Rule 1. Scope; construction; effective date.

(a) Scope and construction.-These rules govern all proceedings in the United States Court of Claims. They shall be so construed as to promote the just, speedy, and inexpensive determination of every action.

(b) Effective date.-These rules will take effect on April 1, 1964. They govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent that, in the opinion of the court, their application in a particular action pending when the rules take effect would not be feasible or would work injustice, in which event the former procedure applies.

II. THE COURT

Rule 2. Name and seal.

(a) Name.-The name of the court, as fixed by section 171 of title 28 United States Code, is "United States Court of Claims."

(b) Seal. The seal of the court shall be the American eagle, as represented in the arms of the United States, engraved on a circular piece of brass or steel of the size of a half dollar, with these words in the margin: On the upper part, "Court of Claims"; and in the other part of the margin, Reipublicae Civibusque❞.

Rule 3. Always open; term.

(a) Court always open.-The court shall be deemed always open for the purpose of filing proper papers, issuing and returning process, making motions, and issuing orders.

(b) Annual term.-The annual term of the court shall begin on the first Monday in October. The continued existence or expiration of a term in no way effects the power of the court to do any act or take any proceeding.

Rule 4. The court and commissioners.

(a) Proceedings before commissioners.-Cases commenced in the Court of Claims will be referred

to commissioners, as provided in Rule 53(a), for the conduct of proceedings pursuant to the provisions of Rule 52(b).

(b) Delegations of authority to commissioners.— Delegations of authority to "the commissioner" in these rules relate to actions which a commissioner is authorized to take with respect to a case while it is under reference to him in accordance with Rule 53. A termination of the reference under Rule 53(b) (1), or a suspension of the reference under Rule 53(b) (2), terminates or suspends the authority of the commissioner with respect to the case.

(c) When "court" includes commissioners.-The term "the court" as used in Rules 9, 10, 18–23, 26–32, 36-43, 45-47, 49, 51, 70, and 77, and as indicated therein by asterisks, includes the commissioners in matters under reference to them pursuant to Rules 53 and 54, to the extent of the authority vested in them by Rule 52.

(d) Action by the court.-(1) Requests for review of the commissioners' actions or orders, as provided by Rule 52(d) or Rule 55(a) (3), may be acted upon by the chief judge or a judge in chambers. Such action shall be without prejudice and subject to review by the court in its discretion. Proceedings before the commissioner will not be stayed pending action upon a request for review pursuant to this provision unless the commissioner or the court or a judge thereof shall so order.

(2) Commissioners' recommendations for conclusions of law on dispositive motions (Rule 55(b)) and commissioners' reports (Rule 58) will be acted upon only with the concurrence of at least three judges. III. COMMENCEMENT OF SUIT; SERVICE OF PROCESS; COMPUTATION OF TIME

Rule 5. Commencement of suit.

(a) Petition: filing and fee.-A suit in this court shall be commenced by filing a petition with the clerk and by paying to him the fee required by Rule 83.

(b) Petition: form; content; production; copies.The petition shall conform to the following requirements: form, Rules 13-16; content, Rule 17; production and copies, Rule 82(a). (Cf. Rule 18, for petition pending discovery; and Rule 23(g), for third-party petition.)

Rule 6. Service of petition.

(a) Service upon the United States.-Service of the petition upon the United States shall be made through the delivery by the clerk to the Attorney General, or to an agent designated by authority of the Attorney General, of copies of the petition in numbers prescribed by paragraph (b) of this rule.

(b) Copies.-The clerk shall deliver to the Attorney General or his designated agent 10 copies of the petition: Provided, That when only 5 copies of the petition are initially filed under Rule 82(a) (2), 3 copies shall be delivered without delay to the Attorney General or his designated agent, and 10 additional copies shall be delivered when the party files the remaining 25 copies called for by Rule 82(a) (2). Rule 7. Service of other papers.

Except as provided in Rule 23, relating to thirdparty procedure, every order required by its terms

to be served, every pleading subsequent to the original petition, every written motion, every written notice, every brief, every application for transcript of record, and similar papers, shall be served by the clerk upon the party or parties affected thereby as follows:

(a) Upon the plaintiff, by mailing a copy (or copies, where more than one copy is required by these rules) to plaintiff's attorney of record at his address registered with the clerk as required by Rule 16;

(b) Where the plaintiff is not represented by an attorney, by mailing such copy or copies to the plaintiff at the address registered with the clerk as required by Rule 16; and

(c) Upon the United States, by delivery of such copy or copies to the Attorney General, or to an agent designated by authority of the Attorney General.

Rule 8. Proof of service.

At the time of serving a pleading, motion, or other paper, as provided in Rules 6 and 7, the clerk shall enter the fact of service on the docket, and such entry shall be prima facie evidence of service. For the purposes of these rules, the date of service shall be the date of filing with the clerk.

Rule 9. Time.

(a) Computation.—(1) In computing any period of time prescribed or allowed by these rules or by order of the court, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday in the District of Columbia, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.

(2) The following days are legal holidays in the District of Columbia:

New Year's Day, January 1.

Inauguration Day, every fourth year.

Washington's Birthday, February 22.

Memorial Day, May 30.

Independence Day, July 4.

Labor Day, first Monday in September.

Veterans Day, November 11.

Thanksgiving Day, fourth Thursday in November. Christmas Day, December 25.

When a legal holiday falls on Sunday, the next day is a holiday.

When a legal holiday falls on Saturday, the preceding day is a holiday.

(b) Enlargement.-(1) When, by these rules or by a notice given thereunder or by order of the court, an act is required or allowed to be done at or within a specified time, the court* may, upon motion under Rule 11 stating good cause for such action, order the period enlarged.

(2) Every motion for enlargement of time (i) must set forth therein the specific number of additional days requested, the date to which the enlargement is to run, the extent to which the time for the performance of the particular act has been

*Or the commissioner: Rule 4.

previously enlarged (by motion or stipulation), and the reason or reasons upon which the motion for enlargement is based; and (ii) must be filed within the period allowed for the performance of the act to which the motion relates (including any previous enlargement of the time): Provided, That the requirement stated in subdivision (ii) may be waived by the court* upon a showing, in a separate motion for leave to file out of time, that the delay in filing was the result of excusable neglect.

(c) Additional time after service by mail.-Whenever a party has the right or is required to do some act or take some proceeding within a prescribed period after the service of a pleading, motion, or other paper upon him, and the service is made by mail outside the District of Columbia, 3 days shall be added to the prescribed period for points east of the Mississippi River, and 5 days shall be added to the prescribed period for points west of the Mississippi River.

(d) When time begins to run.-In computing any period of time prescribed or allowed by these rules or by order of the court,* the period of time shall commence to run on the day after the date of service of a pleading, motion, or other paper unless otherwise particularly specified in these rules.

(e) Unaffected by expiration of term.-The period of time provided for the doing of any act or the taking of any proceeding is not affected or limited by the continued existence or expiration of a term of court.

IV. PLEADINGS AND MOTIONS

Rule 10. Pleadings allowed.

(a) Pleadings.-There shall be a petition and an answer; and if the answer contains a counterclaim or a plea of fraud, there shall be a reply to the counterclaim or to the plea of fraud. There shall be such third-party pleadings as are permitted by Rule 23. No other pleading shall be allowed, except that the court* may order a reply to an answer, or a responsive pleading to a third-party petition or

answer.

(b) Demurrers, pleas, etc., abolished.-Demurrers, pleas, and exceptions for insufficiency of a pleading shall not be used.

Rule 11. Motions and related papers.

(a) Content of motions.-Every application to the court or the commissioner for an order shall be by written motion filed with the clerk. The motion shall state with particularity the grounds therefor and shall set forth the relief or order sought.

(b) Form; signing; duplication; copies.-The rules relating to the form of pleadings (Rule 15), signing (Rule 16), production and duplication (Rules 7982), and number of copies (Rule 82), shall apply to all motions and related papers provided for by these rules, including objections and responses to motions, and including briefs and memoranda of citations in support of motions, objections, and responses.

(c) Briefs; memoranda; affidavits.—Any brief, memorandum of citations, or affidavits submitted

in support of any motion, or in support of any objections or response to a motion, shall be included in or attached to each copy of such motion, objections, or response. Every dispositive motion, as defined in Rule 12(a), shall be supported by the moving party's brief.

(d) Notice of action.-The clerk shall give the parties written notice of the disposition of all motions.

Rule 12. Motions: dispositive and procedural; objections and responses.

(a) Dispositive motions defined.-Dispositive motions include (1) motions for judgment on the pleadings (Rule 20); (2) motions asserting defenses based upon lack of jurisdiction of the subject matter or the person, or upon failure to state a claim upon which relief can be granted (Rule 20); (3) motions to dismiss (Rule 67); and (4) motions for summary judgment (Rule 64.).

(b) Time for filing. (1) Objections and responses to dispositive motions.-Objections or a response to a dispositive motion shall be filed within 30 days after the service of such motion.

(2) Reply briefs.-The moving party shall have 15 days from the date of the service of the objections or response to such motion within which to file a reply brief.

(c) Procedural motions defined.-Except for dispositive motions, as defined in paragraph (a) of this rule, and the motions referred to in Rules 68 and 69, all motions are regarded as procedural motions for the purposes of these rules. They include motions for enlargement of time under Rule 9.

(d) Time for filing objections or responses to procedural motions.—Objections or a response to a procedural motion shall be filed within 10 days after the service of such motion.

(e) Stipulation for enlargement of time. The parties may, by stipulation filed with the clerk prior to the granting of any extension, extend the time for the filing of objections or a response for a total period not exceeding that specified by this rule for the filing of the particular objections or response. Rule 13. General rules of pleading.

(a) Pleading to be concise and direct; consistency. (1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.

(2) A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them, if made independently, would be sufficient, the pleading is not made insufficient by the insufficiently of one or more of the alternative statements. A party may also state as many separate claims or defenses as he has, regardless of consistency and whether based on legal or on equitable grounds or on both. All statements shall be made subject to the obligations set forth in Rule 16(c).

(b) Construction of pleadings.-All pleadings shall be so construed as to do substantial justice.

Rule 14. Pleading special matters.

(a) Capacity.-It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court and to comply with the provisions of Rule 17. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, he shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge.

(b) Fraud; mistake; caprice; condition of mind.— In all averments (1) of fraud (including a plea by the United States that the plaintiff has practiced or attempted to practice fraud within the meaning of 28 U.S.C. § 2514), (2) of mistake, or (3) of action alleged to be arbitrary, capricious, or so grossly erraneous as to imply bad faith, the circumstances constituting fraud, mistake, or arbitrary, capricous, or erroneous action shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.

(c) Conditions precedents.-In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.

(d) Judgment.-In pleading a judgment or decision of a domestic or foreign court, of a judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it.

(e) Time and place.-For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter.

Rule 15. Form of pleadings.

(a) Caption; names of parties; designation; paging. Every pleading (and every other paper to be filed with the clerk) shall contain a caption in large and distinct type setting forth the name of this court, The United States Court of Claims; the title of the action; the docket number; and a designation to show the nature of the pleading (or other paper). In the petition, the title of the action shall include the names of all the parties, but in other pleadings (and papers) it is sufficient to state the name of the first party on each side with an appropriate indication of other parties. The paging of each pleading (or other paper) shall commence with page 1.

(b) Paragraphs; Separate Statements.-All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense, other

than denials, shall be stated in a separate count or defense, whenever a separation facilitates the clear presentation of the matters set forth

(c) Adoption by reference; exhibits.-Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes unless otherwise indicated, but the adverse party shall not be deemed to have admitted the truth of the allegations in such exhibit merely because he has failed to deny them explicitly.

Rule 16. Signing of papers.

(a) Parties other than the United States.-Every pleading or paper of a party (other than the United States) represented by an attorney shall be signed by the attorney of record, as defined in Rule 77, and the initial pleading shall set forth the post office address of the party and of the attorney. A party who is not represented by an attorney shall set forth his post office address in his initial pleading and shall sign his pleadings and papers. All notices and copies of pleadings and papers will be sent to the attorney of record where the party is represented by an attorney; otherwise to the party.

(b) The United States.-Every pleading or paper of the United States shall be signed by the Attorney General, or by an attorney of the Department of Justice designated by him.

(c) Effect of signature.-The signature of an attorney or a party constitutes a certificate by him that he has read the pleading or paper; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. The signature of an attorney also constitutes a representation by him that he is authorized to represent the party or parties in whose behalf the pleading or paper is filed. If a pleading or paper is not signed, or is signed with intent to defeat the purpose of this rule, it may be stricken as sham and false, and the action may proceed as though the pleading or paper had not been served. For a willful violation of this rule, an attorney may be subjected to appropriate disciplinary action by the court. Similar action may be taken if scandalous or indecent matter is inserted.

Rule 17. Content of petition.

The petition shall set forth:

(a) Statement of facts.-A clear and concise statement of the facts on which each claim is based, including the facts upon which the court's jurisdiction depends, the time when and place where the claim arose, and the items and amounts claimed: Provided, That in cases for general or specific accounting, the statement of relief requested may omit the amounts claimed.

(b) Action by other tribunal or body.—Any action on the claim taken by Congress or by any department of the Government, or in any judicial proceeding, including any in the Tax Court of the United States.

(c) Citations of statutes, regulations, orders.-A clear citation of the act of Congress, regulation of an executive department or agency, or Executive

order of the President, where the claim is founded upon such an act, regulation, or order.

(d) Contracts or treaties.—If the claim is founded upon a contract or treaty with the United States, a description of the contract or treaty sufficient to identify it. In addition, the plaintiff shall plead the substance of those portions of the contract or treaty on which he relies or, at his election, annex to the petition a copy of the contract or treaty or the provisions thereof on which he relies.

(e) Patent suits.-In any patent suit, the claim or claims of the patent or patents alleged to be infringed.

(f) Ownership of claim; assignment.—Where the plaintiff is the owner by assignment or other transfer of the claim, in whole on in part, when and upon what consideration the assignment or transfer was made.

(g) Demand for judgment.-A demand for judgment to which the pleader deems himself entitled. (h) Addresses and signatures.-The address and signatures required for an initial pleading by Rule 16(a).

Rule 18. Petition pending motion for discovery.

When the plaintiff cannot state his case with the requisite particularity without an examination of documents or things or other information in the possession of any department or agency of the Government, and he has been unable upon application to obtain a sufficient examination of such documents or things or other information, he may file a petition in conformity with Rule 5(b), stating his claim as far as is in his power and specifying as definitely as he can the documents or things or other information he requires. Within 30 days after the filing of such petition, he shall file a motion pursuant to Rules 30, 38, 39, or 40, or such combination thereof as may be needed to obtain from the proper department or agency of the Government such documents or things or other information as may be deemed necessary. If such motion is granted, plaintiff may file an amended petition within 30 days after such documents or things or other information are furnished or obtained. Defendant need not respond to an original petition filed under this rule, but shall answer or otherwise respond to the amended petition within the time required under these rules for answering an original petition. If no motion is granted or if an amended petition is not filed after the requested documents or things or other information are furnished or obtained, the defendant shall file such responsive pleading or motion within such time as the court* may require.

Rule 19. Defenses.

(a) Form of denials.—A party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If the attorney for a party or a party not represented by an attorney is unable to obtain knowledge or information sufficient for him to form a belief as to the truth of an averment, the answer shall so state and such statement shall have the effect of a denial. Denials shall fairly meet the

*Or the commissioner: Rule 4.