record at any time by filing with

the clerk and serving on all other

parties a notice of appearance of

the new attorney.

(5) Withdrawing Counsel. An attorney of

record for a party other than the United

States may not withdraw the attorney’s

appearance except by leave of the court

on motion and after notice is served on

the attorney’s client.

(d) Honorary Bar Membership. Upon

nomination by the chief judge and with the

approval of the other judges, the court may

present an honorary membership in the bar of

this court to a distinguished professional of

the United States or of another nation who is

knowledgeable in the affairs of law and

government in his or her respective country.

The candidate for honorary membership will

be presented at the bar in person and will

receive a certificate of honorary bar

membership.

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

Aug. 2, 2005, June 20, 2006, Nov. 3, 2008, Jan. 11,

2010.) 

Rules Committee Notes

2002 Revision

RCFC83.1 has no FRCP counterpart. Former

RCFC 83.1, titled “Content of Briefs or

Memoranda; Length of Briefs or Memoranda,” has

been renumbered as RCFC 5.2. The renumbering

of RCFC 83.1 was intended to reflect its more

logical placement in the organizational structure of

this court’s rules. 

The substance of the rule reflects the text of

former RCFC 81, as modified. Paragraph (2) of

subdivision (c) (formerly paragraph (d)(2) of

RCFC 81) was amended to formalize the court’s

practice of allowing joint filings to be signed by

one counsel, on behalf of both counsel, when

authorized to do so by opposing counsel. Also,

subdivision (e) of former RCFC 81 (relating to

attorneys’ fees and expenses) was not retained as

part of this rule but was, instead, incorporated into

RCFC 54(d)(2). 

In addition, former General Order No. 15,

titled “Honorary Bar Membership,” was slightly

modified 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, under

guidelines approved by the Judicial Conference of

the United States, of adding an amount to the

admission fee set pursuant to 28 U.S.C. § 1926(a)

for deposit into a fund to be used by the court for

the benefit of the members of the bench and the bar

in the administration of justice. 

2006 Amendment

Subdivision 83.1(b)(2)(A) (Admission to

Practice Upon Oral Motion) has been amended to
103 RCFC 83.2

provide some flexibility respecting when motions

for admission to practice will be heard upon oral

motion. 

2008 Amendment

The language of RCFC 83.1 has been

amended to conform to the general restyling of the

FRCP. 

2010 Amendment

RCFC 83.1 has been amended to restate the

qualifications for admission to practice before the

court (paragraph (b)(1)) and the procedures for

admission, whether by oral motion or by verified

application (paragraph (b)(2)). Specifically,

admission to the highest court of any U.S. state,

territory, or possession or the District of Columbia

will be recognized as the only acceptable

qualification for admission to practice before this

court and confirmation of an applicant’s admission

status will require submission of a current

certificate of good standing prepared by the clerk

of such court.

In addition, the time period of 3 days formerly

set forth in RCFC 83.1(b)(5)(B) has been changed

to 7 days in accordance with the FRCP’s general

guidelines for time computation that became

effective December 1, 2009.

Rule 83.2. Attorney Discipline

(a) In General. The United States Court of

Federal Claims, in furtherance of its inherent

power and responsibility to supervise the

conduct of attorneys who are members of its

bar, promulgates the following rule for

attorney discipline.

(b) Definitions. For purposes of this rule, the

following definitions apply:

(1) Another Court. Another court is defined

as any court of the United States, the

District of Columbia, or any U.S. state,

territory, possession, or commonwealth. 

(2) Serious Crime. A serious crime is defined

as:

(A) any felony; or 

(B) any lesser crime whose necessary

elements, as determined by the

statutory or common law definition of

the crime in the jurisdiction where the

conviction occurred, include:

(i) int e rf e r enc e wit h the

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 to

commit a serious crime.

(c) Grounds for Discipline. An attorney admitted

to practice before this court, including an

attorney admitted for the purpose of a

particular proceeding pursuant to RCFC

83.1(a)(2) or (b)(5), may be disciplined under

this rule on any of the following grounds:

(1) the conviction by another court of a

serious crime as defined in RCFC

83.2(b)(1) and (2);

(2) an act or omission that results in the

attorney’s disbarment or suspension by

another court;

(3) disbarment on consent or resignation from

the bar of another court while an

investigation into an allegation of

misconduct is pending; 

(4) failure to comply with the terms of this

rule, including failure to notify the court in

accordance with RCFC 83.2(e); or 

(5) any conduct before the court that is

unbecoming a member of the bar of this

court.

(d) Types of Discipline.

(1) In General. An attorney disciplined for

conduct identified in RCFC 83.2(c) may

be: 

(A) disbarred from the court;
RCFC 83.2 (cont.) 104

(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 may

warrant.

(2) Sanctions Under Other Provisions.

Assessment of damages, costs, expenses,

or attorney fees under RCFC 11, 16, 37, or

45, 28 U.S.C. § 1927, or similar statutory

provisions are not disciplinary sanctions

within the meaning of this rule and are not

governed by this rule. 

(e) Attorney’s Duty to Notify the Court of a

Conviction or Discipline Imposed by

Another Court.

(1) In General. An attorney admitted to

practice before this court must notify the

clerk in writing within 14 days of the

attorney’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 an

investigation into an allegation of

misconduct is pending.

(2) Contents of Notification. The notification

must 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 on

Attorney Discipline.

(2) Members.

(A) Appointment. The chief judge will

appoint three judges to the standing

panel to serve staggered three-year

terms, with the initial appointments

being for one-, two-, and three-year

terms and all subsequent appointments

being for three-year terms. 

(B) Eligibility for Reappointment. A

judge who has served on the standing

panel for three years will not be

eligible for appointment to another

term until three years after the

termination of his or her last

appointment. 

(C) Chairperson. The standing panel will

designate one of its members to serve

as the chairperson.

(3) Unavailability of a Standing Panel

Member.

(A) To Hear a Particular Matter. If a

member of the standing panel is

unable or unavailable to hear a

particular matter, the chief judge will

appoint another judge to be a member

of the panel for that matter. 

(B) To Complete the Member’s Term. If

a member of the standing panel is

unable to complete the remainder of

his or her term, the chief judge will

appoint another judge to serve the

remainder of the term.

(g) Initiating Disciplinary Proceedings.

(1) Docketing. Consistent with RCFC 83.2(l),

the clerk will maintain an attorney

disciplinary docket and will assign a

number to each matter. 

(2) Referring Matters to the Standing Panel.

The clerk must refer to the standing panel:

(A) any information received from another

court concerning a member of this

court’s bar involving disbarment,

suspension, disbarment on consent, or

resignation from the bar of another

court while an investigation into an

allegation of misconduct is pending;

and

 (B) any complaint regarding attorney

misconduct received from a judge or

special master of the court or a
105 RCFC 83.2 (cont.)

member of the public.

(3) Appointing Investigatory Counsel. 

(A) In General. The standing panel may

appoint the court’s staff attorney or

other appropriate court personnel to

investigate allegations of misconduct.

(B) Role of Investigatory Counsel. In

c o n d u c t i n g a d is c i p l i n a r y

investigation, the investigatory

counsel may:

(i) review the complaint and any

relevant documents available at

the court or provided by the

complainant; 

(ii) interview witnesses, including

the complainant and the

attorney subject to the

proceeding;

(iii) provide to the standing panel, at

the panel’s request, a report

detailing the investigatory

counsel’s findings; and

(iv) take any additional steps that are

reasonably necessary to

effectuate the investigation.

(4) Issuing and Serving a Show Cause Order.

To initiate a disciplinary proceeding, the

standing panel must:

(A) issue a show cause order describing

the attorney’s alleged misconduct and

directing the attorney to show cause

why a specific discipline should not be

imposed or why a discipline to be

determined at a later date should not

be imposed; and

(B) serve the order on the attorney in

accordance with RCFC 83.2(m).

(5) Presumed Discipline. Unless the standing

panel concludes that a different discipline

may be appropriate, the following

discipline is presumed to apply and should

be identified in the show cause order:

(A) For Conviction by Another Court of

a Serious Crime. Disbarment is the

presumed discipline for the conviction

by another court of a serious crime.

(B) For Disbarment or Suspension by

Another Court. Reciprocal disbarment

or suspension is the presumed

discipline for an act or omission that

results in an attorney’s disbarment or

suspension by another court.

(C) For Disbarment on Consent or

Resignation From the Bar of Another

Court. Reciprocal disbarment is the

presumed discipline for an attorney’s

disbarment on consent or resignation

from the bar of another court while an

investigation into an allegation of

misconduct is pending.

(D) For Conduct Unbecoming a Member

of the Bar of this Court. There is no

presumed discipline for conduct that is

unbecoming a member of the bar of

this court; the standing panel will

determine the appropriate discipline.

(6) Responding to a Show Cause Order.

Unless otherwise ordered, an attorney must

file any response to a show cause order

within 30 days after service of the order.

Any request for a hearing must be included

in the response.

(7) Dismissing a Matter Without Further

Proceedings. The standing panel may

dismiss a matter without further

proceedings if the panel concludes that the

allegation on its face is insufficient to

warrant the imposition of any discipline.

(h) Proceedings Before the Standing Panel.

(1) Representation by Counsel. An attorney

may be represented by counsel in any

disciplinary proceeding before the

standing panel.

(2) Suspending an Attorney. The standing

panel will immediately suspend an

attorney from practicing before the court

upon 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 from

the bar of another court while an
RCFC 83.2 (cont.) 106

investigation into an allegation of

misconduct is pending,

(3) Record of the Proceeding. 

(A) Content. The record will consist of

the show cause order, the response to

the order, all evidentiary materials,

and all documents, briefs, and

memoranda submitted to or considered

by the standing panel or the court. 

(B) Withhold i n g Inform ation.

Information will be withheld from an

attorney only in extraordinary

circumstances, e.g., for national

security or criminal investigation

purposes. 

(C) Copying and Responding to

Documents. If the record includes

documents in addition to the show

cause order and the response, an

attorney must be given the opportunity

to inspect and copy the additional

documents at his or her expense and, if

the attorney contests the charge but

has not requested a hearing, must be

given the opportunity to file a

supplemental response. 

(4) Issuing a Final Order in an Uncontested

Matter. If an attorney does not respond to

a show cause order issued pursuant to

RCFC 83.2(g)(4) or does not object to the

imposition of discipline, the standing panel

may issue a final order imposing such

discipline.

(5) Conducting a Hearing in a Contested

Matter.

(A) In General. If an attorney requests a

hearing in his or her response to a

show cause order or in a supplemental

response filed pursuant to RCFC

83.2(h)(3)(C), the standing panel will

schedule a hearing and will determine

whether the submission of evidence,

including the calling of witnesses, is

appropriate.

(B) Notice of Hearing. An attorney must

be given at least 30 days’ notice of the

time, date, and place of the hearing.

(C) Presumptions. 

(i) For Conviction by Another

Court of a Serious Crime.

When an attorney has been

convicted by another court of a

serious crime, the standing

panel:

(I) will treat the conviction

as conclusive evidence of

the commission of that

crime, whether the

conviction resulted from a

plea of guilty or nolo

contendere or from a

verdict after trial or

otherwise, and regardless

of the pendency of any

appeal; and

(II) will limit further

p r o c e e d i n g s t o a

determination of the final

discipline to be imposed.

(ii) For Disbarment, Suspension,

Disbarment on Consent, or

Resignation From the Bar of

Another Court. The standing

panel will treat an attorney’s

disbarment, suspension,

disbarment on consent, or

resignation from the bar of

another court while an

investigation into an allegation

of misconduct is pending as

conclusive evidence that the

misconduct in fact occurred and

that the discipline was

appropriate unless the standing

panel concludes that:

(I) the procedure was so

lacking in notice or an

opportunity to be heard

that it constituted a

deprivation of due

process;

(II) there was such an
107 RCFC 83.2 (cont.)

infirmity of proof

establis h i ng the

misconduct that this court

could not, consistent with

its duty, accept as final

the conclusion on the

matter;

(III) the imposition of the

same discipline by this

court would result in

grave injustice; or

(IV) t h e m i s c o n d u c t

established is deemed to

warrant substantially

different discipline.

(D) Subpoena. The standing panel may

compel by subpoena:

(i) the attendance of witnesses,

including the attorney subject to

the proceeding; and

(ii) the production of documents.

(E) Cross-Examining Witnesses. The

attorney subject to the proceeding

must be afforded an opportunity to

cross-examine any witnesses called by

the standing panel and to introduce

evidence in defense or mitigation.

(F) Recording. A hearing will be digitally

recorded unless an attorney arranges

to have a reporting service present at

his or her own expense.

(G) Post-Hearing Brief. The standing

panel may order the filing of a posthearing brief, which may include, at

the panel’s direction, either a

statement of facts or proposed findings

of fact. Post-hearing briefing is not a

matter of right.

(H)Issuing a Final Order. Following the

conclusion of the disciplinary

proceeding, the standing panel will

issue a final order.

(6) Reporting a Final Order. The standing

panel may: 

(A) direct the attorney or the clerk to send

a copy of the final order to all other

courts before which the attorney is

admitted; and

(B) direct the clerk to notify the National

Disciplinary Data Bank of the

discipline imposed.

(i) Disbarment on Consent While Disciplinary

Proceeding Is Pending.

(1) In General. At an attorney’s request and

upon receipt of the affidavit required under

RCFC 83.2(i)(2), the standing panel may

cease any investigation or proceeding

being conducted under this rule and may

enter an order disbarring the attorney on

consent.

(2) Affidavit. To initiate a disbarment on

consent, an attorney must file an affidavit

stating that:

(A) the attorney is aware that an

investigation or proceeding involving

allegations of the attorney’s

misconduct is currently pending, along

with a statement setting forth the

specifics of those allegations;

(B) the attorney acknowledges that the

material facts so alleged are true;

(C) the attorney consents to disbarment;

(D) the attorney is freely and voluntarily

rendering consent, is not being

subjected to coercion or duress, and is

fully aware of the implications of such

consent; and

(E) the attorney consents to disbarment

because the attorney knows that if

charges were brought on the matters

under investigation, the attorney could

not present a successful defense.

(j) Review of the Standing Panel’s Final Order.

(1) A Petition for Rehearing. 

(A) In General. An attorney may seek

review of the standing panel’s final

order either by:

(i) filing a petition for rehearing by

the standing panel; or 

(ii) filing a combined petition for

rehearing by the standing panel

and suggestion for rehearing by
RCFC 83.2 (cont.) 108

the active judges of the court.

(B) Contents. The petition must state with

particularity each point of law or fact

that the petitioner believes the

standing panel has overlooked or

misapprehended.

(C) Time for Filing. Any petition for

rehearing must be filed within 14 days

after entry of the standing panel’s final

order.

(2) By Order of the Court. A majority of the

active judges may order that a disciplinary

matter be reheard by the active judges of

the court.

(3) Limitations on Rehearing by the Active

Judges of the Court. A rehearing by the

active judges of the court is not favored

and will generally not be ordered except

when necessary to secure or maintain

uniformity of the court’s decisions or

when the proceeding involves a question

of exceptional importance. 

(k) Reinstatement.

(1) A Petition for Reinstatement. 

(A) Contents. A petition for reinstatement

must demonstrate by clear and

convincing evidence that:

(i) the petitioner has the necessary

mor a l qu a lifications,

competency, and learning in the

law required for readmission;

and 

(ii) the petitioner’s resumption of

the practice of law will not be

detrimental to the integrity and

standing of the bar, to the

administration of justice, or to

the public interest. 

If a hearing is requested, such request

must be included in the petition. 

(B) Time for Filing.

(i) After Conviction by Another

Court of a Serious Crime. If

disbarment by this court was

imposed based on an attorney’s

conviction by another court of a

serious crime, the attorney may

file a petition for reinstatement

only when the conviction is

vacated or reversed.

(ii) Aft e r Dis b a rment or

Suspension by Another Court.

If disbarment or suspension by

this court was imposed

reciprocally based on an

attorney’s disbarment or

suspension by another court, the

attorney may file a petition for

reinstatement only when the

original discipline is lifted or

expires.

(iii) After Disbarment. An attorney

who has been disbarred as a

result of conduct that is

unbecoming a member of the

bar of this court may file a

petition for reinstatement any

time after the expiration of three

years from the effective date of

the disbarment.

(iv) After Suspension. 

(I) When Reinstatement Is

Not Automatic. If the

order suspending an

attorney for conduct that

is unbecoming a member

of the bar of this court

does not include an

automatic right of

reinstatement, such

attorney may file a

petition for reinstatement

after the suspension

period expires. 

(II) When Reinstatement Is

Automatic. If the original

suspension order directs

that reinstatement be

automatic, the standing

panel will issue an order

reinstating the attorney

within 14 days after
109 RCFC 83.2 (cont.)

receiving the attorney’s

affidavit of compliance

with the suspension order.

(v) Successive Petitions. An

attorney may not file a

successive petition for

reinstatement until the

expiration of at least one year

from the date of an adverse

judgment on an earlier petition.

(C) Fees and Costs. The standing panel

may direct that the petitioner provide

an advance cost deposit in an amount

set by the panel to cover anticipated

costs of the reinstatement proceeding.

(2) Conducting a Hearing. The standing

panel will conduct a hearing on a petition

for reinstatement if:

(A) the petitioner requests such a hearing;

and

(B) the panel is not satisfied based on the

petition alone that reinstatement is

appropriate.

(3) Issuing a Final Order. The standing

panel will issue a final order, with or

without a hearing, either:

(A) denying the petition for reinstatement;

or

(B) granting the petition if the panel

determines that the petitioner is fit to

resume the practice of law and

concludes, upon a showing of good

cause, that it would be in the interest

of justice to reinstate the petitioner.

(4) Conditions of Reinstatement. 

(A) In General. Reinstatement may be

conditioned on the payment of all or

part of the costs of the reinstatement

proceeding and on the making of

partial or complete restitution to any

parties harmed by the conduct that led

to the petitioner’s suspension or

disbarment. 

(B) For Disbarment or Suspension of

Five Years or More. If the petitioner

has been disbarred or suspended for

five years or more, reinstatement may,

in the discretion of the standing panel,

additionally be conditioned on the

furnishing of proof of competency and

learning in law, including a

certification by the bar examiners of a

state or other jurisdiction of the

petitioner’s successful completion of

an examination for admission to

practice subsequent to the date of

disbarment or suspension. 

(l) Access to Information.

(1) Confidentiality of an Ongoing

Disciplinary Proceeding. An ongoing

disciplinary proceeding must be kept

confidential unless:

(A) the attorney subject to the proceeding

requests that the proceeding, including

any hearing before the standing panel

and the record compiled in the matter

pursuant to RCFC 83.2(h)(3), be open

to the public; or 

(B) the standing panel determines that it is

appropriate to disclose the subject

matter and status of a proceeding

where: 

(i) the proceeding is based on the

conviction by another court of a

serious crime;

(ii) the proceeding is based on an

allegation that has become

generally known to the public;

or

(iii) there is a need to notify a person

or entity to protect the public,

the legal profession, or the

administration of justice.

(2) Confidentiality After Issuance of a Final

Order. 

(A) When No Discipline or a Private

Reprimand Is Imposed. If the final

order imposes no discipline or imposes

a private reprimand, the record of the

proceeding compiled pursuant to

RCFC 83.2(h)(3) must be kept

confidential unless the attorney
RCFC 83.3 110

subject to the proceeding requests that

it be made part of the public record.

(B) When an Attorney Is Disbarred on

Consent. An order disbarring an

attorney on consent must be made part

of the public record, but the affidavit

required under RCFC 82.3(i)(2) may

not be publicly disclosed or made

available for use in any other

proceeding except on order of the

standing panel. 

(C) All Other Cases. If other discipline is

imposed, the final order and the record

of the proceeding must be made part

of the public record at the time the

final order is issued. The standing

panel may, however, issue a

permanent protective order prohibiting

the disclosure of any part of the record

to protect the interest of a

complainant, a witness, a third party or

nonparty, or the attorney subject to the

proceeding.

(m)Service.

(1) Show Cause Order. A show cause order

must be served in person or by registered

or certified mail addressed to the attorney

at the attorney’s last known address. If

service by registered or certified mail is

ineffective, the standing panel must enter

an order as appropriate to effect service.

(2) All Other Papers and Notices. Any other

paper or notice is served by mailing the

paper or notice to the attorney’s last

known address.

(n) Retention of Authority. Nothing contained in

this rule should be construed to deny an

individual judge the authority to maintain

control over court proceedings, such as

proceedings for contempt, issuance of public

reprimands, or the imposition of fines of not

more than $1,000.00.

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

Nov. 3, 2008, July 13, 2009.) 

Rules Committee Notes

2002 Revision

Former RCFC 83.2 has been renumbered as

RCFC 7.1. New RCFC 83.2 formerly appeared in

these rules as Appendix F. The incorporation of

former Appendix F into the main body of the

court’s rules reflects a more logical placement of

its subject matter in the organizational structure of

the court’s rules.

2008 Amendment

The language of RCFC 83.2 has been amended

to conform to the general restyling of the FRCP. 

2009 Amendment

RCFC 83.2 has been rewritten in its entirety.

The new rule is intended to simplify the court’s

procedures for the disposition of attorney discipline

matters by providing for the appointment, by the

chief judge, of a three-member standing panel of

the court’s judges to address all aspects of the

disciplinary process, from the investigation of

charges, to the conduct of hearings, to the

determination of appropriate discipline. 

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 this

court on behalf of any party in a case provided

that:

(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

(3) the written consent and approval have been

filed with the clerk.

(b) Eligibility. To make an appearance under this

rule, a law student must:

(1) be a student in good standing at a law

school approved by the American Bar

Association;

(2) have completed legalstudies amounting to

at least two semesters, or the equivalent

thereof if the school operates on some

basis other than a semester basis;
111 RCFC 83.3 (cont.)

(3) have knowledge of the Rules of the United

States Court of Federal Claims, the Federal

Rules of Evidence, and the American Bar

Association Model Rules of Professional

Conduct;

(4) be enrolled for credit in a clinical program

at an accredited law school that maintains

malpractice insurance for its activities and

conducts its activities under the direction

of a faculty member of the law school;

(5) be certified by the dean of the law school

as being of good character and of

sufficient legal ability, and as being

adequately trained in accordance with

RCFC 83.3(b)(1)–(4) to fulfill the

responsibilities of a legal intern to both the

client and the court. Such certification

must be filed with the clerk and may be

withdrawn at any time by the dean upon

written notice to the clerk;

(6) be certified by the chief judge to practice

pursuant to this rule. Such certification

may be withdrawn at any time by the chief

judge or, in a given case, by the judge or

special master before whom the law

student has entered an appearance, without

notice of hearing and without any showing

of cause; and

(7) neither ask for nor receive any fee or

compensation of any kind from the client

on whose behalf service is rendered. This

rule does not, however, prevent a lawyer,

a legal aid bureau, a law school, or the

government from paying compensation to

an eligible law student or from making

such charges for their services as may

otherwise be proper, nor does it prevent

any clinical program from receiving

otherwise proper fees and expenses under

RCFC 54(d)(2). 

(c) Scope of Appearance. A law student who has

entered an appearance in a case may:

(1) appear on the brief(s) and other written

pleadings filed with the court, provided

that the supervising attorney has read,

approved, and co-signed all such

documents; 

(2) participate in all proceedings ordered by a

judge or special master, including the

taking of depositions, provided that the

supervising attorney is present at all such

proceedings;

(3) engage in all other activities on behalf of

the client in all ways that a licensed

attorney may, subject to the general

direction of the supervising attorney; and

(4) make a binding commitment on behalf of

the client provided that both the client and

the supervising attorney have approved of

such commitment.

(d) Supervising Attorney.A supervising attorney

under this rule will be deemed the attorney of

record pursuant to RCFC 83.1(c) and must:

(1) be a member in good standing of the bar of

this court;

(2) be approved for such service by the dean

of the law school at which the law student

is enrolled;

(3) be certified by this court as a student

supervisor;

(4) assist and counsel the student in activities

allowed under this rule and review such

activities with the student, to the extent

appropriate under the circumstances, for

the proper practical training of the student

and the protection of the client;

(5) assist the student in the preparation of the

case to the extent the supervising attorney

considers necessary and be available for

consultation with the client;

(6) be present with the student in all

proceedings before a judge or special

master;

(7) co-sign all pleadings and other documents

filed with the court;

(8) supplement oral or written work of the

student as necessary to ensure proper

representation of the client;

(9) assume full professional responsibility for

any guidance relating to any work

undertaken by the student and for the

quality of the student’s work; and
RCFC 83.4, 84, and 85 112

(10) notify the dean of the law school at

which the student is enrolled of any

alleged failure on the part of the

student to abide by the letter and spirit

of this rule. 

(e) Retention of Authority. Nothing in this rule

should be construed to prevent a judge from

establishing exceptions to the activities set

forth in RCFC 83.3(c), or from limiting a

student’s participation in a particular case.

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 83.3 replaces former General Order

No. 35, adopted on September 3, 1993. The only

changes are stylistic or correct cross-references. 

2008 Amendment

The language of RCFC 83.3 has been amended

to conform to the general restyling of the FRCP. 

Rule 83.4. Advisory Council

(a) In General. The United States Court of

Federal Claims Advisory Council will advise

the court on matters referred to it by the court

or deemed relevant by the council’s members

pertaining to the administration of the court

and the court’s relationship to the bar and to

the public. 

(b) Membership. The council will consist of no

fewer than 20 members of the bar of the court,

appointed by the chief judge to three-year

terms, and must include representatives of all

of the court’s practice areas. The chief judge

will designate one of these members as the

chairperson and will additionally appoint one

or more of the judges of the court as a liaison

between the court and the council. 

(c) Organization. The council will meet at such

times and places as agreed to by its members.

(The chief judge will provide facilities at the

court to accommodate such meetings if

necessary.) All members of the council,

including the chief judge and the court’s

liaison judge[s], may attend meetings and

participate in discussions, but only council

members may vote on matters before the

council. Council members may designate

officers and committees and take any other

steps appropriate to conduct the council’s

business.

(d) Recommendations. The council may transmit

its recommendations to the court informally or

formally by letter to the chief judge. The court

may consider any recommendation of the

council and take such action as the court deems

appropriate. 

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

New RCFC 83.4 replaces General Order No. 7,

which established the Advisory Council on April 5,

1983. In addition to minor stylistic and formatting

changes, the new rule has increased the number of

members allowed on the Council and makes the

chief judge responsible for designating the

chairperson. 

2008 Revision

The language of RCFC 83.4 has been amended

to conform to the general restyling of the FRCP. 

Rule 84. Forms

Forms referenced in these rules are set forth in the

Appendix of Forms. 

(As revised and reissued May 1, 2002.) 

Rules Committee Note

2002 Revision

RCFC 84 parallels in content its FRCP

counterpart. 

Rule 85. Title

These rules may be cited as the Rules of the United

States Court of Federal Claims.
113 RCFC 86

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

Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 85 has been changed to reflect the

change in the court’s name. 

2008 Amendment

The language of RCFC 85 has been amended

to conform to the general restyling of the FRCP. 

Rule 86. Effective Date

These rules and any subsequent amendments are

applicable to all proceedings pending at the time of

the adoption of the revision or amendment or

thereafter filed, except to the extent that the court

determines that their application to a pending

action would not be feasible or would work

injustice, in which event the former procedure

applies. 

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

June 20, 2006, Nov. 3, 2008.) 

Rules Committee Notes

2002 Revision

RCFC 86 reflects the effective date of the most

recent revision to the court’s rules. In addition, the

rule adopts the practice of the FRCP to presume

application of rule changes to pending cases. 

Future revisions to these rules will be posted

on the court’s website at www.uscfc.uscourts.gov.

2006 Amendment

The 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 such

amendments would not be feasible or would work

injustice.

2008 Amendment

The language of RCFC 86 has been amended

to conform to the general restyling of the FRCP.
Appendix A 114

APPENDIX A

CASE MANAGEMENT PROCEDURE

I. PURPOSE

1. These case management procedures are

intended to promote cooperation among counsel,

assist in the early identification of issues, minimize

the cost and delay of litigation, and enhance the

potential for settlement. (As used in this appendix,

“counsel” shall be construed to include

unrepresented parties.)

2. Uniformity of practice within the court also

is an important goal of these procedures. For the

purpose of promoting the efficient administration

of justice, a judge may modify these procedures as

appropriate, or the parties may suggest

modification of these procedures to meet the needs

of a particular case.

II. EARLY MEETING OF COUNSEL

3. Subsequent to the filing of defendant’s

answer or, if applicable, a reply to a counterclaim,

and, in any event, within sufficient time to permit

the parties to file a Joint Preliminary Status Report

in accordance with paragraph 4, below, plaintiff's

counsel shall communicate with defense counsel,

and counsel shall confer:

(a) to initiate preparation of the Joint

Preliminary Status Report pursuant to

paragraphs 4–6;

(b) to identify each party's factual and

legal contentions;

(c) to make or arrange for the disclosures

required by RCFC 26(a)(1);

(d) to discuss any issues relating to

preserving discoverable information, and to

develop a proposed discovery plan that

indicates the parties’ views and proposals

concerning: 

(1) what changes should be made in

the timing, form, or requirement for

disclosures under RCFC 26(a), including

a statement as to when disclosures under

RCFC 26(a)(1) were made or will be

made;

(2) the subjects on which discovery

may be needed, when discovery should be

completed, and whether discovery should

be conducted in phases or be limited to or

focused upon particular issues;

(3) any issues relating to disclosure or

discovery of electronically stored

information, including the form or forms

in which it should be produced;

(4) any issues relating to claims of

privilege or of protection as trialpreparation material, including—if the

parties agree on a procedure to assert such

claims after production—whether to ask

the court to include their agreement in an

order;

(5) what changes should be made in

the limitations on discovery imposed

under these rules and what other

limitations should be imposed; and

(6) any other orders that should be

entered 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 or

dispositive motion; and 

(f) to discuss settlement of the action,

including use of alternative dispute resolution.

See Appendix H.

Participating counsel shall be counsel of record

and such other attorneys as necessary so that

participating counsel for each party are

knowledgeable about the case, the identity of

witnesses, and the location of documents. 

III. JOINT PRELIMINARY STATUS

REPORT

4. No later than 49 days after defendant’s

answer or plaintiff’s reply to a counterclaim is

served, the parties shall file with the clerk a Joint
115 Appendix A

Preliminary Status Report, signed by both parties,

setting forth answers to the following questions

(separate views may be set forth on any point on

which the parties cannot agree): 

(a) Does the court have jurisdiction over

the action?

(b) Should the case be consolidated with

any other case and, if so, why?

(c) Should trial of liability and damages

be bifurcated and, if so, why?

(d) Should further proceedings in the case

be deferred pending consideration of another

case before this court or any other tribunal

and, if so, why?

(e) In cases other than tax refund actions,

will a remand or suspension be sought and, if

so, why and for how long?

(f) Will additional parties be joined? If so,

the parties shall provide a statement describing

such parties, their relationship to the case, the

efforts to effect joinder, and the schedule

proposed to effect joinder.

(g) Does either party intend to file a

motion pursuant to RCFC 12(b), 12(c), or 56

and, if so, what is the schedule for the intended

filing?

(h) What are the relevant factual and legal

issues?

(i) What isthe likelihood of settlement? Is

alternative dispute resolution contemplated?

(j) Do the parties anticipate proceeding to

trial? Does either party, or do the parties

jointly, request expedited trial scheduling and,

if so, why? A request for expedited trial

scheduling is generally appropriate when the

parties anticipate that discovery, if any, can be

completed within a 90-day period, the case can

be tried within 3 days, no dispositive motion is

anticipated, and a bench ruling is sought. The

requested place of trial shall be stated. Before

such a request is made, the parties shall confer

specifically on this subject. 

(k) Are there special issues regarding

electronic case management needs?

(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 a

proposed discovery plan, including proposed

deadlines. The parties shall propose a deadline for

fact discovery, for the disclosure of any experts’

reports, and for depositions or other discovery of

experts. See RCFC 26(a)(2) concerning disclosure

of experts and discovery planning. 

6. Unless otherwise ordered, the Joint

Preliminary Status Report shall be deferred

indefinitely if on or before the date the Joint

Preliminary Status Report is due a dispositive

motion addressing all issues is filed. 

IV. PRELIMINARY SCHEDULING 

CONFERENCE AND SCHEDULING

ORDER

7. Preliminary Scheduling Conference.

After the filing of the Joint Preliminary Status

Report, the judge will ordinarily conduct the

preliminary scheduling conference contemplated

by RCFC 16 to acquaint the court with the issues

in the case, to discuss any special problems that

may exist, and to establish a schedule for further

proceedings. In the interest of justice and judicial

economy, a preliminary scheduling conference will

not be held if, in the court’s assessment, further

discussion of the matters presented in the Joint

Preliminary Status Report would not be useful.

8. Scheduling Order. After the preliminary

scheduling conference or, if none is held, after the

filing of the Joint Preliminary Status Report, the

judge shall promptly enter the scheduling order

called for by RCFC 16(b). 

V. DISCOVERY

9. Interrogatories, Requests for Admission,

Responses. A party shall number interrogatories

and requests for admission sequentially without

repeating the numbers it has used in any prior set

of interrogatories or requests for admission. By

counsel's signature to the answers and pursuant to

RCFC 11, counsel for the responding party shall

certify that counsel has made a diligent effort to
Appendix A 116

provide answers to all portions of interrogatories or

requests for admission to which it does not

specifically object.

10. Discovery Motions. A motion to compel

or to protect from discovery shall contain a

statement that the movant has in good faith

conferred or attempted to confer to resolve the

matters in dispute. 

VI. POST-DISCOVERY PROCEEDINGS

11. Post-Discovery Conference. Upon

completion of all discovery (including discovery of

any experts), the court shall hold a post-discovery

conference to determine howthe case will proceed.

The attorneys appearing at the post-discovery

conference shall be the attorneys who are expected

to try the case and are thoroughly familiar with it.

At the conference, counsel will be called upon to

(i) address the factual and legal issues in dispute,

(ii) discuss the evidence and decisional law that

each side offers in support of its position, and (iii)

identify the best means of resolving the dispute,

i.e., whether by summary judgment, trial, or an

alternative method of dispute resolution.

12. Scheduling Order. See generally

RCFC 16 and 56. Promptly after the postdiscovery conference, the judge shall enter a

scheduling order to address further proceedings.

For cases that will proceed by summary judgment

in accordance with RCFC 56, the order shall

establish a schedule for the filing of summary

judgment motions and briefs. For cases to be

resolved by trial, the order shall set (1) the time

and place of trial, (2) the time and place of the

final pretrial conference, and (3) the date by which

the memoranda and disclosures called for by

paragraphs 14–18 are due. 

13. Meeting of Counsel. For cases to be

resolved by trial, counsel for the parties shall meet

no later than 63 days before the pretrial conference

and accomplish the following: 

(a) Exhibits. Exchange a list of all

exhibits (including summaries, see Fed. R.

Evid.1006) to be used at trial for case-in-chief

or rebuttal purposes, except those to be used

exclusively for impeachment. Each exhibit

listed shall be identified by an exhibit number

and description. Unless previously exchanged,

counsel for the parties shall exchange a copy

of each exhibit listed. In the case of exhibits

to be offered as summaries under Fed. R. Evid.

1006, the offering party shall provide opposing

counsel with a statement with respect to each

summary exhibit describing the source(s) for

the items or figures listed (e.g., ledgers,

journals, payrolls, invoices, checks, time cards,

etc.), the location(s) of the source(s), a time

when the source(s) may be examined or

audited by the opposing party, the name and

address of the person(s) who prepared each

summary and who will be made available to

the opposing party during any examination or

audit of the source material to provide

information, and explanations necessary for

verification of the information in the summary.

Failure to list an exhibit shall result in

exclusion of the exhibit at trial absent

agreement of the parties to the contrary or a

showing of a compelling reason for the failure.

See also RCFC 26(a)(1), (2). 

(b) Witnesses. Exchange a list of names,

addresses, and telephone numbers of

witnesses, including expert witnesses, who

may be called at trial for case-in-chief or

rebuttal purposes, except those to be used

exclusively for impeachment. Failure of a

party to list a witness shall result in the

exclusion of the witness’s testimony at trial

absent agreement of the parties to the contrary

or a showing of a compelling reason for the

failure. Any witness whose identity has not

been previously disclosed shall be subject to

discovery. As to each witness, the party shall

indicate the specific topics to be addressed in

the expected testimony. 

(c) Conference. 

(1) Disclose to opposing counsel the

intention to file a motion for leave to file

a transcript of deposition for introduction

at trial. 

(2) Resolve, if possible, any objections
117 Appendix A

to the admission of testimony (including

deposition testimony) or exhibits. 

(3) Disclose to opposing counsel all

contentions as to applicable facts and law,

unless previously disclosed. 

(4) Engage in good-faith, diligent

efforts to stipulate and agree to facts about

which the parties know, or have reason to

know, there can be no dispute for the

purpose of simplifying the issues at trial. 

(5) Consider agreement to submitting

the case to the court for resolution

(including any factual disputes) on the

basis of a documentary record submitted

by the parties. See also RCFC 43(c). 

(6) Exhaust all possibilities of

settlement. 

(d) Certification. Within 7 days after the

meeting, counsel shall file a Joint Certification

verifying that they met and accomplished all

matters required by this paragraph. 

14. Memorandum of Contentions of Fact

and Law.

(a) Plaintiff’s Memorandum. No later

than 49 days before the pretrial conference,

plaintiff shall file a Memorandum of

Contentions of Fact and Law. The

memorandum shall contain the following:

(1) a full but concise statement of the

facts plaintiff expects to prove and a

discussion of plaintiff’s position with

respect to the facts on which defendant is

expected to rely; 

(2) a statement of the issues of fact

and law to be resolved by the court. The

issues should be set forth in sufficient

detail to enable the court to resolve the

case in its entirety by addressing each of

the issues listed; 

(3) a discussion of the legal principles

plaintiff contends are applicable, as well

as plaintiff’s response to defendant’s

anticipated legal position. Any objection

to a witness or exhibit listed under

paragraph 13 shall be made in the

Memorandum of Contentions of Fact and

Law or in a separate motion filed on the

same date; 

(4) if plaintiff believes that bifurcation

of the issues for trial is appropriate, the

memorandum shall contain a request

therefor, together with a statement of

reasons. 

(b) Defendant’s Memorandum. No later

than 21 days before the pretrial conference,

defendant shall file its responsive

memorandum in the same form and content as

plaintiff's.

(c) Responses. The parties shall cooperate

in the exchanges specified in paragraph 13.

Consequently, any responses to matters

expected to be raised by the opposing party

shall be included in each party's Memorandum

of Contentions of Fact and Law. However, if

anything new or unexpected is discovered, it

may be addressed in a brief response which

must be filed under cover of a motion for leave

immediately upon learning of it.

(d) Proposed Findings of Fact and

Conclusions of Law. The judge may, in lieu

of the Memoranda of Contentions of Fact and

Law, order the filing of Proposed Findings of

Fact and Conclusions of Law, including, at the

judge’s direction, annotations to the exhibits or

witnesses on which the party will rely to prove

the findings. 

15. Witness List. 

(a) Each party shall file, together with the

Memorandum of Contentions of Fact and Law,

a separate statement setting forth a list of

witnesses to be called at trial for case-in-chief

or rebuttal purposes, except those to be used

exclusively for impeachment. The witness list

shall separately identify those whom the party

expects to present and those whom the party

may call if the need arises. As to each witness,

the party shall indicate the specific topics to be

addressed in the expected testimony and the

time needed for direct examination. 

(b) Any party intending to present

substantive evidence by way of deposition

testimony, other than as provided by Fed. R.
Appendix A 118

Evid. 801(d), shall serve and file a separate

motion for leave to file the transcript of such

testimony. The motion shall show cause why

the deposition testimony should be admitted

and identify specifically the portions of the

transcript(s) the party intends to use at trial.

See RCFC 32(a). If the motion is granted,

only those identified portions of the transcript

may be filed. 

16. Exhibit List. Each party shall file,

together with the Memorandum of Contentions of

Fact and Law, a separate statement setting forth a

list of exhibits it expects to offer at trial for casein-chief or rebuttal purposes (including summaries

to be offered pursuant to Fed. R. Evid. 1006), other

than those to be used exclusively for impeachment.

The exhibit list shall separately identify those

exhibits that the party expects to offer and those

that the party may offer if the need arises.

17. Stipulations. The parties shall file, either

before or after the pretrial conference, a stipulation

setting forth all factual matters as to which they

agree. 

VII. OTHER MATTERS

18. Joint Exhibits. Prior to the final pretrial

conference, the parties shall review the exhibit lists

filed with the court and consolidate as many

exhibits as possible into a set of joint exhibits for

use at trial. All joint exhibits shall be identified in

a joint exhibit list that identifies each exhibit by a

joint exhibit number and description.

19. Post-Trial Briefing. The judge may order

the filing of post-trial briefs, which may include, at

the judge’s direction, either a statement of facts or

proposed findings of fact, together with citations to

the record. Post-trial briefing is not a matter of

right.

Rules Committee Notes

2002 Revision

Appendix A represents the court’s standard

pretrial order. The case management procedures

contained in Appendix A reflect those procedures

that are considered, in the collective experience of

the court and the members of its bar, to be most

beneficial in securing the prompt and expeditious

resolution of claims and disputes. Some important

changes have been introduced. Chief among these

are procedures calling for a preliminary scheduling

conference to be set following the filing of the

Joint Preliminary Status Report, and a postdiscovery conference following the completion of

discovery. The expectation reflected in these

conference procedures is that early and ongoing

involvement of the court during the pretrial

development of a case can contribute both to a

prompt identification of the issues and to a

narrowing of the scope of the dispute.

The promulgation of Appendix A as a

synthesis of the views of the bench and the bar is

intended to encourage standardization in pretrial

practice procedures. Appendix A recognizes,

however, that the pretrial procedures to be

followed in any particular case ultimately depend

upon the needs of that case. Hence, Appendix A

permits modification of its procedures, either at a

judge’s initiative or at the parties’ suggestion,

when such modification will promote the efficient

administration of justice. 

2005 Amendment

Subparagraph (d) has been added to

paragraph 13 (Meeting of Counsel) to provide the

court with timely confirmation that counsel have

exchanged exhibit and witness lists and have

conferred regarding: (i) intentions to seek

introduction of deposition transcripts; (ii)

resolution of objections to the admission of

testimony or exhibits; (iii) disclosure of applicable

fact and law contentions; (iv) good-faith efforts to

stipulate facts and to simplify trial; (v) agreement

for submission on the basis of a documentary

record; and (vi) exhaustion of settlement efforts.

In addition, paragraph 17 (Stipulations) has been

amended to emphasize the importance of

stipulations in the pretrial process. 

2007 Amendment

Paragraph 3, describing requirements relating

to the early meeting of counsel, has been amended
119 Appendix A

to include the requirements added by the

December 1, 2006, amendment to the essentially

comparable provision set forth in FRCP 26(f)

(“Conference of Parties; Planning for Discovery”).
Appendix B 120

APPENDIX B

VACCINE 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 Court of

Federal Claims pursuant to the National

Childhood Vaccine Injury Act, as amended,

42 U.S.C. §§ 300aa-1 to -34 (Vaccine Act),

including proceedings before the Office of

Special Masters and any subsequent

proceedings before a judge of the Court of

Federal Claims. 

(b) Matters Not Specifically Addressed by the

Vaccine Rules. In any matter not specifically

addressed by the Vaccine Rules, the special

master or the court may regulate the

applicable practice, consistent with these

rules and with the purpose of the Vaccine

Act, to decide the case promptly and

efficiently. 

(c) Applying the RCFC. The RCFC apply only

to the extent they are consistent with the

Vaccine Rules. 

(As revised and reissued May 1, 2002; as

amended July 13, 2009.)

Rule 2. Commencing an Action

(a) In General. A proceeding for compensation

under the Vaccine Act is commenced by

filing a petition with the United States Court

of Federal Claims. Only one petition may be

filed with respect to each administration of a

vaccine.

(b) Method of Filing; Filing Fee. Petitioner

must forward an original and two copies of

the petition, along with the required filing fee,

by mail or other delivery, to:

Clerk

United States Court of Federal Claims

717 Madison Place, NW

Washington, DC 20005.

A copy of the applicable schedule of fees may

be found on the court’s website at

www.uscfc.uscourts.gov or may be obtained

by contacting the clerk’s office. 

(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 of

compensation, including:

(i) the name of the individual to

whom the vaccine was

administered;

(ii) the date and place of the

vaccination;

(iii) a specific description of the

injury alleged; and 

(iv) whether the injury claimed is

contained within the Vaccine

Injury Table (see “Guidelines

for Practice Under the

National Vaccine Injury

Compensation Program,”

Attachment 8, posted on the

c o u r t ’s w e b si te at

www.uscfc.uscourts.gov);

and

(B) a specific demand for relief to

which the petitioner asserts

entitlement or a statement that

such demand will be deferred

pursuant to 42 U.S.C. § 300aa11(e).

(2) Required Attachments. As required by

42 U.S.C. § 300aa-11(c), the petition

must be accompanied by the following

documents:

(A) Medical Records. The petitioner

must include all available medical
121 Appendix B

records supporting the allegations

in the petition, including physician

and hospital records relating to:

(i) the vaccination itself; 

(ii) the injury or death, including,

if applicable, any autopsy

reports or death certificate; 

(iii) any post-vaccination

treatment of the injured

person, including all inpatient and out-patient

records, provider notes, test

results, and medication

records; and 

(iv) if the injured person was

younger than five years when

vaccinated, the mother’s

pregnancy and delivery

records and the infant’s

lifetime records, including

physicians’ and nurses’

notes, test results, and wellbaby visit records, as well as

growth charts, until the date

of vaccination.

(B) Affidavits. 

(i) If the required medical

records are not submitted, the

petitioner must include an

affidavit detailing the efforts

made to obtain such records

and the reasons for their

unavailability.

(ii) If petitioner’s claim does not

rely on medical records alone

but is also based in any part

on the observations or

testimony of any person, the

petitioner should include the

substance of each person’s

proposed testimony in a

deta iled affid a v it(s)

supporting all elements of the

allegations made in the

petition.

(C) Proof of Authority to File in a

Representative Capacity. If the

petition is filed on behalf of a

deceased person or is filed by an

individual other than the injured

person or the parent of an injured

minor, the petition must also be

accompanied by documents

establishing the authority to file

the petition in a representative

capacity or a statement explaining

when such documentation will be

available.

(d) Format. All documents accompanying the

petition must be assembled into one or more

bound volume(s) or three-ring notebook(s).

Each bound volume or notebook must

contain the caption of the case and a table of

contents, and all pages of each bound

volume or notebook must be numbered

consecutively.

(e) Service.

(1) The petitioner must serve one copy of

the petition and accompanying

documents on the Secretary of Health

and Human Services, by first class or

certified mail, to:

Director, Division of Vaccine

Injury Compensation 

Healthcare Systems Bureau 

Parklawn Building, Room 11C-26

5600 Fishers Lane 

Rockville, MD 20857.

(2) The clerk must serve one copy of the

petition and accompanying documents

on the Attorney General.

(As revised and reissued May 1, 2002; as

amended Sept. 15, 2003, Aug. 2, 2005, July 13,

2009.)

TITLE II. PROCEEDINGS BEFORE THE

SPECIAL MASTER

Rule 3. Role of the Special Master

(a) Case Assignment. After a petition has been
Appendix B 122

filed with the clerk, the chief special master

will assign the case to a special master to

conduct proceedings in accordance with the

Vaccine Rules

(b) Duties. The special master is responsible

for:

(1) conducting all proceedings, including

taking such evidence as may be

appropriate, making the requisite

findings of fact and conclusions of law,

preparing a decision, and determining

the amount of compensation, if any, to

be awarded; and

(2) endeavoring to make the proceedings

expeditious, flexible, and less

adversarial, while at the same time

affording each party a full and fair

opportunity to present its case and

creating a record sufficient to allow

review of the special master’s decision.

(c) Absence. In the absence of the assigned

special master, the chief special master may

act on behalf of the special master or

designate another special master to act. 

(d) Reassignment. When necessary for the

efficient administration of justice, the chief

special master may reassign the case to

another special master.

(As revised and reissued May 1, 2002; as

amended July 13, 2009.)

Rule 4. Respondent’s Review of Petitioner’s

Records; Early Status Conference;

Respondent’s Report

(a) Respondent’s Review of Petitioner’s

Records. 

(1) In General. Within 30 days after the

filing of a petition, respondent must

review the accompanying documents to

determine whether all information

necessary to enable respondent to

evaluate the merits of the claim has

been filed. 

(2) Missing Documents. If respondent

concludes that relevant documents are

missing, respondent must immediately

notify petitioner regarding the

perceived omission. 

(3) Disagreement Between the Parties. If

the parties disagree about the

completeness of the records filed or the

relevance of the requested information,

either party may request the special

master to resolve the matter. 

(b) Early Status Conference. The special

master may convene an early status

conference within 45 days after the filing of

the petition to discuss the case. 

(c) Respondent’s Report. 

(1) In General. Within 90 days after the

filing of a petition, or in accordance

with any schedule set by the special

master after petitioner has satisfied all

required documentary submissions,

respondent must file a report setting

forth a full and complete statement of

its position as to why an award should

or should not be granted. 

(2) Contents. The report must contain

respondent’s medical analysis of

petitioner’s claims and must present any

legal arguments that respondent may

have in opposition to the petition.

General denials are not sufficient.

(As revised and reissued May 1, 2002; as

amended Aug. 2, 2005, July 13, 2009.)

Rule 5. Preliminary Status Conference and

Tentative Findings and Conclusions

(a) In General. The special master will hold a

status conference within 30 days after the

filing of respondent’s report under Vaccine

Rule 4(c) to: 

(1) afford the parties an opportunity to

address each other’s positions; 

(2) review the materials submitted and

evaluate the parties’ respective

positions; and

(3) present tentative findings and

conclusions. 
123 Appendix B

(b) Scheduling Order. At the conclusion of

this status conference, the special master

may issue a scheduling order outlining the

necessary proceedings for resolving the

issues presented in the case.

(c) Imposing Fees and Costs.

(1) Authority. To ensure effective case

management, the special master is

authorized under RCFC 16(f)(2) to

order a party, its attorney, or both to

pay the reasonable expenses—including

attorney’s fees—incurred because of

any noncompliance with a scheduling

or other pretrial order unless the

noncompliance was substantially

justified or other circumstances make

an award of expenses unjust.

(2) Contents of the Order. The special

master’s order imposing fees and costs

must describe the noncompliance and

explain the basis for the imposition of

fees and costs. 

(3) Review. An order by a special master

imposing fees and costs will be

reviewable by an assigned judge on

motion by the noncompliant party or the

noncompliant 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; as

amended 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 conduct

informal status conferences on a periodic

basis. 

(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 and

most efficient way possible.

(As revised and reissued May 1, 2002; as

amended July 13, 2009.) 

Rule 7. Discovery

(a) In General. There is no discovery as a

matter of right. The informal and

cooperative exchange of information is the

ordinary and preferred practice.

(b) Formal Discovery. 

(1) By Motion. If a party believes that

informal discovery is not sufficient, the

party may move the special master,

either orally during a status conference

or by filing a motion, to employ any of

the discovery procedures set forth in

RCFC 26–37. 

(2) Contents of the Motion. The moving

party must indicate the discovery

sought and state with particularity the

reasons therefor, including an

explanation as to why informal

discovery techniques have not been

sufficient.

(c) Subpoena. On the request of a party, the

special master may approve the issuance of

a subpoena pursuant to RCFC 45. See

RCFC Appendix of Forms, Form 7A

(As revised and reissued May 1, 2002; as

amended July 13, 2009.)

Rule 8. Taking Evidence; Hearing Argument

(a) In General. The special master will

determine the format for taking evidence and

hearing argument based on the specific

circumstances of each case and after

consultation with the parties.

(b) Evidence. 

(1) Rules. In receiving evidence, the

special master will not be bound by

common law or statutory rules of

evidence but must consider all relevant

and reliable evidence governed by

principles of fundamental fairness to

both parties. 

(2) Form. The parties may present
Appendix B 124

evidence in the form of documents,

affidavits, or oral testimony which may

be given in person or by telephone,

videoconference, or videotape.

(c) Conducting an Evidentiary Hearing. 

(1) Purpose. The special master may

conduct an evidentiary hearing to

provide for the questioning of witnesses

either by the special master or by

counsel, or for the submission of sworn

testimony in written form. 

(2) Subpoenas. The special master may

order the clerk or counsel to issue a

subpoena requiring the attendance of a

witness at the hearing. 

(3) Transcript. A transcript of the hearing

will be prepared in conformity with

RCFC 80.1.

(d) Decision Without an Evidentiary Hearing.

The special master may decide a case on the

basis of written submissions without

conducting an evidentiary hearing.

Submissions may include a motion for

summary judgment, in which event the

procedures set forth in RCFC 56 will apply.

(e) Hearing Argument. The special master

may hear argument during a scheduled

telephone conference or a hearing, or

through written submissions. The special

master may establish requirements for any

written submissions, e.g., contents or page

limitations, as appropriate.

(f) Waiver of a Fact or Argument. 

(1) In General. Any fact or argument not

raised specifically in the record before

the special master will be considered

waived and cannot be raised by either

party in proceedings on review of a

special master’s decision. 

(2) Exception. This rule does not apply to

legal arguments raised by the party that

stands in the role of the appellee on

review.

(As revised and reissued May 1, 2002; as

amended July 13, 2009.)

Rule 9. Suspending Proceedings

(a) In General. On motion of a party and for

good cause shown, the special master may

suspend 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 30

days. 

(2) Subsequent Motions. The special

master may grant subsequent motions

for suspension, if deemed appropriate,

for not more than 150 additional days in

total.

(c) Effect. All periods of suspension will be

excluded for purposes of the time limitations

set 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; as

amended June 20, 2006, July 13, 2009.)

Rule 10. Decision of the Special Master

(a) In General. Pursuant to 42 U.S.C. § 300aa12(d)(3)(A), the special master will issue a

decision on the petition with respect to

whether an award of compensation is to be

made and, if so, the amount thereof. 

(b) Timing. The special master must issue a

decision on the petition within 240 days after

the date the petition was filed, exclusive of

all periods of suspension pursuant to

Vaccine Rule 9. 

(c) Effect. The special master’s decision

concludes the proceedings on the petition,

except for any ancillary proceedings

pursuant 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 within

the time specified in Vaccine Rule

10(b), the special master must file a

notice to petitioner pursuant to 42

U.S.C. § 300aa-12(g)(1). 

(2) Notice to Continue or to Withdraw the

Petition. Within 30 days after the date
125 Appendix B

of filing of the special master’s notice,

the petitioner may file a notice to

continue or to withdraw the petition

pursuant to 42 U.S.C. § 300aa-21(b). 

(3) Concluding Proceedings. If the

petitioner elects to withdraw the

petition, the special master must issue

an order concluding proceedings. The

special master’s order, upon entry, will

be deemed a judgment for purposes of

42 U.S.C. § 300aa-15(e)(1). 

(e) Motion for Reconsideration. 

(1) Initial Motion. Either party may file a

motion for reconsideration of the

special master’s decision within 21 days

after the issuance of the decision, if a

judgment has not been entered and no

motion for review under Vaccine

Rule 23 has been filed. 

(2) Response. The special master may seek

a response from the nonmoving party,

specifying both the method of and the

timing for the response. 

(3) Ruling on the Motion. The special

master has the discretion to grant or

deny the motion, in the interest of

justice. 

(A) If Granted. If the special master

g rants t he motion for

reconsideration, the special master

must file an order withdrawing the

challenged decision. The

decision, once withdrawn,

becomes void for all purposes and

the special master must

subsequently enter a superseding

decision. The special master may

not, however:

(i) issue an order withdrawing a

decision if either a judgment

has been entered or a motion

for review has been filed; or

(ii) issue a superseding decision

reaching a result different

from the original decision

without affording the

n onmoving party an

opportunity to respond to the

moving party’s arguments. 

(B) If Denied or Not Acted Upon. The

filing of a motion for

reconsideration will not toll the

30-day period for filing a motion

for review pursuant to Vaccine

Rule 23. If the special master

den i e s t h e motion for

reconsideration or fails to act upon

the motion, the 30-day period for

filing a motion for review will

continue to run and either party

may file a motion for review

before the expiration of that

period.

(As revised and reissued May 1, 2002; as

amended Aug. 2, 2005, July 13, 2009.) 

TITLE III. JUDGMENT AND FURTHER

PROCEEDINGS

Rule 11. Judgment

(a) In General. In the absence of a motion for

review under Vaccine Rule 23, the clerk will

enter judgment 30 days after either the filing

of the special master’s decision under

Vaccine Rule 10 or the entry of an order of

dismissal under Vaccine Rule 21(b). The

clerk may enter judgment prior to the

expiration of the 30-day period if each party

files a notice stating that the party will not

seek such review.

(b) Stipulation for Judgment. Any stipulation

for a money judgment must be signed by

authorized representatives of the Secretary of

Health and Human Services and the Attorney

General.

(As revised and reissued May 1, 2002; as

amended June 20, 2006, July 13, 2009.)

Rule 12. Election

(a) In General. Within 90 days after the entry
Appendix B 126

of judgment under Vaccine Rule 11,

petitioner must file with the clerk an election

either:

(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 time

prescribed, petitioner will be deemed to have

filed 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 for

damages may be accompanied by a

motion for the limited compensation

provided by 42 U.S.C. § 300aa-15(f)(2).

(2) Decision on the Motion. The clerk will

forward the motion to the special

master for a decision thereon. The

decision of the special master on the

motion constitutes a separate decision

for purposes of Vaccine Rules 11, 18,

and 23. 

(3) Waiver. If such a motion is not filed at

the time the election is filed, petitioner

will be deemed to have waived the

limited compensation. 

(As revised and reissued May 1, 2002; as

amended June 20, 2006, July 13, 2009.) 

Rule 13. Attorney’s Fees and Costs

(a) In General. Any request for attorney’s fees

and costs pursuant to 42 U.S.C. § 300aa15(e) must be filed no later than 180 days

after the entry of judgment or the filing of an

order concluding proceedings under Vaccine

Rule 10(d)(3) or 29. 

(b) Decision on the Motion. Except for a

request for fees and costs arising under

Vaccine Rule 34(b), the clerk will forward

the fee request to the special master for a

decision thereon. The decision of the special

master on the fee request—including a

request for interim fees—constitutes a

separate decision for purposes of Vaccine

Rules 11, 18, and 23.

(As revised and reissued May 1, 2002; as

amended Aug. 2, 2005, July 13, 2009.)

TITLE IV. GENERAL PROVISIONS

Rule 14. Attorneys

(a) Eligibility to Practice. 

(1) In General. An attorney is eligible to

practice before the Office of Special

Masters if the attorney is a member of

the bar of the United States Court of

Federal Claims under RCFC 83.1 and

complies with the Vaccine Rules. 

(2) Pro Se Litigants. An individual who is

not an attorney may represent oneself or

a member of one’s immediate family.

The terms counsel, attorney, or attorney

of record in the Vaccine Rules include

such 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 one

time and, with the exception of a pro se

litigant appearing under Vaccine Rule

14(a), must be represented by an

attorney (not a firm) admitted to

practice before the Court of Federal

Claims. Any attorney assisting the

attorney of record must be designated

“of counsel.” 

(2) Contact Information. The attorney of

record must include on all filings the

attorney’s name, address, telephone

number, and facsimile number and must

promptly file with the clerk and serve

on all other parties a notice of any

change in the attorney’s contact

information.

(3) Signing Filings. All filings must be

signed in the attorney of record’s name.

Any attorney who is admitted to

practice before the Court of Federal
127 Appendix B

Claims may sign a filing in the attorney

of record’s name by adding the

following after the name of the attorney

of record: “by [the signing attorney’s

full name].” 

(c) Substituting Counsel. A party may

substitute its attorney of record pursuant to

RCFC 83.1(c)(4).

(As revised and reissued May 1, 2002; as

amended July 13, 2009.)

Rule 15. Third Parties

No person may intervene in a vaccine injury

compensation proceeding, but the special master

may afford all interested individuals an

opportunity to submit relevant written information

within 60 days after publication of notice of the

petition in the Federal Register, or later with leave

of the special master.

(As revised and reissued May 1, 2002; as

amended July 13, 2009.)

Rule 16. Caption of Filings

All filings, including the petition, must be

captioned with the court’s name, the case title and

docket number, and the name of the assigned

special master. (The petition should leave blank

the spaces for the special master’s name and the

docket number.) See Appendix of Forms, Form 7.

(As revised and reissued May 1, 2002; as

amended July 13, 2009.)

Rule 17. Serving and Filing Papers After the

Petition

(a) Serving a Document. 

(1) In General. A copy of every document

filed with the clerk must be served on

opposing counsel or the opposing

unrepresented party. 

(2) Certificate of Service. A certificate of

service in accordance with RCFC 5.3

must be appended to the original

document and any copies thereof. 

(b) Filing a Document. 

(1) In General. All pleadings and other

papers required under the Vaccine

Rules or by order of the special master

or the court must be filed with the clerk

at the address provided in Vaccine

Rule 2. All matters should be brought

to the attention of the special master or

the court through formal filings with the

c l e r k ra t h e r th a n t h r o u g h

correspondence.

(2) Filing Defined. 

(A) Paper Form. A document in

paper form is filed when it is

received and marked filed by the

clerk, not when mailed. 

(B) Electronic Form. A document in

electronic form is filed on the date

stated in the “Notice of Electronic

Filing.” 

(c) Date. Each filing must bear on the signature

page the date on which it is signed. 

(d) Number of Copies. A party must file an

original and 2 copies of each paper filed with

the clerk, except that for a filing of 50 pages

or more, an original and 1 copy will suffice.

(As revised and reissued May 1, 2002; as

amended July 13, 2009.)

Rule 18. Availability of Filings

(a) In General. All filings with the clerk

pursuant to the Vaccine Rules are to be made

available only to the special master, the

judge, and the parties, with the exception of

certain court-produced documents as set

forth in subdivision (b) of this rule. A

transcript prepared pursuant to Vaccine Rule

8(c) constitutes a filing for purposes of this

rule.

(b) Decision of the Special Master or Judge.

A decision of the special master or judge

will be held for 14 days to afford each party

an opportunity to object to the public

disclosure of any information furnished by

that party:
Appendix B 128

(1) that is a trade secret or commercial or

financial in substance and is privileged

or confidential; or 

(2) that includes medical files or similar

files, the disclosure of which would

constitute a clearly unwarranted

invasion of privacy.

An objecting party must provide the court

with a proposed redacted version of the

decision. In the absence of an objection, the

entire decision will be made public.

(As revised and reissued May 1, 2002; as

amended July 13, 2009.)

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 special

master or the court, or in any applicable

statute that does not specify a method of

computing time. 

(1) Period Stated in Days or a Longer

Unit. When the period is stated in days

or 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 legal

holidays, 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, the

period continues to run until the

end of the next day that is not a

Saturday, Sunday, or legal

holiday. 

(2) Period Stated in Hours. When the

period is stated in hours:

(A) begin counting immediately on the

occurrence of the event that

triggers the period;

(B) count every hour, including hours

during intermediate Saturdays,

Sundays, and legal holidays; and

(C) if the period would end on a

Saturday, Sunday, or legal

holiday, the period continues to

run until the same time on the next

day that is not a Saturday, Sunday,

or legal holiday.

(3) Inaccessibility of the Clerk’s Office.

Unless the court orders otherwise, if the

clerk’s office is inaccessible: 

(A) on the last day for filing under

Vaccine Rule 19(a)(1), then the

time for filing is extended to the

first accessible day that is not a

Saturday, Sunday, or legal

holiday; or

(B) during the last hour for filing

under Vaccine Rule 19(a)(2), then

the time for filing is extended to

the same time on the first

accessible day that is not a

Saturday, Sunday, or legal

holiday.

(4) “Last Day” Defined. Unless a different

time 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 to

close, subject to the provision for

after-hours filing permitted under

RCFC 77.1(a).

(5) “Next Day” Defined. The “next day”

is determined by continuing to count

forward when the period is measured

after an event and backward when

measured before an event.

(b) Extending Time. 

(1) In General. The special master or the

court may grant a motion for an

enlargement of time for good cause

shown except when such an extension

is prohibited by these rules. 

(2) Contents of a Motion for Enlargement.

A motion for an enlargement of time

must set forth: 
129 Appendix B

(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 for

enlargement; and 

(D) the reason for the enlargement. 

(3) Communication With Opposing

Counsel. Prior to filing a motion for

enlargement, the moving party must

make a reasonable effort to discuss the

motion with opposing counsel and must

indicate in the motion whether an

opposition will be filed, or, if opposing

counsel cannot be consulted, an

explanation of the efforts that were

made to do so.

(c) Additional Time After Service By Mail.

When a party may or must act within a

specified time after service and service is

made by mail, 3 days are added to the

prescribed period, unless the special master

or the court orders otherwise. 

(As revised and reissued May 1, 2002; as

amended Jan. 11, 2010.)

Rule 20. Motions and Other Papers; Time for

Filing; 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 a

proposed order and any motion, objection, or

response may be accompanied by a

memorandum and, if necessary, by

supporting affidavits or exhibits. 

(b) Time for Filing. 

(1) Responses and Objections. Unless

otherwise provided in these rules or by

order of the special master or the court,

a response or an objection to a written

motion must be filed within 14 days

after service of the motion. 

(2) Replies. A reply to a response or an

objection may be filed within 7 days

after service of the response or

objection.

(c) Oral Argument. A party desiring oral

argument on a motion must so request in the

motion or response.

(As revised and reissued May 1, 2002; as

amended July 13, 2009.) 

Rule 21. Dismissal of Petitions

(a) Voluntary Dismissal. 

(1) In General. Petitioner may dismiss the

petition without order of the special

master or the court by filing:

(A) a notice of dismissal at any time

before service of respondent’s

report; or

(B) a stipulation of dismissal signed

by all parties who have appeared

in the action.

(2) Effect. Unless the notice or stipulation

states otherwise, the dismissal is

without prejudice, except that a notice

of dismissal may, in the discretion of

the special master or the court, be

deemed to operate as an adjudication on

the merits if filed by a petitioner who

has previously dismissed the same

claim. 

(3) Concluding Proceedings. A petition

dismissed under this subdivision (a)

will not result in a judgment pursuant to

Vaccine Rule 11 for purposes of

42 U.S.C. § 300aa-21(a). For the

court’s administrative purposes, the

special master will instead issue an

order concluding proceedings.

(b) Involuntary Dismissal. 

(1) In General. The special master or the

court may dismiss a petition or any

claim therein for failure of the

petitioner to prosecute or comply with
Appendix B 130

these rules or any order of the special

master or the court. 

(2) Effect. A petition dismissed under this

subdivision (b) will result in a judgment

pursuant to Vaccine Rule 11 for

purposes of 42 U.S.C. § 300aa-21(a).

(As revised and reissued May 1, 2002; as

amended Aug. 2, 2005, June 20, 2006, July 13,

2009.)

TITLE V. REVIEW OF A DECISION OF

THE SPECIAL MASTER

Rule 22. General [Abrogated (eff. Jan. 2, 2001);

abrogation published as part of

revisions 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 motion

for review with the clerk within 30 days after

the date the decision is filed. 

(b) Time Extensions. No extensions of time

will be permitted under this rule and the

failure of a party to file a motion for review

in a timely manner will constitute a waiver

of the right to obtain review.

(As revised and reissued May 1, 2002; as

amended July 13, 2009.)

Rule 24. Memorandum of Objections

(a) In General. A motion for review must be

accompanied by a memorandum of

numbered objections to the decision. 

(b) Contents of the Memorandum. The

memorandum must:

(1) fully and specifically state and support

each objection to the decision,

including specific citations to the record

created by the special master (e.g., to

specific page numbers of the transcript,

exhibits, or other papers);

(2) set forth any legal argument the party

desires to present to the reviewing

judge; and 

(3) absent leave of the court, be limited to

20 pages and conform to the provisions

of RCFC 5.4.

(As revised and reissued May 1, 2002; as

amended July 13, 2009.)

Rule 25. Response

(a) In General. A party may file a response to

a motion for review within 30 days after the

filing of the motion. If both parties file

motions for review, each party may file a

response to the other party’s motion. The

response must:

(1) be in memorandum form and fully

respond to each numbered objection,

including specific citations to the record

created by the special master (e.g., to

specific page numbers of the transcript,

exhibits, or other papers);

(2) set forth any legal argument the party

desires to present to the reviewing

judge; and

(3) absent leave of the court, be limited to

20 pages and conform to the provisions

of RCFC 5.4.

(b) Time Extensions. No extensions of time

will be permitted under this rule and the

failure of a party to file a response in a

timely manner will constitute a waiver of the

right to respond. 

(As revised and reissued May 1, 2002; as

amended July 13, 2009.)

Rule 26. Assigning a Case for Review

After a motion for review has been filed with the

clerk, the case will be assigned to a judge of the

Court of Federal Claims pursuant to RCFC 40.1.

(As revised and reissued May 1, 2002; as

amended July 13, 2009.)

Rule 27. Reviewing a Decision of the Special
131 Appendix B

Master

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’s

decision;

(b) set aside any findings of fact or conclusions

of law found to be arbitrary, capricious, an

abuse of discretion, or otherwise not in

accordance with law and issue a separate

decision; or

(c) remand the case to the special master for

further action as directed. 

(As revised and reissued May 1, 2002; as

amended July 13, 2009.)

Rule 28. Time for Review

(a) In General. The assigned judge must

complete the review within 120 days after

the last date for the filing of a response under

Vaccine Rule 25, excluding any days the

case is before a special master on remand. 

(b) Period of Remand. If the judge remands

the case to the special master, the total

period of remand must not exceed 90 days. 

(As revised and reissued May 1, 2002; as

amended July 13, 2009.)

Rule 28.1 Decision on Remand

(a) In General. If the assigned judge remands

the case to the special master, the special

master, after completing the remand

assignment, must file a decision on remand

resolving the case, unless the remand order

directs otherwise. The clerk must promptly

notify the assigned judge of the filing of the

decision on remand. 

(b) Effect. Unless otherwise specified in the

remand order, the decision on remand

constitutes a separate decision for purposes

of Vaccine Rules 11, 18, and 23, i.e.,

judgment automatically will be entered in

conformance with the special master’s

decision on remand unless a new motion for

review is filed pursuant to Vaccine Rule 23.

(c) Motion for Review. If a party seeks review

of the decision on remand, the clerk will

assign the case to the same judge who

remanded the case.

(As revised and reissued May 1, 2002; as

amended July 13, 2009.)

Rule 29. Withdrawing a Petition

(a) Notice to Petitioner. If the assigned judge

fails to enter judgment within 420 days after

the date the petition was filed, exclusive of

any periods of remand or suspension

pursuant to Vaccine Rule 9, the judge must

file a notice to petitioner pursuant to

42 U.S.C. § 300aa-12(g)(2). 

(b) Notice to Continue or to Withdraw the

Petition. Within 30 days after the date of

filing of the assigned judge’s notice, the

petitioner may file a notice to continue or to

withdraw the petition pursuant to 42 U.S.C.

§ 300aa-21(b). 

(c) Concluding Proceedings. If the petitioner

elects to withdraw the petition, the assigned

judge must issue an order concluding

proceedings. The judge’s order, upon entry,

will be deemed a judgment for purposes of

42 U.S.C. § 300aa-15(e)(1). 

(As revised and reissued May 1, 2002; as

amended Aug. 2, 2005, July 13, 2009.) 

Rule 30. Judgment

(a) In General. Upon issuance of the assigned

judge’s decision on review, the clerk will

enter judgment in accordance with the

decision. 

(b) Stipulation for Judgment. Any stipulation

for a money judgment must be signed by

authorized representatives of the Secretary of

Health and Human Services and the Attorney

General. 

(As revised and reissued May 1, 2002; as

amended July 13, 2009.)
Appendix B 132

Rule 31. Motion for Reconsideration

Within 30 days after entry of judgment, either

party may file a motion for reconsideration of the

assigned judge’s decision in accordance with

RCFC 59. 

(As revised and reissued May 1, 2002; as

amended Jan. 11, 2010.)

Rule 32. Notice of Appeal

To appeal a decision of the Court of Federal

Claims, a party must file a notice of appeal with

the clerk of the United States Court of Appeals for

the Federal Circuit (i.e., a petition for review

under 42 U.S.C. § 300aa-12(f)) within 60 days

after the date of the entry of judgment.

(As revised and reissued May 1, 2002; as

amended July 13, 2009.)

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 election

as described in Vaccine Rule 12. 

(b) Exception. If an appeal is filed with the

United States Court of Appeals for the

Federal Circuit pursuant to Vaccine Rule 32,

the 90-day period for filing an election will

run not from the original date of judgment

but from the date of the appellate court’s

mandate or any subsequent judgment of the

Court of Federal Claims on remand,

whichever occurs later.

(As revised and reissued May 1, 2002; as

amended July 13, 2009.)

Rule 34. Attorney’s Fees and Costs Following

Review

(a) In General. Except as provided in

subdivision (b) of this rule, any request for

attorney’s fees and costs following review by

an assigned judge must be filed in

accordance with Vaccine Rule 13. 

(b) Additional Fees and Costs. Following

review by an assigned judge of a special

master’s decision on attorney’s fees and

costs under Vaccine Rule 13, a request for

any additional fees and costs relating to such

review may be decided either by the assigned

judge or by the special master on remand. 

(As revised and reissued May 1, 2002; as

amended July 13, 2009. )

Rule 35. Availability of Filings [Abrogated

(eff. Jan. 2, 2001); abrogation

published as part of revisions dated

May 1, 2002.]

TITLE VI. RELIEF FROM JUDGMENT

Rule 36. Relief from a Judgment

(a) In General. If, after the entry of judgment

or the issuance of an order concluding

proceedings pursuant to Vaccine Rule 10,

21, or 29, a party files a motion for

reconsideration pursuant to RCFC 59 or

otherwise seeks relief from a judgment or

order pursuant to RCFC 60, the clerk will

refer the motion as follows: 

(1) If the petition had previously been

assigned to a judge for review pursuant

to Vaccine Rule 23, the clerk will refer

the motion to the assigned judge. 

(2) If the petition had not previously been

assigned to a judge for review pursuant

to Vaccine Rule 23, the clerk will refer

the motion to the assigned special

master. 

(b) Ruling by the Special Master. 

(1) In General. If a motion pursuant to

RCFC 59 or 60 is referred to the special

master pursuant to subdivision (a) of

this rule, the special master must file a

written ruling on the motion. 

(2) Effect. The ruling of the special master

will be the final ruling of the court on

the motion, unless a party files with the

clerk a motion for review of that ruling.
133 Appendix B

(3) Motion for Review. A party may file a

motion for review of the special

master’s ruling, accompanied by a

memorandum of objections to the

ruling, within 30 days after the date of

the ruling. See Vaccine Rules 23 and

24. 

(4) Response. The nonmoving party may

file a response to a motion for review

within 30 days after the filing of the

motion. See Vaccine Rule 25. 

(5) Length. The motion and response of

each party must, absent leave of the

court, be limited to 20 pages and must

conform to the provisions of RCFC 5.4.

See Vaccine Rules 24 and 25. 

(6) Assigning the Case for Review. If a

motion for review is filed with the

clerk, the case will be assigned to a

judge of the Court of Federal Claims

pursuant to RCFC 40.1. See Vaccine

Rule 26. 

(7) Reviewing the Ruling of the Special

Master. After reviewing the ruling of

the special master, the assigned judge

may set aside the ruling only if it is

found to be arbitrary, capricious, an

abuse of discretion, or otherwise not in

accordance with law. See Vaccine Rule

27. 

(c) If Judgment is Altered. If the original

judgment is modified pursuant to RCFC 59

or 60 or otherwise, and the petitioner is to

receive any award for damages calculated

with respect to the date of judgment, such

damages must be calculated based on the

date of the original judgment, unless the

ruling of the special master or the court

directs otherwise.

(As revised and reissued May 1, 2002; as

amended July 13, 2009.)

Rules Committee Notes

2002 Revision

Appendix B sets forth rules applicable to

proceedings involving claims for compensation

under the National Childhood Vaccine Injury Act,

42 U.S.C. §§ 300aa-1 to -34. These rules

originally became effective on January 25, 1989,

and were revised on March 15, 1991, and May 1,

2002. The text of these rules as originally

promulgated may be found at 16 Cl. Ct. XXI–LXI

(1989) and, as initially revised, at 22 Cl. Ct.

CXLVIII–CLX (1991). 

2003 Amendment

Vaccine Rule 2(c)(1) has been amended to

require that service upon the respondent be

directed to the Director, Division of Vaccine

Injury Compensation, Office of Special Programs,

Health Resources and Services Administration, in

lieu of the Director, Bureau of Health

Professionals. 

2005 Amendment

Both stylistic and substantive changes have

been made to the Vaccine Rules. The substantive

changes are identified below. 

Rule 2. Subdivision (b) previously listed the

amount of the filing fee that was required to

accompany a petition. The listing of the fee

amount has been eliminated in favor of referring

petitioners to the fee schedule posted on the

court’s website. This change is administrative

only and is intended to permit future changes in

fee amount to be implemented without the

necessity for publication of a corresponding

change in rule. Subdivision (c)(1) has been

amended to show the current address for service

upon respondent. 

Rule 4. Subdivision (b), titled “Early Status

Conference,” has been added to acknowledge the

authority of a special master, exercisable at the

special master’s discretion, to convene an early

status conference as an aid in the identification

and scheduling of further proceedings. 

Rule 10. The text of subdivision (a) has

been amended to identify the alternative

procedures a petitioner may elect to

adopt—withdrawal of the petition or continuance
Appendix B 134

of proceedings—following the special master’s

issuance of a notice under 42 U.S.C. § 300aa12(g)(1) advising that a decision on the petition

will not be entered within the prescribed statutory

period (240 days, exclusive of periods of

suspension and remand). Subdivision (a) further

provides that in instances where the petitioner

elects to withdraw the petition in lieu of

continuing proceedings, the conclusion of

proceedings will be identified by the special

master’s issuance of an order so indicating.

Finally, the subdivision specifies that upon entry

of the special master’s order, such order shall be

deemed a judgment for purposes of 42 U.S.C.

§ 300aa-15(e)(1). Subdivision (b), which dealt

with vaccines administered prior to October 1,

1988, has been abrogated as being no longer

necessary. Subdivision (c), titled

“Reconsideration,” has been amended to indicate

that where the special master elects to grant a

motion for reconsideration, the special master

shall not issue a superseding decision reaching a

different result from the original decision without

affording the non-moving party an opportunity to

respond to the arguments raised in the motion for

reconsideration. 

Rule 13. This rule has been amended to

recognize that the right to seek recovery of

attorneys’ fees and costs under 42 U.S.C. § 300aa15(e) extends not only to cases in which a

judgment has been entered but also to cases in

which a petitioner exercises the statutory right to

withdraw a petition following the issuance of an

order concluding proceedings under Vaccine Rule

10(a) or 29. 

Rule 21. Under the Vaccine Act, the court

enters judgment pursuant to a “decision of the

special master,” i.e., a determination “with respect

to whether compensation is to be provided under

the Program and the amount of such

compensation.” 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 to

clarify that where a petition is voluntarily

dismissed without order of the special master or

the court (either by the filing of a notice of

dismissal before service of respondent’s report or

pursuant to a stipulation of the parties) then, for

administrative purposes, the conclusion of

proceedings will be identified by an order of the

special master rather than by a decision.

Correspondingly, language has also been added to

subdivisions (b) and (c) to clarify that an

involuntary dismissal operates as an adjudication

on the merits with respect to which a judgment

will be entered. 

Rule 29. The opening sentence of this rule

has been amended to identify the procedural

requirement that applies in cases where a judge

fails to direct entry of judgment within 420 days

after the date of filing of the petition (“the judge

shall file the notice required by 42 U.S.C.

§ 300aa-12(g)(2)”). Additionally, a final sentence

has been added to clarify that where a petitioner

elects to withdraw a petition following the receipt

of the notice required by 42 U.S.C. § 300aa12(g)(2), the conclusion of proceedings will be

identified by the judge’s issuance of an order

rather than by a judgment. The same sentence

further notes that upon entry, such order shall be

deemed a judgment for purposes of 42 U.S.C. §

300aa-15(e)(1). 

2006 Amendment

Rule 21. Former subdivision (b) (“Failure to

Prosecute or Participate”) has been stricken as its

provisions were either redundant or unnecessary.

The substance of the first and second sentences of

that former subdivision is set forth in the text of

former subdivision (c) (“Involuntary Dismissal;

Effect Thereof”), now renumbered as subdivision

(b). The third sentence of former subdivision (b)

was unnecessary; to obtain compensation, the

statute provides that a petitioner must supply

evidence establishing his or her entitlement to

same, regardless of whether the respondent

participates. The renumbering of subdivision (c)

is also reflected in corresponding changes to the

text of Vaccine Rules 11(a) and 12(a). 

2009 Amendment
135 Appendix B

The language of the Vaccine Rules has been

amended to conformto the general restyling of the

RCFC. 

Rule 13. Subdivision (b) has been modified

in two respects. First, the introductory phrase

“Except for a request for fees and costs arising

under Vaccine Rule 34(b)” was added to reflect

the corresponding procedural change in Vaccine

Rule 34(b) regarding a request for additional fees

and costs. Second, the phrase “including a request

for interimfees” was added to the second sentence

to reflect the result in Avera v. Secretary of Health

and Human Services, 515 F.3d 1343 (Fed. Cir.

2008). 

Rule 17. Paragraph (b)(2) (“Filing

Defined”) has been expanded to include electronic

filings. 

Rule 34. Subdivision (b) has been added to

this rule to clarify that a request for additional

attorney’s fees and costs incurred on a petition for

review of a special master’s decision addressing

attorney’s fees and costs may be decided either by

the assigned judge or by the special master on

remand. 

Rule 36. The phrase “or the issuance of an

order concluding proceedings pursuant to Vaccine

Rule 20, 21, or 29" has been added to the opening

sentence of subdivision (a) to extend the remedies

available under RCFC 59 (“New Trial;

Reconsideration; Altering or Amending a

Judgment”) and RCFC 60 (“Relief From a

Judgment or Order”) to cases concluded by means

other than a judgment. 

2010 Amendments

Rule 5. Subdivision (c) (“Imposing Fees and

Costs”) has been added to reinforce the special

master’s case management authority. The rule

permits a special master to order, as authorized by

RCFC 16(f)(2), the payment of “reasonable

expenses—including attorney’s fees—incurred

because of any noncompliance with a scheduling

or any other pretrial order.” The exercise of this

authority is subject to the requirement that the

order describe the noncompliant conduct and

explain the basis for the imposition of fees and

costs.

Rule 19. Subdivision (a) (“Computing

Time”) has been amended in accordance with the

corresponding changes to RCFC 6.

Rule 31. The time period for filing a motion

for reconsideration has been changed from 10 to

30 days in accordance with the corresponding

change to RCFC 59.
Appendix C 136

APPENDIX C

PROCEDURE IN PROCUREMENT PROTEST CASES

PURSUANT TO 28 U.S.C. § 1491(b)

I. INTRODUCTION

1. This Appendix describes standard

practices in protest cases filed pursuant to 28

U.S.C. § 1491(b) and supplements the Rules of the

United States Court of Federal Claims, which are

otherwise fully applicable to these cases.

II. REQUIREMENT FOR

PRE-FILING NOTIFICATION

2. In order to expedite proceedings,

plaintiff’s counsel must (except in exceptional

circumstances to be described in moving papers)

provide at least 24-hour advance notice of filing a

protest case to: 

(a) the Department of Justice,

Commercial Litigation Branch, Civil

Division;

(b) the Clerk, United States Court of

Federal Claims;

(c) the procuring agency’s contracting

officer by facsimile transmission only; and

(d) the apparently successful

bidder/offeror (in cases where there has been

an award and plaintiff has received notice of

the identity of the awardee).

Such notice must be provided by e-mail or by

facsimile transmission during conventional

business hours. (The contactsfor the clerk of court

and the Department of Justice are posted on the

court’s website—http://www.uscfc.uscourts.gov.)

The pre-filing notice is intended to permit the

Department of Justice to assign an attorney to the

case who can address relevant issues on a timely

basis and to permit the court to ensure the

availability of appropriate court resources. Failure

to provide pre-filing notification will not preclude

the filing of the case but is likely to delay the

initial processing of the case, including the

scheduling of the initial status conference. See

paragraph 8, below. Plaintiff’s counsel must

apprise the above entities of any material change in

respect to the timing of or the intent to file a

protest. Plaintiff is encouraged to provide earlier

notice if possible as a courtesy to the court and to

government counsel.

3. The pre-filing notice must include the

following information:

(a) the name of the procuring agency

and the number of the solicitation in the

contested procurement;

(b) the name and telephone number of

the contracting officer responsible for the

procurement;

(c) the name and telephone number of

the principal agency attorney, if known, who

represented the agency in any prior protest of

the same procurement;

(d) whether plaintiff contemplates

requesting temporary or preliminary

injunctive relief pursuant to RCFC 65;

(e) whether plaintiff has discussed the

need for temporary or preliminary injunctive

relief with Department of Justice counsel and

the response, if any;

(f) whether the action was preceded by

the filing of a protest before the Government

Accountability Office (GAO) and if so, the

“B-” number of the protest and whether a

decision was issued; and

(g) whether plaintiff contemplates the

need for the court to enter a protective order.

III. FILING UNDER SEAL

4. In the event plaintiff believes its complaint,

or any related material filed at the same time,

contains confidential or proprietary information

and plaintiff seeks to protect that information from

public scrutiny, plaintiff must file a motion

together with the complaint for leave to file the

complaint under seal. When a complaint or any

related material is filed with an accompanying

motion for leave to file under seal, the complaint or
137 Appendix C

related material will be treated as though filed

under seal while the motion is pending.

5. When filing documents under seal, a party

must follow the procedures described in RCFC

5.5(d).

6. A complaint or any related material filed

together with the complaint that is to be filed under

seal must be marked or highlighted in such a way

that confidential or proprietary information is

indicated and must be accompanied by a redacted

version of the pleading (i.e., a version that omits

confidential or proprietary information), which

will be available to the public. Failure to file a

redacted copy may result in denial of the motion

for leave to file under seal.

7. To the extent the complaint or any related

material filed together with the complaint contains

classified information, the filing must conform to

the requirements of the classifying agency.

IV. INITIAL STATUS CONFERENCE

8. The court will schedule an initial status

conference with the parties to address relevant

issues including, but not limited to, the following:

(a) identification of interested parties;

(b) admission of any successful offeror

as an intervenor;

(c) any request for temporary or

preliminary injunctive relief (see paragraph

15, below);

(d) the content of a protective order, if

requested by one or more of the parties, and

the requirement for redacted copies;

(e) the content of and time for filing the

administrative record;

(f) whether it may be appropriate to

supplement the administrative record; and

(g) the nature of and schedule for further

proceedings.

This initial status conference will be held as soon

as practicable after the filing of the complaint.

V. INJUNCTIVE RELIEF

9. The court’s practice is to expedite protest

cases to the extent practicable and to conduct

hearings on motions for preliminary injunctions at

the earliest practicable time. Accordingly, when a

plaintiff seeks a preliminary injunction, it may not

need to request a temporary restraining order.

10. An application for a temporary restraining

order and/or preliminary injunction must be filed

together with the complaint with the clerk, unless

the complaint has been previously filed. The

application must be accompanied by affidavits,

supporting memoranda, and any other documents

upon which plaintiff intends to rely. The

application also must be accompanied by a

statement that plaintiff’s counsel has provided, by

hand delivery, overnight mail, or electronic means,

copies of the foregoing documents to the

Department of Justice, Commercial Litigation

Branch, 8th Floor, 1100 L St. NW, Washington,

DC 20530.

11. If the name of the apparently successful

bidder/offeror is known (in cases where there has

been an award and plaintiff has received notice of

the identity of the awardee), plaintiff must state in

the application that copies of the foregoing

documents have been provided, by hand delivery,

overnight mail, or electronic means, to the

apparently successful bidder/offeror. If the name

of the awardee is unknown, plaintiff must so state.

12. The apparently successful bidder/offeror

may enter a notice of appearance at any hearing on

the application for a temporary restraining

order/preliminary injunction if it advises the court

of its intention to move to intervene pursuant to

RCFC 24(a)(2) or has moved to intervene before

the hearing.

13. The clerk will promptly informthe parties

of the judge to whom the case has been assigned

and the time and place of any hearing.

14. Except in an emergency, the court will not

consider ex parte applications for a temporary

restraining order.

15. In cases in which plaintiff seeks

temporary or preliminary injunctive relief, counsel

must be prepared to discuss the following matters

at the initial status conference:

(a) whether and to what extent, absent
Appendix C 138

temporary or preliminary injunctive relief, the

court’s ability to afford effective final relief is

likely to be prejudiced;

(b) whether plaintiff has discussed any

request it has made for a temporary

restraining order in advance with Department

of Justice counsel and, if so, defendant’s

response;

(c) whether the government will agree

to withhold award or suspend performance

pending a hearing on the motion for

preliminary injunction;

(d) whether the government will agree to

withhold award or suspend performance

pending a final decision on the merits;

(e) an appropriate schedule for

completion of the briefing on any motion for

a preliminary injunction;

(f) the security requirements of RCFC

65(c) (See Appendix of Forms, Forms

11–13); and

(g) whether the hearing on the

preliminary injunction should be consolidated

with a final hearing on the merits. 

VI. PROTECTIVE ORDERS

16. Preliminary Matters.

(a) The principal vehicle relied upon by the

court to ensure protection of sensitive information

is the protective order. The protective order

defines the procedures to be followed to identify

protected information, to prepare redacted versions

of such information, and to dispose of protected

information at the conclusion of the case.

(b) Information a party identifies as protected

may be disclosed only to the court and to

individuals who have been admitted to the

protective order.

(c) Once a protective order is issued by the

court, individuals who seek access to protected

information must file an appropriate application. If

admitted to the protective order, an individual

becomes subject to the terms of the order. It is the

responsibility of those admitted to the protective

order to take the necessary steps to ensure that the

information is protected, consistent with the terms

of the protective order, while it is under their

control (including oversight of support personnel

who may have access to protected information).

(d) Court, procuring agency, and Department

of Justice personnel are automatically admitted to

protective orders when issued and are subject to

their terms.

17. Issuance of a Protective Order.

(a) Motions for protective orders must meet

the requirements of RCFC 10. The court may

issue a protective order at its discretion.

(b) A sample protective order is found at

Appendix of Forms, Form 8. The parties are

cautioned that individual judges and the parties

themselves may want to amend the sample

protective order to meet the needs of a specific

case or their individual preferences. The specific

protective order issued in a case governs the

treatment of protected information in that case.

18. Application for Admission to the

Protective Order.

(a) Each party seeking access to protected

information on behalf of an individual must file

with the court an appropriate “Application for

Access to Information Under Protective Order”

(see Appendix of Forms, Forms 9 and 10). The

application may also be amended by the court in

response to individual case needs.

(b) Objections to an application for access

must be filed with the court within 2 days after a

party’s receipt of the application.

(c) In considering objections to an application

for access, the court will consider such factors as

the nature and sensitivity of the information at

issue, the party’s need for access to the information

in order to effectively represent its position, the

overall number of applications received, and any

other concerns that may affect the risk of

inadvertent disclosure.

(d) If the court receives objections to an

application, access will only be granted by court

order. 

19. Designation of Protected Information

and Preparation of Redacted Pleadings.

After a protective order is entered, the
139 Appendix C

designation of protected information and the

preparation and filing of redacted documents will

be governed by the terms of the protective order.

20. Disposition of Material Containing

Protected Information. 

The specific procedures to be followed in

disposing of protected information at the

conclusion of the case will be as described in the

protective order.

VII. THE CONTENT AND FILING OF THE

ADMINISTRATIVE RECORD

21. The United States will be required to

identify and provide (or make available for

inspection) the administrative record in a protest

case by the date(s) established at the initial status

conference. The filing of all or a part of the

administrative record must be accompanied by a

Notice of Filing.

22. Early production of relevant core

documents may expedite final resolution of the

case. The core documents relevant to a protest

case may include, as appropriate,

(a) the agency’s procurement request,

purchase request, or statement of

requirements;

(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 the

procurement;

(e) the solicitation, including any

instructions to offerors, evaluation factors,

solicitation amendments, and requests for best

and final offers;

(f) documents and information provided

to bidders during any pre-bid or pre-proposal

conference;

(g) the agency’s responses to any

questions 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 interested

parties relating to the procurement;

(j) records of any discussions, meetings,

or telephone conferences between the agency

and the protester, awardee, or other interested

parties relating to the procurement;

(k) records of the results of any bid

opening or oral motion auction in which the

protester, awardee, or other interested parties

participated;

(l) the protester’s, awardee’s, or other

interested parties’ offers, proposals, or other

responses to the solicitation;

(m) the agency’s competitive range

determination, including supporting

documentation;

(n) the agency’s evaluations of the

protester’s, awardee’s, or other interested

parties’ offers, proposals, or other responses

to the solicitation, including supporting

documentation;

(o) the agency’s source selection

decisi o n , i ncluding sup porting

documentation;

(p) pre-award audits, if any, or surveys

of the offerors;

(q) notification of contract award and

the executed contract;

(r) documents relating to any pre- or

post-award debriefing;

(s) documents relating to any stay,

suspension, or termination of award or

performance pending resolution of the bid

protest;

(t) justifications, approvals,

determinations, and findings, if any, prepared

for the procurement by the agency pursuant to

statute or regulation; and

(u) the record of any previous

administrative or judicial proceedings relating

to the procurement, including the record of

any other protest of the procurement.

23. Because a protest case cannot be

efficiently processed until production of the

administrative record, the court expects the United

States to produce the core documents and the

remainder of the administrative record as promptly
Appendix C 140

as circumstances will permit. (See RCFC 5.5(d)

which is applicable to administrative records,

unless waived by the court.) Materials that

otherwise qualify as part of the administrative

record may not be excluded from the record merely

because they are available in electronic form only.

24. Any additional documents within the

administrative record must be produced at such

time as may be agreed to by the parties or ordered

by the court.

VIII. ADMISSION OF COUNSEL

25. In procurement protest cases in which

plaintiff’s counsel is not a member of the bar of the

court and does not have sufficient time to gain

admission prior to the filing of the action, the clerk

will accept for filing any proper complaint and

accompanying pleadings under 28 U.S.C. §

1491(b) from such counsel, conditioned upon

counsel’s prompt pursuit of admission to practice

before the United States Court of Federal Claims

pursuant to RCFC 83.1. Failure to pursue such

admission within 30 days after the initiation of the

action may result in dismissal of the action and

possible referral for disciplinary action. 

Rules Committee Notes

2002 Revision

This appendix sets forth the procedures

applicable to the court’s procurement protest

jurisdiction. In the main, these procedures reflect

those that formerly appeared as General Order

No. 38, issued on May 7, 1998. In addition,

however, Appendix C now incorporates—in

paragraphs 10 through 14—those provisions of

former RCFC 65(f) (titled “Procedures”) which

enumerated requirements particular to applications

for temporary restraining orders and/or motions for

preliminary injunction.

Papers and exhibits are often filed under seal

in procurement protests. Procedures for unsealing

are addressed at RCFC 77.3(d). The standards for

granting access to protected information are

addressed in decisions such as U.S. Steel Corp. v.

United States, 730 F.2d 1465 (Fed. Cir. 1984), and

Matsushita Elec. Indus. Co. v. United States, 929

F.2d 1577 (Fed. Cir. 1991). 

2005 Amendment

Paragraphs 16(a) and 20 of this appendix

address the disposition of material containing

protected information after a case has been

concluded. Both paragraphs contemplate that a

protective order entered in a case involving

protected information will set out the obligations

of the parties in this regard. Form 8 in the

Appendix of Forms, the sample protective order

suggested for use in procurement protest cases, has

been modified to include a new paragraph 8 which

concerns the court’s retention and disposition of

protected materials filed by the parties. The new

paragraph provides that the original version of the

administrative record and any other materials filed

under seal in such a case will be retained by the

court pursuant to RCFC 77.3(d). Copies of such

materials filed with the court in addition to the

original version may be returned by the court to the

parties for appropriate disposition. In a particular

case, the parties may propose to the court that other

provisions be substituted for this portion of the

model protective order. 

2007 Amendment

Paragraph 18(a) has been reworded and

paragraph 18(b) has been deleted as unnecessary.

In addition, paragraph 18(e) has been amended to

clarify that issuance of a court order granting

access to protected information is required only in

those cases where objections to the application

have been raised. This clarification confirms the

practice spelled out in the court’s sample

protective order (Appendix of Forms, Form 8).

Finally, minor changes (primarily grammatical)

have been introduced throughout the Appendix.
141 Appendix D

APPENDIX D

PROCEDURE IN CONGRESSIONAL REFERENCE CASES

1. Purpose. The Federal Courts

Improvement Act of 1982 amended 28 U.S.C.

§§1492 and 2509 to authorize either house of

Congress to refer bills to the chief judge of the

United States Court of Federal Claims for

investigation and report to the appropriate house.

Procedures promulgated by the chief judge

applicable to such congressional reference cases

are specified herein. The RCFC, to the extent

feasible, are to be applied in congressional

reference cases.

2. Service of Notice. Upon referral of a bill

to the chief judge by either house of Congress, the

clerk shall docket the reference and serve a notice,

as provided in RCFC 5, on each person whose

name and address is shown by the papers

transmitted and who appears to have an interest in

the subject matter ofthe reference. The notice shall

set forth the filing of the reference and state that

the person notified appears to have an interest

therein and that such person shall have 90 days

within which to file a complaint. The clerk shall

forward a copy of each such notice to the Attorney

General.

3. Complaint. Any person served with

notice who desires to assert a claim may do so by

filing a complaint in accordance with

RCFC 5.5(d)(1), 8, and 9.

4. Failure of a Party to Appear. If no

interested person files a complaint within the time

specified in the notice served by the clerk, the case

may be reported upon the papers filed and upon

such evidence, if any, as may be produced by the

Attorney General.

5. Hearing Officer; Review Panel. Upon the

filing of a complaint, the chief judge will designate

by order a judge of the court to serve as the hearing

officer and a panel of three judges to serve as the

reviewing body. One of the review panel members

will be designated by the chief judge as the

presiding officer of the panel. Each hearing officer

and each review panel, acting by majority vote,

shall have authority to perform any acts which may

be necessary or proper for the efficient

performance of their duties, including the power of

subpoena and the power to administer oaths and

affirmations. Subpoenas requiring travel of more

than 100 miles to the place of trial must have

attached thereto an order of approval by the

hearing officer.

 6. Hearing Officer Report. The hearing

officer shall conduct such proceedings and utilize

such Rules of the United States Court of Federal

Claims as may be required to determine the facts,

including facts relating to delay or laches, facts

bearing upon the question of whether the bar of any

statute of limitation should be removed, or facts

claimed to excuse the claimant for not having

resorted to any established legal remedy. The

hearing officer shall find the facts specially. The

hearing officer shall append to the findings of fact

conclusions sufficient to inform Congress whether

the demand is a legal or equitable claim or a

gratuity, and the amount, if any, legally or

equitably due from the United States to the

claimant. The report shall be filed with the clerk,

and served by the clerk on the parties. 

7. Acceptance or Exceptions. Within 30

days after service of the report, each party shall file

either (a) a notice of intention to except to the

report or (b) a notice accepting the report. 

8. Review Panel Consideration and Report.

(a) The clerk shall transmit the findings and

conclusions of the hearing officer, together with

the record of the case, to the review panel.

(b) If either party files a notice of intention to

except, the presiding officer shall establish by

order a schedule for the parties to file briefs on

exceptions to the hearing officer’s findings and

conclusions and any requests for oral argument

before the panel. 

(c) If neither party files a notice of intention to

except, the review panel shall nevertheless review

the report. If the review panel is considering a

material modification of the findings or

conclusions of the hearing officer, the presiding
Appendix D 142

officer by order shall so notify the parties and shall

establish a schedule for the parties to file briefs and

any requests for oral argument before the panel. 

(d) The hearing officer’s findings shall not be

set aside unless they are found to be clearly

erroneous, and due regard shall be given to the

hearing officer to judge the credibility of witnesses.

The hearing officer’s conclusions shall not be set

aside unless justice shall so require. No case shall

be returned to the hearing officer unless so ordered

by the review panel.

(e) After conclusion of its review, including

any briefing and argument, the review panel, by

majority vote, shall adopt or modify the findings

and conclusions of the hearing officer and file its

report with the clerk for service on the parties.

9. Rehearing. Within 14 days after service

of the report of the review panel, any party may file

a motion for rehearing to alter or amend the report.

The motion shall state with particularity any

contention of law or fact which the movant

believes has been overlooked or misapprehended,

and shall contain arguments 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 14

days after the date the motion for rehearing is

served. No time extension shall be allowed for

filing such a response. If the motion for rehearing

is granted, the review panel shall take such further

action as in its discretion may be required by the

circumstances of the particular case. The chief

judge will entertain no appeals or requests for

review of any rulings or actions by a hearing

officer or a review panel.

 10. Transmittal to Congress. When all

proceedings are concluded, the report of the review

panel shall be transmitted by the chief judge to the

appropriate house of Congress. 

11. Admission to Practice. Any attorney

representing a claimant in a congressional

reference case may file and appear as attorney of

record in the proceeding if such attorney is a

member of the bar of the United States Court of

Federal Claims or, if not, upon certification to the

clerk that such attorney is a member in good

standing of the bar of the highest court of any state

in the Union or the District of Columbia. Any

claimant, except a corporation, in a congressional

reference case may proceed pro se. 

12. Filing Fees. Filing fees set forth on the

court’s website at http://www.uscfc.uscourts.gov

are required in congressional reference cases. 

Rules Committee Notes

2002 Revision

 Appendix D provides the procedures applicable

to congressional reference cases. Revisions

effective May 1, 2002 include the deletion from

former paragraph 3 of authority for the filing of a

“preliminary complaint” (a change that reflects the

corresponding deletion of such authority from the

court’s basic rules) and the deletion, as

unnecessary, of former paragraph 6, titled

“Captions.”

 Paragraph 8 (former paragraph 9) has been

reorganized into five subparagraphs.

Subparagraph (c) clarifies the review panel’s

responsibility in the absence of exceptions to a

hearing officer’s report and identifies the

procedures required where modification of such a

report is being considered by the review panel.

Subparagraph (d) sets out standards for review

applicable whether or not exceptions have been

taken, including language formerly appearing in

paragraph 7. The restriction on the role of the

chief judge in the appeal and review process has

been 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 in

accordance with the FRCP’s general guidelines for

time computation that became effective

December 1, 2009.
143 Appendix E

APPENDIX E

ELECTRONIC CASE FILING PROCEDURE

I. INTRODUCTION

1. In General. This Appendix sets forth the

procedures governing electronic filings in the

United States Court of Federal Claims. A Case

Management/Electronic Case Files (CM/ECF)

User Manual is available on the court’s

website—http://www.uscfc.uscourts.gov. 

2. Definitions. For purposes of this Appendix, the

following definitions apply: 

(a) “ECF System” means the court’s

system for electronic case filing; 

(b) “ECF case” means any case

designated by the court as an

electronic case in the ECF System;

(c) “Filing User” means a member of the

court’s bar to whom the court has

issued a log-in and password to file

documents electronically in the ECF

System; 

(d) “filing” means any document that is

filed electronically in the ECF

System; and

(e) “court” means the assigned judge or,

where appropriate, the assigned

special master. 

II. ELECTRONIC CASE 

DESIGNATION AND NOTICE

3. Scope.

(a) Newly Filed Cases. All newly filed

cases will be designated ECF cases

except for cases involving pro se

litigants.

(b) Converted Cases. The court may

convert a pending non-ECF case to

an electronic case at any time.

4. Notice to Counsel. The clerk will notify

counsel that a case has been designated an ECF

case by filing a “Notice of Designation.” All ECF

cases will be listed on the court’s website.

III. ACCESS TO ECF SYSTEM;

RESPONSIBILITY OF FILING USERS;

 EXEMPTION FROM USE

5. Eligibility. An attorney admitted to the bar of

this court may register as a Filing User by

completing the form provided by the clerk, a copy

of which is available on the court’s website. By

registering as a Filing User, an attorney consents to

electronic service of all filings.

6. Log-in and Password.

(a) Notification. Once registered, a

Filing User will be notified of his or

her user log-in and password. 

(b) Security. A Filing User must protect

the security of his or her password

and immediately notify the clerk if it

appears to have been compromised. 

(c) Use. No Filing User or other person

may knowingly permit or cause a

Filing User’s log-in and password to

be used by anyone other than an

authorized agent of the Filing User.

Any Filing User or other person may

be subject to sanctions for failure to

comply with this provision.

7. Exemption From Filing Electronically. By

filing an appropriate motion, an individual not

registered as a Filing User may, for good cause,

seek to be exempted from filing documents

electronically in an ECF case. 

IV. FILING REQUIREMENTS

8. Filings. 

(a) Initial Filings. The filing of initial

papers, including the complaint, and

the payment of the initial filing fee

must be accomplished in the

traditional manner in accordance

with the court’s rules rather than

electronically. 

(b) Subsequent Filings. Once a case

has been designated an ECF case, all
Appendix E 144

subsequent filings must be made

electronically, except as provided in

this Appendix or by leave of the

court in exceptional circumstances

that prevent a Filing User from filing

electronically. 

(c) Exhibits and Attachments. Unless

otherwise ordered by the court, when

filing an exhibit or attachment, a

Filing User: 

(i) must file the exhibit or

attachment electronically along

with the main document under

one entry number;

(ii) must include only those

excerpts of the referenced

exhibit or attachment that are

directly germane to the matter

under consideration by the

court;

(iii) must clearly and prominently

identify the excerpted material;

and 

(iv) may seek leave to file additional

excerpts or the complete

document. 

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 total

number of Adobe PDF files that

constitute a single filing, particularly

when filing appendices and

administrative records. 

(c) Size of Files. 

(i) Unless otherwise ordered by the

court, each Adobe PDF file

must not exceed the size

limitations established by the

court. 

(ii) Current size limitations are

posted on the court’s website or

may be obtained by calling the

clerk’s office. 

(d) Exceeding Size Limitations. For

files that exceed size limitations, the

Filing User must seek appropriate

relief from the court, which may, for

example, authorize a filing in some

other electronic format (e.g., a CDROM) or in paper form. 

10. Courtesy Copies in Paper Form. Unless

otherwise ordered by the court, if a document,

including exhibits and attachments, exceeds 50

pages when printed, the Filing User must supply

chambers with a courtesy copy of the document in

paper form in accordance with RCFC 5.5(c). The

court may order the parties to supply courtesy

copies in paper form of any ECF filing. 

11. Filing Under Seal. In all cases except cases

filed under the National Vaccine Injury

Compensation Program, a party:

(a) must seek leave of the court to file

documents electronically under seal;

and 

(b) may not attach the documents to be

filed under seal to the motion for

leave but rather may file the

documents electronically only after

the motion is granted.

V. FILING PROCEDURES 

12. Notice of Filing; Service.

(a) Notifying Filing Users. At the time

a document is filed, the ECF System

automatically generates a “Notice of

Electronic Filing” and automatically

e-mails the notice to all case

participants who are Filing Users. 

(b) Notifying Individuals Other Than

Filing Users. The clerk will serve the

“Notice of Electronic Filing” (but not

the underlying filing) on case

participants who are not Filing Users

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 of

RCFC 5 and the proof of service

requirement of RCFC 5.3. 
145 Appendix E

13. Effect of Filing and Transmission of Notice

of Filing. A filing by a party under this

Appendix, together with the transmission of the

“Notice of Electronic Filing,” constitutes a filing

under RCFC 5 and an entry on the docket kept by

the clerk under RCFC 58 and 79. 

14. Official Court Record. The official court

record is the electronic recording of the document

as stored by the court and the filing party is bound

by the document as filed. 

15. Date of Filing. Except in the case of a

document first filed in paper form and

subsequently converted to an ECF filing, a

document filed in an ECF case is deemed filed on

the date stated in the “Notice of Electronic Filing.”

16. Timeliness of Filing. Unless otherwise

ordered by the court, a filing under this Appendix

must be submitted before midnight local time in

Washington, DC, to be considered timely filed on

that date.

17. Date Stamp. Each filing must contain at the

top of the first page a banner stating that it was

“Electronically Filed on [date].” 

VI. SIGNATURES AND RELATED

MATTERS

18. Signature Defined. A Filing User’s log-in and

password will serve as his or her signature on a

filing for all purposes, including those under

RCFC 11.

19. Signature Requirements.

(a) Electronic Signature. Filings must

include a signature block, in

compliance with RCFC 11(a), with

the name of the Filing User under

whose log-in and password the

document is submitted along with an

“s/[name of Filing User]” typed in

the space where the signature would

otherwise appear.

(b) Written Signature. A Filing User

may also satisfy the signature

requirement by scanning a document

containing his or her written

signature. 

(c) Noncompliance. A filing that does

not comply with this provision will

be deemed in violation of RCFC 11

and may be stricken from the record.

20. Signatures of Multiple Parties. Documents

requiring signatures of more than one party may be

filed electronically:

(a) by submitting a scanned document

containing all necessary written

signatures;

(b) by representing the consent of the

other parties on the document; or

(c) in any other manner approved by the

court.

VII. COURT ORDERS, JUDGMENTS,

AND APPEALS

21. Filings by the Court. Any order, opinion,

judgment, or other proceeding of the court in an

ECF case will be filed in accordance with this

Appendix. 

22. Effect of Filing. A filing by the court under

this Appendix: 

(a) is an entry on the docket kept by the

clerk under RCFC 58 and 79; and

(b) has the same force and effect as a

paper copy entered on the docket in

the traditional manner. 

23. Notice of Filing; Service. 

(a) Notifying the Parties. Notice of a

filing by the court will be

accomplished by delivering to the

parties a “Notice of Electronic

Filing” in the manner prescribed in

paragraph 12(a) or (b). 

(b) Service. The transmission of the

“Notice of Electronic Filing”

satisfies the service requirement of

RCFC 77(d). 

24. Court-Ordered Deadlines. If an order or

opinion specifies a due date for the filing of a

document, that date will control over any other

filing deadline listed on the docket for that

document.

25. Notice of Appeal. A notice of appeal to the

United States Court of Appeals for the Federal

Circuit must be accomplished in the traditional
Appendix E 146

manner in accordance with the court’s rules rather

than electronically. 

VIII. PRIVACY

26. Personal Information.

(a) In General. Filing Users are advised

that any personal information in an

ECF filing that is not otherwise

protected will be made available over

the Internet via Web Pacer.

(b) Including Personal Information in

a Filing. In compliance with the EGovernment Act of 2002, Filing

Users should not include personal

information in any ECF filing unless

such inclusion is necessary and

relevant to the filing. 

(c) Excluding or Redacting Personal

Information in a Filing. The

following personal identifiers should

be excluded, or redacted when

inclusion is necessary, from all ECF

filings, unless otherwise ordered by

the court:

(i) Social Security numbers—if

an individual’s Social Security

number must be included in a

filing, only the last four digits of

the number should be used;

(ii) names of minor children—if

the name of a minor child must

be mentioned in a filing, only

the initials of the child should

be used;

(iii) dates of birth—if an

individual’s date of birth must

be included in a filing, only the

year should be used; and 

(iv) financial account numbers—if

a financial account number is

relevant to a filing, only the last

four digits of the number should

be used.

(d) Using Caution When Including

Other Sensitive Information.

Filing Users should exercise caution

when filing documents containing: 

(i) a personal identifying number,

such as a driver’s license

number;

(ii) medical records; 

(iii) employment history;

(iv) individual financial information; or 

(v) proprietary or trade secret

information.

27. Deciding When to Include, Redact, or

Exclude Personal Information. Counsel are

strongly urged to discuss with all clients the use of

personal information so that an informed decision

about including, redacting, or excluding such

information may be made. 

28. Responsibility to Protect Personal

Information. It is the sole responsibility of

counsel and the parties to protect any personal

information included in a filing; the clerk’s office

will not review filings to ensure that personal

information has been adequately protected.

IX. RETENTION, TECHNICAL

FAILURE, AND PUBLIC ACCESS

29. Retaining in Paper Form Documents

Requiring More Than One Signature. A

document requiring signatures of more than one

party (e.g., an affidavit or a joint status report)

must be maintained in paper form by the Filing

User until three years after all periods for appeal

expire. The court may request the Filing User to

provide the original document for review.

30. Technical Failure of the ECF System.

(a) Relief by Motion. If a filing is

deemed untimely as the result of a

technical failure of the ECF System,

the Filing User may seek appropriate

relief from the court. 

(b) Deeming the Clerk’s Office

Inaccessible. If the ECF System is

inaccessible for any significant

period of time, the clerk will deem

the clerk’s office inaccessible under

RCFC 6.

31. Reviewing ECF Filings. The public may
147 Appendix E

review ECF filings in the clerk’s office. A person

may also access filings in the ECF System on the

court’s website or by obtaining a PACER log-in

and password (see http://pacer.psc.uscourts.gov).

Rules Committee Note

2007 Adoption

Appendix E replaces former General Order

No. 42A (“Interim Procedures for Electronic Case

Filing”), issued on November 4, 2004, and

establishes electronic case filing as a mandatory

procedure applicable to all new cases filed in the

court except for those cases involving pro se

litigants. For supplemental procedures governing

electronic filings in cases under the National

Vaccine Injury Compensation Program, counsel

shall refer to the Office of Special Masters General

Orders, which can be found on the court’s website.

Former Appendix E (“Procedure in Carrier

Cases”) has been redesignated in these rules as

Appendix I. 
Appendix F 148

APPENDIX F

PROCEDURE IN TAX PARTNERSHIP CASES

Rule 1. General

(a) Applicability. This Appendix sets

forth the special provisions that apply to actions

for readjustment of partnership items under

Section 6226 of the Internal Revenue Code (Code)

and actions for adjustment of partnership items

under Code Section 6228. Except as otherwise

provided in this Appendix, the RCFC, to the

extent pertinent, are applicable to such partnership

actions.

(b) Definitions. As used in this

Appendix,

(1) the term "partnership" means a

partnership as defined in Code Section

6231(a)(1); 

(2) a "partnership action" is either an

"action for readjustment of partnership

items" under Code Section 6226 or an

action for “adjustment with respect to

partnership items" under Code Section

6228;

(3) the term "partnership item"

means any item described in Code

Section 6231(a)(3);

(4) the term "tax matters partner"

means the person who is the tax matters

partner under Code Section 6231(a)(7) or

appointed tax matters partner by the court

under Rule 9 of this Appendix, and who

under this Appendix is responsible for

keeping each partner fully informed of

the partnership action (see Code Sections

6223(g) and 6230(f)); 

(5) a "notice of final partnership

administrative adjustment" is the notice

described in Code Section 6223(a)(2);

(6) the term "administrative

adjustment request" means a request for

an administrative adjustment of

partnership items filed by the tax matters

partner on behalf of the partnership under

Code Section 6227(c);

(7) the term "partner" means a

person who was a partner as defined in

Code Section 6231(a)(2) at any time

during any partnership taxable year at

issue in a partnership action;

(8) the term "notice partner" means

a person who is a notice partner under

Code Section 6231(a)(8);

(9) the term "5-percent group"

means a 5-percent group as defined in

Code Section 6231(a)(11);

(10) the term "deposit" means the

deposit required by Code Section

6226(e)(1); and 

(11) the term "Notice of

Assignment" means the notice mailed to

the parties by the clerk of the court after

the filing of a complaint that advises the

parties of the name of the judge to whom

the proceeding is assigned.

(c) Jurisdictional Requirements. The

court does not have jurisdiction over a partnership

action under this Appendix unless the following

conditions are satisfied:

(1) Actions for Readjustment of

Partnership Items. 

(A) The Commissioner of

Internal Revenue (Commissioner)

has issued a notice of final

pa rt ne rshi p a dmi nistr a ti ve

adjustment (see Code Sections

6226(a), (b)).

(B) A complaint for

readjustment of partnership items is

filed with the court by the tax

matters partner within the period

specified in Code Section 6226(a),

or by a notice partner (or 5 percent

group) subject to the conditions and

within the period specified in Code

Section 6226(b).

(C) The partner or partners

filing the complaint make a deposit

as required by Code Section

6226(e).

(2) Actions for Adjustment of
149 Appendix F

Partnership Items. 

(A) The Commissioner has not

allowed all or some of the

adjustments requested in an

administrative adjustment request

(see Code Section 6228(a)).

(B) A complaint for adjustment

of partnership items is filed with the

court by the tax matters partner

subject to the conditions and within

the period specified in Code

Sections 6228(a)(2) and (3).

(d) Form and Style of Papers. All

papers filed in a partnership action shall be

prepared in the form and style set forth in RCFC

5.5 and l0, except that the caption shall state the

name of the partnership and the full name and

surname of any partner filing the complaint and

shall indicate whether such partner is the tax

matters partner, as for example, "ABC

Partnership, Mary Doe, Tax Matters Partner,

Complainant" or "ABC Partnership, Richard Roe,

A Partner Other Than the Tax Matters Partner,

Complainant."

Rule 2. Commencement of Partnership Action

(a) Commencement of Action. A

partnership action shall be commenced by filing a

complaint with the court. See RCFC 3, relating to

commencement of case; RCFC 5.5 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

complaint shall be titled either "Complaint for

Readjustment of Partnership Items under Code

Section 6226" or "Complaint for Adjustment of

Partnership Items under Code Section 6228."

Each such complaint shall contain the information

described in subdivision (c) below and the

allegations described in subdivision (d) or (e)

below.

(c) All Complaints. All complaints in

partnership actions shall contain

(1) the name and address of

the complainant;

(2) the name, employer

identification number, and

principal place of business of the

partnership and of each partner

filing the complaint at the time

the complaint is filed; and 

(3) the city and state of the

office of the Internal Revenue

Service with which the

partnership's return for the period

in controversy was filed.

A claim for reasonable litigation costs shall not be

included in the complaint in a partnership action.

For the requirements as to claims for reasonable

litigation costs, see RCFC 54(d)(1).

(d) Complaint for Readjustment of

Partnership Items. In addition to including the

information specified in subdivision (c), a

complaint for readjustment of partnership items

shall also contain the following: 

(1) All Complaints. All complaints

for readjustment of partnership items

shall contain 

(A) the date of the notice of

final partnership administrative

adjustment and the city and state of

the office of the Internal Revenue

Service that issued the notice; 

(B) the year or years or other

periods for which the notice of final

pa rt ne rsh i p admin istr a ti ve

adjustment was issued;

(C) clear and concise

statements of each and every error

that the complainant alleges to have

been commit t e d by the

Commissioner in the notice of final

pa rt ne rshi p a dmi nistr a ti ve

adjustment. The assignments of

error shall include issues, if any, in

respect to which the burden of proof

is on the United States. Any issues

not raised in the assignments of

error, or in the assignments of error

in any amendment to the complaint,

shall be deemed to be conceded.

Each assignment of error shall be set

forth in a separately lettered

subdivision;
Appendix F 150

(D) clear and concise lettered

statements of the facts on which the

complainant bases the assignments

of error, except with respect to those

assignments of error, if any, as to

which the burden of proof is on the

United States;

(E) the amount of the deposit

made by each partner filing the

complaint;

(F) the date and place of the

making of each deposit; 

(G) a prayer setting forth relief

sought by the complainant;

(H) the signature, mailing

address, and telephone number of

each complainant or of each

complainant's counsel (see RCFC

83.1 regarding attorneys of record);

and

(I) a copy of the notice of final

pa rt ne rshi p a dmi n istr a ti ve

adjustment, which shall be appended

to the complaint and with which

there shall be included so much of

any statement accompanying the

notice as is material to the issues

raised by the assignments of error.

If the notice of final partnership

administrative adjustment or any

accomp any ing statement

incorporates by reference any prior

notices, or other material furnished

by the Internal Revenue Service,

such parts thereof as are material to

the assignments of error likewise

shall be appended to the complaint.

(2) Complaints by Tax Matters

Partner. In addition to including the

information specified in paragraph (1) of

this subdivision, a complaint filed by the

tax matters partner during the time period

specified in Code Section 6226(b) shall

also contain a separate numbered

paragraph stating that the complainant is

the tax matters partner.

(3) Complaints by Other Partners.

In addition to including the information

specified in paragraph (1) of this

subdivision, a complaint filed by a notice

partner or by a 5-percent group during the

time period specified in Code Section

6226(b) shall also contain

(A) a separate numbered

paragraph stating that the

complainant is a notice partner or a

representative of a 5-percent group

(see Code Section 6226(b)(1));

(B) a separate numbered

paragraph setting forth facts

establishing that the complainant

satisfies the requirements of Code

Section 6226(d);

(C) a separate numbered

paragraph stating the name and

current address of the tax matters

partner; and

(D) a separate numbered

paragraph stating that the tax

matters partner has not filed a

complaint for readjustment of

partnership items within the period

specified in Code Section 6226(a).

Under subdivision (d)(1)(H) above, the

representative of a 5 percent group may sign a

complaint on behalf of all members of the group.

In such circumstances, the complaint shall contain

a separate numbered paragraph stating that the

representative has been duly authorized to sign on

behalf of all members of the group.

(e) Complaint for Adjustment of

Partnership Items. In addition to including the

information specified in subdivision (c) above, a

complaint for adjustment of partnership items

shall also contain

(1) a statement that the complainant

is the tax matters partner;

(2) the date that the administrative

adjustment request was filed and any

other proper allegations showing

jurisdiction in the court in accordance

with the requirements of Code Sections

6228(a)(1) and (2);

(3) the year or years or other periods
151 Appendix F

to which the administrative adjustment

relates;

(4) the city and state of the office of

the Internal Revenue Service with which

the administrative adjustment request was

filed;

(5) a clear and concise statement

describing each partnership item on the

partnership return that is sought to be

changed, and the basis for each such

requested change. Each such statement

shall be set forth in a separately lettered

paragraph;

(6) clear and concise lettered

statements of the facts on which the

complainant relies in support of such

requested changes in treatment of

partnership items;

(7) a prayer setting forth relief

sought by the complainant;

(8) the signature, mailing address,

and telephone number of the complainant

or the complainant's counsel (see RCFC

83.1 regarding attorneys of record); and

(9) a copy of the administrative

adjustment request appended to the

complaint.

(f) Notice of Filing.

(1) Complaints by the Tax Matters

Partner. Within 7 days after receiving

the Notice of Assignment from the clerk,

the tax matters partner shall serve notice

of the filing of the complaint on each

partner in the partnership as required by

Code Section 6223(g). Said notice shall

include the docket number assigned to the

case by the court and the date of the

Notice of Assignment.

(2) Complaints by Other Partners.

Within 7 days after receiving the Notice

of Assignment from the clerk, the

complainant shall serve a copy of the

complaint on the tax matters partner and

at the same time notify the tax matters

partner of the docket number assigned to

the case by the court and of the date of

the Notice of Assignment. Within 7 days

after receiving a copy of the complaint

and of the aforementioned notification

from the complainant, the tax matters

partner shall serve notice of the filing of

the complaint on each partner in the

partnership as required by Code Section

6223(g). Said notice shall include the

docket number assigned to the case by the

court and the date of the Notice of

Assignment.

(g) A Copy of the Complaint to Be

Provided to All Partners. Upon request by any

partner in the partnership as referred to in Code

Section 6231(a)(2)(A), the tax matters partner

shall, within 14 days after receipt ofsuch request,

make available to such partner a copy of any

complaint filed by the tax matters partner or by

any other partner.

(h) Joinder of Parties.

(1) Permissive Joinder. A separate

complaint shall be filed with respect to

each notice of final partnership

administrative adjustment or each

administrative adjustment request issued

to separate partnerships. However, a

single complaint for readjustment of

partnership items or complaint for

adjustment of partnership items may be

filed seeking readjustments or

adjustments of partnership items with

respect to more than one final partnership

administrat i ve a d j ustment or

administrative adjustment request if the

notices or requests pertain to the same

partnership. A complaint may include a

request that the proceeding be assigned to

the judge to whom one or more pending

cases (whether relating to the same

partnership or to another partnership) are

assigned, if the other case or cases

present common or related issues of law

or fact. For the procedures to be followed

by partners who wish to intervene or

participate in a partnership proceeding,

see Rule 4 below.

(2) Severance or Other Orders.

With respect to a case based upon
Appendix F 152

multiple notices of final partnership

administrative a d j u stment or

administrative adjustment requests, the

court may order a severance and a

separate case to be maintained with

respect to one or more of such notices or

requests whenever it appears to the court

that proceeding separately is in

furtherance of convenience, or will avoid

prejudice, or when separate trials will be

conducive to expedition or economy.

Rule 3. Other Pleadings

(a) Answer. The United States shall file

an answer or shall move with respect to the

complaint within the periods specified in and in

accordance with the provisions of RCFC 12.

(b) Reply. For provisions relating to the

filing of a reply, see RCFC 7(a).

Rule 4. Intervention and Participation

(a) Tax Matters Partner. The tax

matters partner may intervene in an action for

readjustment of partnership items brought by

another partner or partners by filing a notice of

election to intervene with the court. Such notice

shall state that the intervenor is the tax matters

partner and shall be filed within 45 days after the

date of the Notice of Assignment (see Code

Section 6226(b)(6) and Rule 2(d)(2) of this

Appendix).

(b) Other Partners. Any other partner

who satisfies the requirements of Code Section

6226(d) or 6228(a)(4)(B) may participate in the

action by filing a notice of election to participate

with the court. Such notice shall set forth facts

establishing that such partner satisfies the

requirements of Code Section 6226(d) in the case

of an action for readjustment of partnership items,

or Code Section 6228(a)(4)(B) in the case of an

action for adjustment of partnership items, and

shall be filed within 45 days after the date of the

Notice of Assignment. A single notice may be

filed by two or more partners; however, each such

partner must satisfy all requirements of this

paragraph in order for the notice to be treated as

filed by or for that partner.

(c) Enlargement of Time. The court

may grant leave to file a notice of election to

intervene or a notice of election to participate out

of time upon a showing of sufficient cause.

(d) Pleading. No assignment of error,

allegation of fact, or other statement in the nature

of a pleading shall be included in the notice of

election to intervene or notice of election to

participate.

(e) Amendments to the Complaint. A

party other than the complainant who is

authorized to raise issues not raised in the

complaint may do so by filing an amendment to

the complaint. Such an amendment may be filed,

without leave of court, at any time before service

of the response to the complaint by the United

States. Otherwise, such an amendment may be

filed only by leave of court. See RCFC 15(a) for

the timing for filing responses 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 on the United States, the tax matters partner

(whether or not the tax matters partner is a

participating partner), and all other participating

partners.

(c) All Other Papers. All other papers

required to be served (see RCFC 5) shall be

served by the parties filing such papers.

Whenever a paper (other than the complaint) is

required to be filed with the court, the original

paper shall be filed with the court with certificates

by the filing party or the filing party's counsel that

service of the paper has been made on each of the

parties set forth in subdivision (b) above or on

such other parties' counsel.

Rule 6. Parties

(a) In General. For purposes of this

Appendix, the United States, the partner who filed

the complaint, the tax matters partner, and each

person who satisfies the requirements of Code

Sections 6226(c) and (d) or Section 6228(a)(4)
153 Appendix F

shall be treated as parties to the action.

(b) Participating Partners. Participating

partners include the partner who filed the

complaint and such other partners who have filed

either a notice of election to intervene or a notice

of election to participate in accordance with the

provisions of RCFC 4. See Code Sections

6226(c), 6228(a)(4)(A). For purposes of the

court's procedural rules other than those set forth

in this Appendix, only participating partners, as

defined in this subdivision, and the United States

shall be considered to be parties.

Rule 7. Settlement Agreements

(a) Consent by the Tax Matters Partner

to Entry of Decision. A stipulation consenting to

entry of decision executed by the tax matters

partner and filed with the court shall bind all

parties. The signature of the tax matters partner

constitutes a certificate by the tax matters partner

that no party objects to entry of the decision. See

Rule 10 below.

(b) Settlement Agreements Entered

Into by All Participating Partners or No

Objection by Participating Partners. 

(1) After expiration of the time

within which to file a notice of election to

intervene or to participate under Rule 4(a)

or (b) above, the United States shall move

for entry of decision and shall submit a

proposed form of decision with such

motion, if

(A) all of the participating

partners have entered into a

settlement agreement with

defendant, or all of such partners do

not object to the granting of

defendant's motion for entry of

decision, and

(B) the tax matters partner (if a

participating partner) agrees to the

proposed decision in the case but

does not certify that no party objects

to the granting of defendant's motion

for entry of decision.

(2) Within 3 days after the date on

which the defendant's motion for entry of

decision is filed with the court, defendant

shall serve on the tax matters partner a

certificate showing the date on which the

defendant's motion was filed with the

court.

(3) Within 3 days after receiving

defendant's certificate, the tax matters

partner shall serve on all other parties to

the action, other than the participating

partners, copies of defendant's motion for

entry of decision, the proposed decision,

and defendant's certificate showing the

date on which defendant'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

granting of the defendant's motion for

entry of decision, then that party shall,

within 60 days after the date on which

defendant's motion was filed with the

court, file a motion for leave to file a

notice of election to intervene or to

participate, accompanied by a separate

notice of election to intervene or to

participate, as the case may be. If no such

motion is filed with the court within such

period, or if the court should deny such

motion, then the court may enter the

proposed decision as its decision in the

partnership action. See Code Sections

6226(f) and 6228(a)(5).

(c) Other Settlement Agreements. If a

settlement agreement is not within the scope of

subdivision (b) above, then 

(1) in the case of a participating

partner, defendant shall promptly file

with the court a notice of settlement

agreement that identifies the participating

partner or partners who have entered into

the settlement agreement; and

(2) in the case of any partner who

enters into a settlement agreement,

defendant shall, within 7 days after the

settlement agreement is executed by both

the partner and defendant, serve on the

tax matters partner a statement which sets

forth
Appendix F 154

(A) the identity of the party or

parties to the settlement agreement

and the date of the agreement;

(B) the year or years to which

the settlement agreement relates;

and

(C) the terms of settlement as

to each partnership item and the

allocation of such items among the

partners. 

Within 7 days after receiving the

statement required by this subdivision,

the tax matters partner shall serve a copy

of the statement on all parties to the

action.

Rule 8. Action for Adjustment of Partnership

Items Treated as Action for Readjustment of

Partnership Items

(a) Amendment of Complaint. If, after

the filing of a complaint for adjustment of

partnership items (see Code Section 6228(a) and

Rule 2(a) above), but before hearing of such

complaint, the Commissioner mails to the tax

matters partner a notice of final partnership

administrative adjustment for the partnership

taxable year to which the complaint relates, such

complaint shall be treated as a complaint in an

action for readjustment of the partnership items to

which such notice relates. The complainant,

within 90 days after the date on which the notice

of final partnership administrative adjustment is

mailed to the tax matters partner, shall file an

amendment to the complaint, setting forth every

error the complainant alleges to have been

committed by the Commissioner in the notice of

final partnership administrative adjustment, and

the facts on which the complainant bases the

assignments of error. A copy of the notice of final

partnership administrative adjustment shall be

appended to the amendment to the complaint. On

or before the date the amendment to the complaint

is delivered to the court, or, if the amendment is

mailed to the court, on or before the date of

mailing, the tax matters partner shall serve notice

of the filing of the amendment to the complaint on

each partner in the partnership as required by

Code Section 6223(g).

(b) Participation. Any partner who has

filed a timely notice of election to participate in

the action for adjustment of partnership items

shall be deemed to have elected to participate in

the action for readjustment of partnership items

and need not file another notice of election to do

so. Any other partner may participate in the

action by filing a notice of election to participate

within 45 days after the date of filing of the

amendment to complaint. See Rule 4 above.

Rule 9. Appointment and Removal of Tax

Matters Partner 

(a) Appointment of Tax Matters

Partner. If, at the time of commencement of a

partnership action by a partner other than the tax

matters partner, the tax matters partner is not

identified in the complaint, the court will take

such action as may be necessary to establish the

identity of the tax matters partner or to effect the

appointment of a tax matters partner.

(b) Removal of Tax Matters Partner.

After notice and opportunity to be heard, the court

may for cause remove a partner as the tax matters

partner. If the tax matters partner is removed by

the court, or if a partner's status as tax matters

partner is terminated for reason other than

removal by the court, the court may appoint

another partner as the tax matters partner if the

partnership fails to designate a successor tax

matters partner within such period as the court

may direct.

Rule 10. Decisions

A decision entered by the court in a

partnership action shall be binding on all parties.

For the definition of parties, see Rule 6 above.

Rules Committee Notes

2002 Adoption

This appendix is new. Section 6226 of

the Internal Revenue Code grants this court

jurisdiction, along with the United States Tax

Court and the United States district courts, to

consider petitions for readjustment of partnership

items as set forth in a final partnership
155 Appendix F

administrative adjustment. Appendix F provides

the procedural rules for such cases. In the

interests of uniformity, the rules contained in

Appendix F parallel the rules applicable to these

cases in the United States Tax Court. 

2010 Amendment

The time periods of 5 and 10 days

formerly set forth in Rule 2 have been changed to

7 and 14 days, respectively, in accordance with

the FRCP’s general guidelines for time

computation that became effective December 1,

2009.
Appendix G 156

APPENDIX G

PROCEDURE IN INDIAN CLAIMS COMMISSION CASES

[Abrogated, effective November 15, 2007.] 

Rules Committee Notes

2002 Revision

Appendix G formerly appeared in these

rules as General Order No. 4 issued December 29,

1982. Although Appendix G remains the same in

substance as General Order No. 4, some of the

earlier language was deleted as unnecessary.

2007 Abrogation

Former Appendix G specified the

procedure for the recovery of attorney’s fees and

expenses in cases transferred to the former United

States Court of Claims from the Indian Claims

Commission pursuant to 25 U.S.C. § 70v (1976)

(amended 1977) and thereafter assigned to this

court pursuant to Pub. L. No. 97-164, § 149, 96

Stat. 25, 46. Because proceedings in all such

transferred cases have been concluded, the

retention of Appendix G has become unnecessary

and therefore it has been abrogated.
157 Appendix H

APPENDIX H

PROCEDURE FOR ALTERNATIVE DISPUTE RESOLUTION

1. General. The United States Court of

Federal Claims recognizes a variety of voluntary,

non-binding alternative dispute resolution (ADR)

tools for use in appropriate cases. ADR techniques

include but are not limited to mediation, minitrials, early neutral evaluation, and non-binding

arbitration. These processes may be conducted

either by a settlement judge or a third-party

neutral.

2. Terms. 

(a) Settlement Judge. A judge of

the court, other than the assigned judge.

Appointment of a settlement judge permits

the parties to engage in a frank, in-depth

discussion of the strengths and weaknesses

of each party's case before a judicial

officer without the inhibitions that might

exist before the assigned judge. A

settlement judge may act both as a

mediator and as a neutral evaluator. This

process should be employed early enough

in the litigation to avoid needless expense

and delay. Use of a settlement judge

permits the parties to gain the benefit of a

judicial perspective without jeopardizing

their ability to gain a resolution of their

case by the assigned judge should

settlement efforts fail. 

(b) Assigned Judge. The judge

regularly assigned to the case. 

(c) Third-Party Neutrals. In

consultation with the bar, the court will

maintain a list of qualified individuals who

have indicated their willingness and

demonstrated their ability to serve as

neutral evaluators and mediators. Parties

may select a third-party neutral who is not

on the court's list.

(d) Mediation. A flexible and

voluntary dispute-resolution procedure in

which a settlement judge or a third-party

neutral, acting as the mediator, facilitates

negotiations to reach a mutually agreeable

resolution. The mediation process

involves one or more sessions in which

counsel, litigants, and the mediator

participate and may continue over a period

of time. The mediator can help the parties

improve communication, clarify interests,

and probe the strengths and weaknesses of

their own and their opponents' positions.

The mediator can also identify areas of

agreement and help generate options that

lead to settlement.

(e) Early Neutral Evaluation.

Using the services of a third-party neutral

or a settlement judge knowledgeable in the

subject matter of the litigation to assess

the strengths and weaknesses of the

parties' positions. In this manner, the

parties may gain a more realistic view of

their prospects for success, thus narrowing

the issues and facilitating settlement.

(f) Mini-Trials. A flexible,

abbreviated procedure in which the parties

present their case, or a portion of it, to a

third-party neutral or 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 parties

may notify the court of their desire to pursue ADR.

There is no single format for ADR. Any

procedures agreed to by the parties and adopted by

the settlement judge or third-party neutral may be

used. Certain basic ground rules will be observed,

however, as follows:

(a) ADR is voluntary. A party’s

good-faith determination that ADR is not

appropriate in a particular case should be

respected by other parties and by the court.

(b) When the parties have indicated

their agreement to ADR to the assigned

judge, the assigned judge, if in agreement,

will forward the request to the clerk of the

court for assignment to a settlement judge

or a third-party neutral as selected by the

parties.
Appendix H 158

(c) In the event the parties agree to

use ADR, the settlement judge or thirdparty neutral and the parties will develop

procedures appropriate to that case. The

settlement judge or third-party neutral and

the parties will develop a written

statement, to be executed by the settlement

judge or neutral, outlining the terms of the

settlement process, including an indication

of assent to confidentiality by all parties.

Neither this statement nor any other

materials developed for use solely within

the ADR process will be filed with the

court. 

(d) There will be no transcript of any

ADR proceeding. All ADR proceedings,

including documents generated solely for

the proceedings and communications

within the scope of the proceedings, are

confidential and will not be provided to a

judge of the court who is not the

settlement judge in the dispute.

Information that is otherwise discoverable

or admissible does not lose that

characteristic merely because of its use in

the ADR proceedings. 

(e) Participation in ADR constitutes

agreement by the parties not to subpoena

or seek in any way the testimony of the

settlement judge in any subsequent

proceeding.

(f) During the ADR process, the

matter will remain on the docket of the

assigned judge. At the conclusion of the

ADR process, the settlement judge or the

third-party neutral will notify the assigned

judge and the clerk of the court only of the

outcome, i.e., whether the matter has been

settled. 

Rules Committee Note

2002 Revision

Appendix H formerly appeared as General

Order No. 13, dated April 15, 1987, and later

amended through Amended General Order No. 13,

dated November 8, 1996. The adoption of the

ADR process as an appendix to the rules reflects

the court’s recognition of the increasing usefulness

of ADR procedures in the resolution of claims

against the United States.
159 Appendix I

APPENDIX I

PROCEDURE IN CARRIER CASES

Rule 1. Carrier’s Request for Admission of

Facts

(a) Time for Filing Request. In every

suit filed by a carrier for the recovery of freight

and/or passenger transportation charges, the carrier

shall, at the time the complaint is filed or within 30

days thereafter, file with the clerk a request for

admission by the defendant of the genuineness of

any relevant documents described in and exhibited

with the request, and of the truth of the material

matters of fact relied on by the carrier for recovery

in the action.

(b) Form and Content of Request. The

request shall conform to the following

requirements:

(1) Duplication. The request, with

accompanying schedules and documents,

may be typewritten, printed, or otherwise

mechanically reproduced from a

typewritten original, provided that all

copies filed with the clerk are legible and

the words and figures shown therein are

large enough type to be read without

difficulty.

(2) Copies; Filing; Service. If the

request accompanies the complaint, copies

and service of such request shall be as

provided in RCFC 4(a) and 5.5(d). If the

request is filed subsequent to the filing of

the complaint, copies and service of such

request shall be as provided in RCFC 5,

except that 5 copies shall be served on the

defendant in lieu of one copy.

(3) Signature of Attorney. The

request shall be signed by the attorney of

record for plaintiff.

(4) Numbered Paragraphs;

Material Facts. The statements contained

in the request shall be properly separated

and numbered and shall consist of specific

statements of material facts which plaintiff

expects to prove as opposed to general

allegations of the kind used in pleadings.

(5) Attachments. There shall be

attached to the request copies of any

contracts, letters, or other documents,

excluding tariffs and other documents

referred to in the schedules required by

subdivisions 7 and 8, below, that plaintiff

proposes to offer into evidence, in order

that the genuineness of such documents

may be admitted by defendant without

having to call a witness to identify the

same. 

(6) Nature of Dispute; Statement of

Issues. The statement in the request shall

be sufficiently explicit to show the nature

of the dispute and the specific reason or

reasons why plaintiff believes it is entitled

to recover higher rates or charges than

those allowed by the government. The

word “dispute” as used in the preceding

sentence, means the shipment or

shipments with respect to which the

General Services Administration (GSA) or

another agency of the government

determined that the carrier's charges had

been overpaid or refused to pay the

carrier's supplemental bills covering such

shipments, rather than subsequent

shipments which are not in dispute except

for the fact that the overpayments

determined as to the shipments in dispute

have been deducted from the amount of

the carrier's bills covering such subsequent

shipments. In order to show the nature of

the dispute, there shall be attached to or

included in plaintiff's request a statement

of the issues which, with respect to each

group of the carrier's bills involving the

same issue, shall consist of a brief

narrative statement of such issue with a

reference to (A) court decisions involving

the same issue, or (B) the tariffs, contract

terms, or other authority relied upon by

plaintiff, and the tariffs or other authority
Appendix I 160

that plaintiff believes defendant relied

upon in making deductions for claimed

overpayments to the carrier or in refusing

to pay the carrier's supplemental bills for

claimed undercharges.

(7) Schedule; Claim for

Transportation of Property. Where the

claim is for the recovery of charges for the

transportation of property for the

government, there shall be attached to the

request a detailed schedule, prepared by or

under the supervision of the general

auditor, comptroller, or other principal

accounting officer of the carrier. The

schedule shall contain the following

factual information: 

(A) List of Carrier's Bills in

Dispute. The number of each of the

carrier's bills for the shipments in

dispute, as distinguished from the

number of a subsequent bill from

which GSA made a deduction

following its determination of an

overpayment on the bill in dispute.

(B) Detail for Each Bill of

Lading. For each bill of lading in

dispute, covered by each bill referred

to in paragraph (A), above, the

following facts: 

(i) the number

and symbol of each bill of

lading;

(ii)the date of the

shipment;

(iii) the origin and

the destination of the shipment;

(iv) a description

of the commodit y or

commodities shipped, including

a description of the packing

where this affects the rate;

(v) the car

number and initial;

(vi) the weight of

the shipment, including the

minimum carload weight when

greater than the actual weight;

(vii) when the

shipment in dispute consists of

one or more carloads of mixed

commodities, a description of

the different commodities and

the respective weights thereof

loaded in each car, including

minimum carload weights where

such weights affect the rates;

(viii) the rates

claimed for each article in the

shipment and for any

accessorial services;

(ix) the total

freight charges on each bill of

lading;

(x) the amounts

refunded by the carrier, if any,

and the dates thereof;

(xi) if the

overpayment determined by

GSA or other agency has been

deducted from the carrier's

subsequent bill or bills, the

number of such subsequent bill

or bills, the amount deducted,

and the date thereof;

(xii) the total

amount paid to the carrier;

(xiii) the balance

due;

(xiv) a specific

reference to the item or items in

designated tariffs authorizing

the charges claimed, including

the classification rating, if

necessary, and authorization for

any accessorial charges claimed;

or a specific reference to a

government rate quotation;

( x v ) the

government file reference

number as obtained from the

GSA notice of overcharge, the

Certificate of Indebtedness, or
161 Appendix I

any other document issued by

GSA, or, in the event there is no

GSA reference number, the

name of the government paying

agency and bureau, the

disbursing office voucher

number, and the date of

payment;

(xvi) if the

shipment in dispute consists in

whole or in part of a through

transit movement, (a) the

through assessable charges from

the original point of shipment to

the final destination, including a

description of the commodity,

the transited weight, the through

rate, the tariff or special

authority for the through rate

used, and, if local tonnage is

involved, the weight thereof, the

points between which local

tonnage moved, and the rates

and charges assessed against

such tonnage, (b) details of the

net amounts paid to and beyond

the transit station, including

references to the “inbound” and

“outbound” shipments by bill of

lading number and symbol, (c)

the date of shipment, origin and

destination, weight rate, and the

net amounts paid to the

respective “inbound” and

“outbound” carriers, naming

them and identifying the bill

numbers on which such

payments were made, and (d)

the balance due, i.e., the

difference between the through

assessable charges, including

the charges on local tonnage, if

any, and the respective net

amounts paid on the inbound

and outbound shipments; and

(xvii) a brief

statement as to the basis for the

claim or other brief statement

that the carrier deems necessary

to explain the peculiarities of

the shipment

(C) Computation for Typical

Bill of Lading. Following the listing

of the information required above

with respect to each group of a

carrier's bills involving the same

issue or basis of freight charge

computation, the carrier shall either

(i) include in the schedule a

computation of the freight charges

for that bill of lading, setting forth

the basis or formula used and

referring to the specific items in

particular tariffs or other authority

upon which it relied for that purpose,

or (ii) attach a worksheet showing

such computation and information

with respect to each typical bill of

lading.

(8) Certification and Signature of

Carrier; Property. The schedule shall be

certified by the general auditor,

comptroller, or principal accounting

officer of the carrier, as follows:

(Name)(Title)

(Name of Carrier)

I do hereby certify that the above and

foregoing schedule has been prepared

from the books and records of said

company for use in a suit in the United

States Court of Federal Claims, entitled

_________ v. United States, No. ____,

and that to the best of my knowledge,

information, and belief the matters

contained therein are true and correct.

To certify which, witness my hand at

____________ this ____ day of ______,

20__.

(Signature of auditor, comptroller, or

principal accounting officer.)

(9) Schedule; Claim for

Transportation of Passengers. Where the
Appendix I 162

claim is for the recovery of charges for the

transportation of passengers for account of

the government, there shall be attached to

the request a schedule, prepared by or

under the supervision of the general

auditor, comptroller, or other principal

accounting officer of the carrier,

containing the following factual

information:

(A) List of Carrier's Bills in

Dispute. The number of each of the

carrier's bills in dispute, as

distinguished from the number of a

subsequent bill from which GSA

made a deduction following its

determination of an overpayment on

the bill in dispute.

(B) Detail for Each

Transportation Request or

Warrant. For each transportation

request or warrant in dispute, covered

by each bill referred to in paragraph

(A), above, the following facts: 

(i) the symbol and

number of each transportation

request or warrant in dispute;

(ii) the date of

service;

(iii) the origin and

destination of the travel;

(iv) the class or

type of service;

(v) whether the

travel was one way or round

trip;

(vi) the number of

the special movement, if any;

(vii) the route of

travel;

(viii) the number

of persons that traveled;

(ix) the gross per

capita fare;

(x) the assessable

passenger charges;

(xi) the amount

paid, and by which government

office and the location of that

office; 

(xii) the amounts,

if any, refunded by the carrier,

the dates of such refund, and the

government office to which the

refund was made and the

location of that office;

(xiii) where an

overpayment was determined by

the government and deducted

from the carrier's subsequent

bill, the number of such

subsequent bill, the amount of

the deduction, and the date

thereof;

(xiv) the total

amount paid and by which

government office and the

location of that office;

(xv) the balance

due;

(xvi) the tariff

reference and item or special

rate authority;

( x v i i ) the

government file reference; and

(xviii) a brief

statement as to the basis for the

claim, including, where

appropriate, a brief explanation

showing the extent to which the

ticket issued by the carrier was

not used and the value of the

unused part of the ticket.

(10) Certification and Signature of

Carrier; Passengers. The schedule

covering the transportation of passengers

shall be certified in the same manner as

provided in Rule 1(b)(8), above, except

that where a request includes schedules

pertaining to claims for the transportation

of both passengers and freight, one

certification shall suffice for all schedules.

(c) Carrier’s Noncompliance;
163 Appendix I

Consequences. In the event the carrier fails or

refuses to comply with the provisions of these

rules, the judge may (1) refuse to allow it to

support designated claims or prohibit it from

introducing in evidence designated documents or

items of testimony, or (2) take other appropriate

action, which may include a dismissal of the

complaint or any part thereof.

Rule 2. Defendant’s Response

(a) Time for Filing; Order. Promptly

after the filing of plaintiff's request, the judge to

whom the case is assigned shall, by order filed

with the clerk, fix a reasonable time within which

defendant shall file its response to the request. A

copy of such order shall be served on the parties as

provided in RCFC 5.

(b) Copies; Service; Signature.

Defendant’s response shall consist of an original

and two copies to be filed with the clerk and with

service to be made on plaintiff as provided in

RCFC 5. The response shall be signed by

defendant's attorney of record and shall comply

with the terms of Rule 1(b)(1), above.

(c) Agreement; Modification; Denial.

Defendant shall file such response within the time

fixed by the court’s order, agreeing to the separate

items of fact, modifying the same in accordance

with the facts known by defendant, specifically

denying the same or setting forth in detail the

reasons why it cannot truthfully admit or deny

designated portions of the request.

(d) Defendant's Statement of Issues. If

defendant does not agree with plaintiff's statement

of the issues, it shall attach to or include in its

response a statement of the issues, which, with

respect to each group of the carrier's bills involving

the same issue, shall consist of a brief narrative

statement of the issue, as defendant contends, with

reference to (1) a court decision involving the same

issue, or (2) the tariffs or other authority relied

upon by defendant.

(e) Verification of Carrier's

Computations. If defendant finds that the

schedule attached to plaintiff's request, or any

portion thereof affecting the amount claimed, is

incorrect on the basis of the tariffs, government

rate quotations, or other authority relied on by

plaintiff in its request, there shall be attached to the

response a schedule prepared by defendant, setting

forth the facts and figures as to the amount of

freight charges defendant asserts would be due on

each carrier's bill if the court holds that the tariffs

or other authorities relied on by plaintiff in its

request are applicable, and showing how defendant

arrived at any changes or corrections in the

amounts claimed by plaintiff.

(f) Schedule; Defendant's Basis for

Applicable Charges. If defendant claims that the

tariffs, government rate quotations, or other

authority relied on by plaintiff are inapplicable

with respect to any of the carrier's bills listed in

plaintiff's request, there shall be attached to the

response a schedule prepared by defendant setting

forth the facts and figures in detail as to the

amount of freight or passenger charges defendant

claims is due on each disputed carrier's bill, and

containing a specific reference to the item or items

in designated tariffs, government rate quotations,

or other authority relied on by defendant in support

of its contention. The schedule shall also comply

with the terms of subdivision (b)(7)(C), above.

(g) Failure to Deny or Respond Within

Specified Time; Consequences. Except where

the response details the reasons why defendant

cannot admit or deny a particular statement in the

request, any fact not so modified or denied in the

response shall be deemed admitted, and the failure

of defendant to file its response within the time

specified by the court’s order shall be taken as an

admission of all of the facts as set forth in the

request.

(h) Qualified Denial of Facts Available

to Defendant; Consequences. Where the request

sets forth any facts that are within the knowledge

of GSA or of the department or agency of

defendant for which the transportation was

performed and these facts specifically include but

are not limited to the facts and figures that

plaintiff, by this order, is directed to include in its

schedules, a response stating that defendant cannot

truthfully admit or deny such facts, or a denial
Appendix I 164

based on a lack of knowledge by defendant's

attorney of record, shall be deemed an admission

thereof, provided that such a response shall not be

deemed an admission if accompanied by the sworn

statement of the official in charge of the records

that a search has been made for the necessary

documents or information and that the documents

or information cannot be found.

 (i) Relation to Pleadings; Time for

Filing Answer or Counterclaim. In all cases to

which this procedure applies, the time for filing

defendant's answer and any counterclaim may,

without regard to the provisions of RCFC 12 and

13, be contemporaneous with the date fixed by the

judge for filing defendant's response to plaintiff's

request, provided, however, that the period of

limitations provided by 49 U.S.C. §§ 11705 and

14705 within which defendant may file a

counterclaim is not extended by any rule set forth

in this Appendix or by any order. At its option,

defendant may include the response in its answer

or counterclaim, which pleadings, nevertheless,

shall otherwise comply with the rules applicable to

them.

Rule 3. Acceptance of Response; Pretrial;

Judgment

 (a) Plaintiff's Acceptance of Response.

If a plaintiff is willing to accept the amount shown

to be due it in defendant's response, or, where a

counterclaimhas been filed, is willing to accept the

net amount shown to be due plaintiff in the

response after deducting the amount of defendant's

counterclaim, plaintiff's attorney of record shall

sign and file with the clerk within 30 days after the

filing of the response an original and two copies of

a typewritten statement titled “Plaintiff’s

Acceptance of the Amount Defendant Admits is

Due,” indicating that the response shows that a

specified sum is due plaintiff or, where a

counterclaim has been filed, that the response

shows that the net amount of the counterclaim is a

specified sum, and that plaintiff consents to the

entry of judgment in the amount specified in favor

of plaintiff in full settlement and satisfaction of all

claims asserted in the complaint and request for

admission of facts.

 (b) Pretrial Conference; Fixing

Amount of Recovery. When plaintiff does not file

an acceptance of the amount shown to be due in

the response, a pretrial conference shall be held for

the purpose of (1) resolving all issues and

recording an agreement for the entry of judgment

or for dismissal of the complaint or any part

thereof, or (2) segregating the carrier's bills in

dispute from those not in controversy and fixing

the amount that either party would be entitled to

recover in the event of a decision in its favor,

and/or (3) taking any other action that may aid in

the prompt disposition of the suit.

 (c) Entry of Judgment. Where all

material issues are disposed of through the filing

by plaintiff of its acceptance of the amount shown

to be due in defendant's response or at the pretrial

conference, or by defendant's failure to file its

response within the time fixed by the judge,

judgment may be entered without further

proceedings.

Rule 4. Cases Within Primary Jurisdiction of

the Surface Transportation Board 

(a) Referral to the Surface

Transportation Board. In any suit subject to the

terms of this Appendix, if defendant contends,

whether on the basis of the freight charge

computations used by plaintiff or on the basis of

the freight charge computations used by defendant,

that any of the carrier's bills listed in the request

raise issues within the primary jurisdiction of the

Surface Transportation Board, and if defendant

intends to move the court to refer such issues to

that agency, defendant shall file its motion with the

clerk at the time fixed for the filing of its response

under this order. The motion shall contain: 

(1) an identification of the carrier's

bills involved unless all the bills in suit are

included in the motion;

(2) a description of the commodities

shipped and a statement respecting any

other factors that are pertinent to the

issues covered by the motion;

(3) a reference to the applicable
165 Appendix I

tariffs and a copy of the pertinent

provisions thereof;

(4) a precise statement of the issue or

issues to be referred; and

(5) a statement as to whether the

Surface Transportation Board has

construed the cited tariffs in prior

decisions or has clarified the facts

underlying them, citing the pertinent

decisions, if any.

(b) Plaintiff's Response to Defendant's

Motion for Referral. Plaintiff's response to the

motion shall be filed within 30 days after service

of the motion and shall state whether plaintiff

concurs in the motion. If plaintiff contends that the

Surface Transportation Board has construed the

tariffs referred to in defendant's motion or has

clarified the factors underlying them in previous

decisions, the response shall cite such decision.

(c) Referral to Surface Transportation

Board—Plaintiff's Motion. In any suit subject to

the terms of this Appendix, if plaintiff contends

that any of the carrier's bills in suit raise issues

within the primary jurisdiction of the Surface

Transportation Board and if plaintiff intends to

move the court to refer such issues to that agency,

plaintiff shall file its motion within 30 days after

the date defendant's response is filed and shall

conform such motion to the requirements of Rule

4(a), above.

(d) Defendant's Response to Plaintiff's

Motion for Referral. Defendant's response to

plaintiff's motion shall conform to the requirements

of Rule 4(b), above. 

(e) Effect of Filing a Referral Motion.

The trial of any case subject to the terms of this

Appendix in which a motion for referral is filed

shall be deferred until final action on the motion.

(f) Failure to File a Referral Motion

Within the Specified Time. The failure of either

party to file, within the time prescribed above, a

motion requesting the court to refer a pending case

or any part thereof to the Surface Transportation

Board may be deemed good cause for denying any

such motion thereafter filed.

Rules Committee Notes

2002 Revision

Appendix E formerly appeared in these

rules as Appendix C. Additionally, substantive

changes have been made. 

First, the word “common” has been

stricken from the term “common carrier.” The

term “common carrier” is no longer used in the

Interstate Commerce Act, 49 U.S.C. § 13102. As

a result of industry deregulation, see ICC

Termination Act of 1995, Pub. L. No. 104-88,

§103, 109 Stat. 803, 852, carriers are no longer

required to file tariffs other than for household

goods and noncontiguous domestic trade.

Additionally, Certificates of Public Convenience

and Necessity are no longer required and thus there

are no “common carriers” in the sense in which

that term formerly was used, i.e., to describe a

public utility occupying fully regulated status. 

Second, in Rule 1(b)(6), titled “Nature of

Dispute; Statement of Issues,” the term “General

Accounting Office” was replaced with “General

Services Administration.” The GSA Board of

Contract Appeals replaced the General Accounting

Office as reviewing authority in GSA

transportation audit billing appeals pursuant to the

Legislative Branch Appropriations Act of 1996,

effective June 30, 1996, and delegations of

authority granted thereunder. Also, in Rule

1(b)(6), the term “contract terms” was added as

authority relied upon by plaintiffs in their

statement of issues because, with no tariff filing

requirement, individual movements by contract are

more common. 

Third, all references to a “§ 22 quotation”

were replaced with “government rate quotation.”

Section 22 (49 U.S.C. § 22 (1887)) rates were

replaced by “government rates” under 49 U.S.C.

§ 10721 (rail) and § 13712 (all other modes), and

as such, lower rates are not limited strictly for the

use of the government. 

Fourth, in Rule 1(b)(9)(B), the word

“government” was struck in reference to a

transportation request or warrant in dispute. Under

the provisions of 41 CFR § 102-118.175,

Government Bills of Lading will no longer be used
Appendix I 166

for domestic traffic and under 41 CFR § 102-

118.180, Government Transportation Requests will

no longer be mandatory. 

Fifth, in Rule 2(i), titled “Relation to

Pleadings; Time for Filing Answer or

Counterclaim,” the statutory reference was

updated. 

Finally, in Rule 4, all references to the

“Interstate Commerce Commission” were stricken

and replaced with the “Surface Transportation

Board.” While carriers are no longer subject to

full regulation, the “reasonableness requirement”

on “through routes,” “divisions of joint rates,” and

rates “made collectively by [any group of] carriers

under agreements approved by the Surface

Transportation Board,” remains intact and is

subject to that body’s review.

2007 Redesignation

Appendix I formerly appeared in these

rules as Appendix E.
167

APPENDIX OF FORMS

FORM 1

ADMISSION INSTRUCTIONS

The accompanying form shall be used in applying for admission to the bar of this court pursuant to

RCFC 83.1. This form should be duly executed and returned to the clerk of the court along with the

following 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

court and 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

$250.00 to cover the required fee.

Applications (including letters and fee) must be complete when submitted; incomplete applications

will be returned.

Admission under this procedure does not require your appearance in person. A certificate will be

forwarded to you upon the granting of your application.

______________________

Clerk of Court

717 Madison Place, NW 

Washington, DC 20005-1011

(202) 357-6400
168

IN THE MATTER OF THE PETITION OF

_____________________________________________

(Please print/type your full name on the above line)

FOR ADMISSION TO PRACTICE IN

THE 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 as

an attorney at law in the _______________________________________(highest state court), and is now

a 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

States Court 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 I WILL CONDUCT MYSELF IN AN UPRIGHT MANNER AS AN ATTORNEY OF THIS COURT. 

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.

Executed on (date) ______________________________. (28 U.S.C. §1746)

______________________________________

Signature

Address (including firm if applicable):

___________________________________________

___________________________________________

___________________________________________

___________________________________________

Phone: ___________________________ Fax: _______________________

E-mail address: _________________________________

--------------------------------------------------------------------------------------------------------------------------------------

Attorney Pro Bono Appointment Registration Form for Pro Se Cases:

9 I am willing to be appointed counsel for pro se plaintiffs on a pro bono basis. 
169

FORM 2

COVER SHEET

In The United States Court of Federal Claims

Cover Sheet

Plaintiff(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: 999

Select 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: 999

See 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 No

If yes, you are required to file a separate notice of directly related case(s). See RCFC 40.2. 
170

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
171

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
172

FORM 3A

REPORTER FORM

Caption Page

[Withdrawn (eff. Nov. 3, 2008).]
173

FORM 3B

CERTIFICATE 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 Reporter

Address: _____________________________

 _____________________________

 _____________________________
174

FORM 3C

CERTIFICATE 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 from

a copy of the official electronic digital recording provided by the United States Court of Federal Claims in

the above-captioned matter. 

Date: _____________________________

Signature: _____________________________

Address: _____________________________

 _____________________________

 _____________________________
175

FORM 4

BILL 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)
176

FORM 5

EQUAL 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 COURT

after 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
177

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)
178

FORM 6A

SUBPOENA TO APPEAR AND TESTIFY AT A HEARING OR TRIAL

United States Court of Federal Claims

 

 

 

vs. No. 

THE UNITED STATES

SUBPOENA TO APPEAR AND TESTIFY

AT 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: 

 

 
179

 

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 or

attorney responsible for issuing and serving a subpoena must

take reasonable steps to avoid imposing undue burden or

expense on a person subject to the subpoena. The court must

enforce this duty and impose an appropriate sanction—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 appear for 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 attorney designated in the subpoena a written

objection to inspecting, copying, testing or sampling any

or all of the materials or to inspecting the premises—or to

producing electronically stored information in the form or

forms requested. The objection must be served before the

earlier 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
180

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

commanded to 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 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 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 or modifying 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 asthey 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 electronically stored information, the person

responding must produce it in a form or forms in which it

is ordinarily maintained or in a reasonably usable form or

forms.

(C) Electronically Stored Information Produced in Only

One Form. The person responding need not produce the

same electronically stored information in more than one

form.

(D) Inaccessible Electronically Stored Information. The

person responding need not provide discovery of

electronically stored information from sources that the

person identifies as not reasonably accessible because of

undue burden or cost. On motion to compel discovery or

for a protective order, the person responding must show

that the information is not reasonably accessible because

of undue burden or 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 or disclose the information until the claim is

resolved; must take reasonable steps to retrieve the

information if the party disclosed it before being notified;

and may promptly present the information to the court

under seal for a determination of the claim. The person

who produced 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’s failure to obey must be excused if the subpoena purports

to require the nonparty to attend or produce at a place outside the

limits of RCFC 45(c)(3)(A)(ii). 
181

FORM 6B

SUBPOENA TO TESTIFY AT A DEPOSITION OR TO PRODUCE DOCUMENTS

United States Court of Federal Claims

 

 

 

vs. No. 

THE UNITED STATES

SUBPOENA TO TESTIFY AT A DEPOSITION

OR 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:

 

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 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)
182

 

The name, address, e-mail, and telephone number of the attorney representing (name of party) 

 , who issues or requests this subpoena, are: 

 

 

 

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 or

attorney responsible for issuing and serving a subpoena must

take reasonable steps to avoid imposing undue burden or

expense on a person subject to the subpoena. The court must

enforce this duty and impose an appropriate sanction—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 appear for 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 attorney designated in the subpoena a written

objection to inspecting, copying, testing or sampling any

or all of the materials or to inspecting the premises—or to
183

producing electronically stored information in the form or

forms requested. The objection must be served before the

earlier 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

commanded to 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 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 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 or modifying a subpoena, order

appearance or production underspecified 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 electronically stored information, the person

responding must produce it in a form or forms in which it

is ordinarily maintained or in a reasonably usable form or

forms.

(C) Electronically Stored Information Produced in Only

One Form. The person responding need not produce the

same electronically stored information in more than one

form.

(D) Inaccessible Electronically Stored Information. The

person responding need not provide discovery of

electronically stored information from sources that the

person identifies as not reasonably accessible because of

undue burden or cost. On motion to compel discovery or

for a protective order, the person responding must show

that the information is not reasonably accessible because

of undue burden or 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 issubject 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 or disclose the information until the claim is

resolved; must take reasonable steps to retrieve the

information if the party disclosed it before being notified;

and may promptly present the information to the court

under seal for a determination of the claim. The person

who produced 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’s failure to obey must be excused if the subpoena purports

to require the nonparty to attend or produce at a place outside the

limits of RCFC 45(c)(3)(A)(ii). 
184

FORM 6C

SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS

OR TO PERMIT INSPECTION OF PREMISES 

United States Court of Federal Claims

 

 

 

vs. No. 

THE UNITED STATES

SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR

OBJECTS 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: 

Place: Date and Time:

 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. 

Place: Date and Time:

 

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 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)
185

 

The name, address, e-mail, and telephone number of the attorney representing (name of party) 

 , who issues or requests this subpoena, are: 

 

 

 

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 or

attorney responsible for issuing and serving a subpoena must

take reasonable steps to avoid imposing undue burden or

expense on a person subject to the subpoena. The court must

enforce this duty and impose an appropriate sanction—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 appear for 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 attorney designated in the subpoena a written

objection to inspecting, copying, testing or sampling any

or all of the materials or to inspecting the premises—or to
186

producing electronically stored information in the form or

forms requested. The objection must be served before the

earlier 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

commanded to 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 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 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 or modifying a subpoena, order

appearance or production underspecified 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 electronically stored information, the person

responding must produce it in a form or forms in which it

is ordinarily maintained or in a reasonably usable form or

forms.

(C) Electronically Stored Information Produced in Only

One Form. The person responding need not produce the

same electronically stored information in more than one

form.

(D) Inaccessible Electronically Stored Information. The

person responding need not provide discovery of

electronically stored information from sources that the

person identifies as not reasonably accessible because of

undue burden or cost. On motion to compel discovery or

for a protective order, the person responding must show

that the information is not reasonably accessible because

of undue burden or 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 issubject 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 or disclose the information until the claim is

resolved; must take reasonable steps to retrieve the

information if the party disclosed it before being notified;

and may promptly present the information to the court

under seal for a determination of the claim. The person

who produced 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’s failure to obey must be excused if the subpoena purports

to require the nonparty to attend or produce at a place outside the

limits of RCFC 45(c)(3)(A)(ii). 
187

FORM 7

CAPTION OF ALL FILINGS IN VACCINE CASES

United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

________________________,

 Petitioner[s],

 v.

SECRETARY OF HEALTH AND

HUMAN SERVICES, 

 Respondent.

)

)

)

)

)

)

)

)

)

)

)

)

 No. _________V

 Special Master__________________

[TITLE OF FILING]
188

FORM 7A

SUBPOENA IN VACCINE CASES

United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

________________________,

 Petitioner[s],

 v.

SECRETARY OF HEALTH AND HUMAN

SERVICES, 

 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 deposition

in the above-captioned case.

Place of Deposition:_________________________________________

Date and Time:_____________________________________________

3. YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the

place, date, and time specified below (list documents or objects):

Place:____________________________________________________

Date and Time:_____________________________________________

4. YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below.

Premises:_________________________________________________

Date and Time:_____________________________________________

Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more

officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person

designated, the matters on which the person will testify.

______________________________________________________________________________

ISSUING OFFICER SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT) DATE

___________________________________________________________________________________________________________________

ISSUING OFFICER’S NAME, ADDRESS, AND PHONE NUMBER

___________________________________________________________________________________________________________________

NOTE - If the place of travel is more than 100 miles (by the shortest usual means of travel) from the place where the subpoena is served, or if the 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
189

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)

PROOF OF SERVICE

DATE PLACE

SERVED

SERVED ON (PRINT NAME) MANNER OF SERVICE

9 Fees tendered for one day’s attendance and mileage allowed by law. (Fees and mileage need not be tendered when the subpoena is issued on behalf

of the United States or an officer or agency thereof.)

DECLARATION OF SERVICE

I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Proof of Service

is true and correct.

Executed on 

DATE SIGNATURE OF SERVER

_____________________________________

ADDRESS OF SERVER

RCFC 45.

(c) Protecting a Person Subject to a Subpoena.

(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps

to avoid imposing undue burden or expense on a person subject to the subpoena. The court must enforce this duty and impose an appropriate

sanction—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 appear

for 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 attorney

designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the

premises—or to producing electronically stored information in the form or forms requested. The objection must be served before the

earlier 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 commanded

to 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 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 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 or

modifying 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
190

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

electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a

reasonably usable form or forms.

(C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored

information in more than one form.

(D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored information

from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery

or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden

or 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 trialpreparation material must:

(i) expressly make the claim; and

(ii) describe the nature ofthe withheld documents, communications, or tangible things in a manner that, withoutrevealing 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 trialpreparation 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 or

disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before

being notified; and may promptly present the information to the court under seal for a determination of the claim. The person who

produced 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’s

failure to obey must be excused if the subpoena purports to require the nonparty to attend or produce at a place outside the limits of RCFC

45(c)(3)(A)(ii). 
191

FORM 8

PROTECTIVE ORDER IN PROCUREMENT PROTEST CASES

United States Court of Federal Claims

_____________________________,

 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 of

this litigation may be competition-sensitive or otherwise protectable and that entry of a Protective Order is

necessary to safeguard the confidentiality of that information. Accordingly, the parties shall comply with

the terms and conditions of this Protective Order. 

I.

1. Protected Information Defined. “Protected information” as used in this order means information that

must 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 provided

during this litigation.

2. Restrictions on the Use of Protected Information. Protected information may be used solely for the

purposes of this litigation and may not be given, shown, made available, discussed, or otherwise

conveyed in any form except as provided herein. 

II.
192

3. Individuals Permitted Access to Protected Information. Except as provided in paragraphs 7 and 8

below, the only individuals who may be given access to protected information are counsel for a party

and 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 information

pursuant to Appendix C, Section VI of this court’s rules must read this Protective Order; must complete

the appropriate application form (Form 9—“Application for Access to Information Under Protective

Order by Outside or Inside Counsel,” or Form 10—“Application for Access to Information Under

Protective Order by Expert Consultant or Witness”); and must file the executed application with the

court. 

5. Objecting to an Application for Admission. Any objection to an application for access must be filed

with 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 second

business day after the other parties have received the application, the applicant will be granted access

to protected information without further action by the court. If any party files an objection to an

application, access will only be granted by court order. 

7. Access to Protected Information by Court, Department of Justice, and Agency Personnel. Personnel

of the court, the procuring agency, and the Department of Justice are automatically subject to the terms

of 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 support

personnel assisting any counsel who has been admitted under this Protective Order may be given access

to protected information by such counsel if those personnel have first been informed by counsel of the

obligations imposed by this Protective Order. 

III.

9. Identifying Protected Information. Protected information may be provided only to the court and to

individuals 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 use

by the judge, must contain a banner stating “Protected Information to Be Disclosed Only in

Accordance With the U.S. Court of Federal Claims Protective Order” and the portions of any

document containing protected information must be clearly identified.

10. Filing Protected Information. Pursuant to this order, a document containing protected information may

be filed electronically under the court’s electronic case filing system using the appropriate activity listed

in the “SEALED” documents menu. If filed in paper form, a document containing protected

information must be sealed in the manner prescribed in paragraph 9(b) and must include as an
193

attachment to the front of the parcel a copy of the certificate of service identifying the document being

filed. 

11. Protecting Documents Not Previously Sealed. If a party determines that a previously produced or filed

document contains protected information, the partymay give notice in writing to the court and the other

parties that the document is to be treated as protected, and thereafter the designated document must be

treated 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 must

promptly serve on the other parties a proposed redacted version marked “Proposed Redacted

Version” in the upper right-hand corner of the first page with the claimed protected

information deleted. 

(b) Additional Redactions. If a party seeks to include additional redactions, it must advise the

filing party of its proposed redactions within two (2) business days after receipt of the

proposed redacted version. The filing party must then provide the other parties with a second

redacted version of the document clearly marked “Agreed-Upon Redacted Version” in the

upper 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 an

agreement between the parties has been reached regarding additional redactions, the filing

party 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 be

available to the public. 

(d) Objecting to Redactions. Any party at any time may object to another party’s designation of

certain information as protected. If the parties are unable to reach an agreement regarding

redactions, the objecting party may submit the matter to the court for resolution. Until the

court 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 more

than three (3) copies of a protected document received from another party, except with the consent of

all other parties. A party may make additional copies of such documents, however, for filing with the

court, service on the parties, or use in discovery and may also incorporate limited amounts of protected

information into its own documents or pleadings. All copies of such documents must be clearly labeled

in the manner required by paragraph 9. 

14. Waiving Protection of Information. A party may at any time waive the protection of this order with

respect to any information it has designated as protected by advising the court and the other parties in

writing and identifying with specificity the information to which this Protective Order will no longer

apply.
194

15. Safeguarding Protected Information. Any individual admitted under this Protective Order must take

all necessary precautions to prevent disclosure of protected information, including but not limited to

physically 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 Protective

Order, the party must promptly report the breach to the other parties and immediately take appropriate

action to cure the violation and retrieve any protected information that may have been disclosed to

individuals not admitted under this Protective Order. The parties must reasonably cooperate in

determining the reasons for any such breach.

17. Seeking Relief From the Protective Order. Nothing contained in this order shall preclude a party from

seeking relief from this Protective Order through the filing of an appropriate motion with the court

setting forth the basis for the relief sought.

VI.

18. Maintaining Filed Documents Under Seal. The court will maintain properly marked protected

documents 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 other

materials that have been filed with the court under seal will be retained by the court pursuant to RCFC

77.3(c). Copies of such materials may be returned by the court to the filing parties for disposition in

accordance 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 in

writing to each other party that such destruction has occurred or must return the protected information

to the parties from which the information was received. Each party may retain one copy of such

documents provided those documents are properly marked and secured. 

IT IS SO ORDERED. 

_____________________________

Judge
195

FORM 9

APPLICATION FOR ACCESS TO INFORMATION UNDER

PROTECTIVE ORDER BY OUTSIDE OR INSIDE COUNSEL

United States Court of Federal Claims

______________________________,

 Plaintiff,

 v.

THE UNITED STATES,

 Defendant.

)

)

)

)

)

)

)

)

)

)

)

 No. _________

 Judge___________________

APPLICATION FOR ACCESS TO INFORMATION UNDER

PROTECTIVE ORDER BY OUTSIDE OR INSIDE COUNSEL

1. I, ___________________________, hereby apply for access to protected information covered by

the 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 this

proceeding.

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 an

interested party to this proceeding, or any other firm that might gain a competitive advantage from access

to the information disclosed under the Protective Order. I do not provide advice or participate in any

decisions of such parties in matters involving similar or corresponding information about a competitor. This

means that I do not, for example, provide advice concerning, or participate in decisions about, marketing or

advertising strategies, product research and development, product design or competitive structuring and

composition of bids, offers, or proposals with respect to which the use of protected information could provide

a 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 in

the preceding paragraph:

6. I identify here (by writing “none” or listing names, position, and responsibilities) any member of

my immediate family who is an officer or holds a management position with an interested party in the
196

proceeding or with any other firm that might gain a competitive advantage from access to the information

disclosed under the Protective Order.

_____________________________________________________________________________________

7. I identify here (by writing “none” or identifying the name of the forum, case number, date, and

circumstances) instances in which I have been denied admission to a protective order, had admission

revoked, or have been found to have violated a protective order issued by any administrative or judicial

tribunal:

_____________________________________________________________________________________

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 advice

in 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 in

terms of physical proximity and corporate structure); and

e. measures taken to isolate me from competitive decision making and to protect against the

inadvertent disclosure of protected information to persons not admitted under the Protective

Order.

9. I have read the Protective Order issued by the court in this proceeding. I will comply in all respects

with that order and will abide by its terms and conditions in handling any protected information produced

in connection with the proceeding.

10. I acknowledge that a violation of the terms of the Protective Order may result in the imposition of

such 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
197

FORM 10

APPLICATION FOR ACCESS TO INFORMATION UNDER

PROTECTIVE ORDER BY EXPERT CONSULTANT OR WITNESS

United States Court of Federal Claims

______________________________,

 Plaintiff,

 v.

THE UNITED STATES,

 Defendant.

)

)

)

)

)

)

)

)

)

)

)

 No. _________

 Judge___________________

APPLICATION FOR ACCESS TO INFORMATION UNDER

PROTECTIVE ORDER BY EXPERT CONSULTANT OR WITNESS

1. I, the undersigned, am a ____________________ with ________________________ and hereby

apply for access to protected information covered by the Protective Order issued in connection with this

proceeding.

2. I have been retained by __________________________ and will, under the direction and control

of ____________________________, assist in the representation of __________________________in this

proceeding.

3. I hereby certify that 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 any party to this proceeding or

any other firm that might gain a competitive advantage from access to the information disclosed under the

protective order. Neither I nor my employer provides advice or participates in any decisions of such parties

in matters involving similar or corresponding information about a competitor. This means, for example, that

neither I nor my employer provides advice concerning, or participates in decisions about, marketing or

advertising strategies, product research and development, product design or competitive structuring and

composition of bids, offers, or proposals with respect to which the use of protected information could provide

a competitive advantage.

4. My professional relationship with the party for whom I am retained in this proceeding and its

personnel is strictly as a consultant on issues relevant to the proceeding. Neither I nor any member of my

immediate family holds office or a management position in any company that is a party in this proceeding

or 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;
198

d. a description of the financial interests that I, my spouse, and/or my family has in any entity

that is an interested party in this proceeding or whose protected information will be reviewed;

if none, I have so stated;

e. a list identifying by name of forum, case number, date, and circumstances all instances in

which I have been granted admission or been denied admission to a protective order, had a

protective order admission revoked, or have been found to have violated a protective order

issued 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 identification

numbers.

6. I have read a copy of the Protective Order issued by the court in this proceeding. I will comply in

all respects with all terms and conditions of that order in handling any protected information produced in

connection with the proceeding. I will not disclose any protected information to any individual who has not

been 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 the

preparation 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 any

successor 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 the

preparation of a proposal or submission to_____________ nor will I have any personal involvement in any

such activity.

9. I acknowledge that a violation of the terms of the Protective Order may result in the imposition of

such 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
199

FORM 11

SURETY BOND FOR TEMPORARY RESTRAINING ORDER

OR PRELIMINARY INJUNCTION

United States Court of Federal Claims

______________________________,

 Plaintiff,

 v.

THE UNITED STATES,

 Defendant.

)

)

)

)

)

)

)

)

)

)

)

 No. _________

 Judge___________________

SURETY BOND

FOR TEMPORARY RESTRAINING ORDER

OR

PRELIMINARY 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
200

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
201

FORM 12

SUPERSEDEAS BOND (SURETY)

United States Court of Federal Claims

______________________________,

 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
202

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
203

FORM 13

BOND WITH COLLATERAL FOR

TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION

United States Court of Federal Claims

______________________________,

 Plaintiff,

 v.

THE UNITED STATES,

 Defendant.

)

)

)

)

)

)

)

)

)

)

)

 No. _________

 Judge___________________

BOND WITH COLLATERAL FOR

TEMPORARY 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 as

1

collateral, but the Bond must be accompanied by the appropriate power of attorney.

204

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 may 1

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