There is no Court that is more sensitive to the necessity of eliminating undue litigation delays and perfecting its procedures than is the Court of Claims. In 1951 the Court concluded that the time had come for a complete revision and modernization of its Rules along the pattern of the Federal Rules of Civil Procedure. After a thorough study, made in collaboration with the Department of Justice, the Bar generally, and a Special Committee of the American Bar Association in particular, the Court in that year issued a thoroughly new set of Rules which were, insofar as its special Commissioner method of fact-finding permits, fashioned after the Federal Rules. For the first time, many of the more modern techniques were authorized. Summary judgment procedures were permitted. Extensive pre-trial techniques were adopted. Discovery proceedings were permitted,' and a host of other improvements were made.

As to discovery, there long had been in existence a unique, specific, statutory "call" procedure for the obtaining, in Court of Claims suits, of Government documents and information in the possession of the Government. There was, therefore, a doubt in some minds whether, under the expressio unius doctrine, the new discovery rules, insofar as they could similarly be used to inspect and obtain Government documents, were valid. The problem was the lack of a statutory base for the procedure in a situation where Congress had specifically authorized a different procedure for the purpose. However, all doubts in this respect were set to rest by the enactment of a statute in 1954 expressly authorizing the Court to adopt Rules with respect to discovery.'

6

The new Rules were not long in effect before it became obvious that various changes were desirable. Individual Rules were perfected by specific amendments issued from time to time, and by 1953 there were sufficient of them to warrant another complete re-issue. The same process resulted in yet another in December 1957. Thus, although generally fashioned after the Federal Rules, the fact that the Court has complete power over its own rules and, unlike the courts subject to the Federal Rules, is free to amend them at any time, has resulted in a current set of nonjury trial court Rules which many consider to be one of the finest in our judicial system.

THE PETITION

The general principles applicable to a plain and concise statement of the facts should be followed. Too many petitions are overly long, detailed, and violative of the rules against pleading evidence." In a contract case, the require

2 The Court has always had its own set of Rules, adopted under the authority of 28 U.S.C. 2071, which provides: "Rule-making power generally. The Supreme Court and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business. * * The last previous reprint of the Rules was on June 1, 1949, based on the reprint of July 2, 1945, plus amendments promulgated thereafter. 377 Am. Bar Ass'n. Rep. 283 (1952).

"One of the outstanding and most notable advances made by the new procedure certainly the advance that has attracted the most attention-is in the field of discovery." Holtzoff, A Judge Looks At The Rules, discussing the Federal Rules in "Federal Rules of Civil Procedure, 1957," West Pub. Co.

528 U.S.C. 2507.

Subsection (b) of 28 U.S.C. 2507, added September 3, 1954, 68 Stat. 1247.

"The purpose of proposed subsection (b) of section 2507 of title 28 is to eliminate the argument that the only means by which a litigant in the Court of Claims can obtain papers in the custody of Government departments is through a call, and to make it clear that in the enactment of section 2071, title 28, United States Code, Congress intended that thhe Court of Claims could issue rules, which give to all litigants, private citizens and the Government alike, the same rights of pretrial discovery as is accorded to them in suits brought in the District Courts pursuant to section 1346, title 28, United States Code [relating to suits against the Government in the District Courts]." H. R. Rep. No. 1981, 83rd Cong., 2d Sess., p. 20.

7 The same question has been raised in connection with still a third method of obtaining Government documents, i.e., through a subpoena duces tecum. While the Court has refused to forbid its use absolutely for such purpose, it has indicated that this method of obtaining Government documents would be limited to unusual situations when the normal methods of call or discovery are impractical. Kamen Soap Products Co. v. United States, 124 C. Cls. 519 (1953).

Rule 12 simply states that the petition shall set forth "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 and place where the claim arose, and the items and amounts claimed *

On the other hand, a petition can be so skimpy or general as to leave one in the dark as to what is the plaintiff's complaint. "In the writing of pleadings, one must steer the illdefined course between stating over-naked legal conclusions on the one hand, and reciting evidence, on the other." Ready-Mix Concrete Co., Ltd. v. United States, C. Cls. January 15, 1958. Where a petition is so general and indefinite as to leave one "in doubt as to the precise grounds on which recovery is sought," it is subject to dismissal. Sherlow v. United States, 105 C. Cls. 224 (1945).

ment of Rule 12 that the facts upon which the Court's jurisdiction is based be set forth is automatically satisfied, of course, by the mere fact that the claim is based upon the contract.10 There are no jurisdictional limits so far as dollar amounts are concerned, either upper or lower."

Under Rule 12, all petitions having their jurisdictional basis in a contract must, in addition, set forth a few other matters:

(1) Any action theretofore taken on the claim by Congress, any Governmental Department, or in any Court, must be set forth. In this connection, the Court of Claims ordinarily cannot handle a contract claim which is simultaneously in litigation in some other Court.12

(2) The contract must be identified. A simple description giving the agency, the general subject matter, and the contract number, will generally suffice. In addition, the substance of the portions of the contract relied upon must be pleaded, or such portions may be annexed to the petition. Many practitioners are in the habit of printing the entire contract and annexing it to the petition. This was formerly the practice, and, indeed, the requirement of the old Rules. Since many contracts are quite voluminous, printing bills ran unnecessarily high. If the interpretation of only one section of a contract is in dispute, it is obviously wasteful to print an entire, lengthy contract. As the Rules now specifically permit setting forth or even summarizing only those contract provisions which are in dispute, no reason exists for the continuance of this expensive, unnecessary, procedure. All that is really essential is that the pleader make plain what it is of which he is complaining, and for this purpose it is normally not necessary to print the entire contract as an exhibit to the petition, as is still the custom of so many practitioners.

13

(3) Full disclosure must be made of the present ownership of the claim. The facts with respect to all assignments, including the consideration upon which any assignment or transfer was made, must be set forth." It must be borne in mind that, except for assignments to financing institutions, contracts or interests therein cannot be assigned or transferred so as to vest in the assignee or transferee a valid claim against the Government.15

In one respect, however, more elaborate pleading is now required. In many instances, a Government official's decision is made, by contract provision or by statute, "final and conclusive." Most practitioners have now learned, however, that "final and conclusive" does not necessarily give complete immunity against court review, and that one of the most successful avenues of attack against that formidable phase is to charge that the action taken was "arbitrary" or "capricious." If a decision is in fact "arbitrary," or "capricious," or "so grossly erroneous as to imply bad faith," or lacking any substantial evidentiary foundation, the Courts are seldom deterred by such a finality provision.16 However, after this became plain, too many practitioners felt that all that was necessary to guard against a motion to dismiss, if they were complaining about an agency decision that would otherwise be "final and conclusive," would be to label the

10 The three most important bases for the Court's jurisdiction are actions founded on (1) a contract, (2) an Act of Congress, (3) the Constitution. 28 U.S.C. 1491. Contractors with Post Exchanges, however, cannot sue the United States in the Court of Claims on such contracts. Borden v. United States, 126 C. Cls. 902 (1953); Pulaski Cab Co. v. United States, C. Cls. - January 15, 1958.

"In contract cases, the District Courts have concurrent jurisdiction with the Court of Claims up to $10.000. 28 U.S.C. 1346.

28 U.S.C. 1500; Corona Coal Co, v. United States, 263 U.S. 537 (1924); National Cored Forgings Co., Inc. v. United States, 132 C. Cls. 11, 132 F. Supp. 454 (1955). 13 Rule 12(d).

14 Rule 12 (f).

31 U.S.C. 203: 41 U.S.C. 15. Maffia v. United States, 135 C. Cls. 604 (1956). See Shnitzer, Assignment of Claims Arising Out of Government Contracts, 16 Fed. Bar J. 376 (1956). However, transfers by operation of law, such as by mergers or consolidations, or by way of subrogation, do not violate the Anti-Assignment statutes. Seaboard Air Line Ry. v. United States, 256 U.S. 655 (1921); United States v. Aetna Casualty & Surety Co., 338 U.S. 366 (1949).

16 ⚫ no provision of any contract entered into by the United States, relating to the finality or conclusiveness of any decision of the head of any department or agency or his duly authorized representative or board in a dispute involving a question arising under such contract, shall be pleaded in any suit now filed or to be filed as limiting Judicial review of any such decision to cases where fraud by such official or his said representative or board is alleged: Provided, however, that any such decision shall be final and conclusive unless the same is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence." Public Law 356, 83rd Cong., 2nd Sess. approved May 11, 1954, 68 Stat. 81. 41 U.S.C. (1952 Ed. Supp. II) 321-322. This statute followed the decision in United States v. Wunderlich, 342 U.S. 98 (1951). See Cuneo, Judicial Review Under the Wunderlich Act, 17 Fed. Bar Jour. 626 (1957).

decision with the phrase "arbitrary and capricious." Despite warnings from the Court that such general pleading was in the nature of a legal conclusion and would not be looked upon with favor," the practice still persisted, until now the Court has specifically required that "In all averments *** of action alleged to be arbitrary, capricious, or so grossly erroneous as to imply bad faith, the circumstances constituting * ** arbitrary, capricious, or erroneous action shall be stated with particularity." 18 Practitioners should pay strict attention to this important recent amendment of the Rules, for it is now wholly clear that much more is required in attempting to overcome the obstacle of a finality provision than the naked "arbitrary and capricious" pleading if their petitions are to withstand a motion to dismiss for failure to state a cause of action.

Generally, however, the Court follows the modern tendency of construing pleadings liberally. Amendments are freely permitted before, during and after the trial, and even after judgment. As the Court only very recently remarked in a case 19 where the question was raised as to whether the relief ultimately claimed was even sought in the petition:

"*** the forms of pleading in the Court of Claims are not of so strict a character as to preclude the claimant from recovering what is justly due him upon the facts stated in his petition, although due in a different aspect from that in which his demand is conceived." 20

The Court further pointed out that, in any event, the petition contained a broad prayer for "such other and further relief as the nature of the case may require and to the Court may seem just and proper" and that this prayer would be held to cover a theory and form of relief which was entirely different from the theory upon which the plaintiff originally proceeded. Clearly, the inclusion of a broad prayer of this general tenor is good practice."

Suits in the Court of Claims should be brought only against "The United States" as the defendant, and not against the particular agency that entered into the contract, any agency official, or other Government officer. However, ordinarily this error is not fatal. The Court will simply regard the suit as one against the United States."

Since the revision of the Judicial Code in 1948, it has not been necessary to include a so-called “true allegiance” provision in the petition. This former requirement was based on statutory jurisdictional restrictions with respect to Civil War claims,23 and the provisions of the old Rules of the Court." Nevertheless, some practitioners are still unnecessarily incorporating such an allegation in their petitions.

THE GOVERNMENT'S ANSWER OR OTHER RESPONSIVE PLEADING

The Rules fix 60 days as the time within which the Government's answer is ordinarily to be filed." However, the contractor's attorney will frequently be requested to stipulate for an extension of time of at least an additional 60 days. It is appreciated that contractors often come to the Court after a long series of what they consider to be unjustified obstacles and delays in obtaining payment. Angered, or faced with financial stringency, they order their attorneys to institute suit, press for immediate action, and to show no mercy. A vigorous, intelligent prosecution of his client's rights is, of course, the duty of the con

17 Oro Fino Consolidated Mines, Inc. v. United States, 118 C. Cls. 18. 23 (1959), cert. den.. 341 U.S. 948: Rosnick v. United States, 132 C. Cls. 1. 6: 129 F. Supp. 958 (1955). 18 Rule 9(b). This is really only an extension of the requirement of old Rule 9(b), as well as the present Rule 9(b) of the Federal Rules, requiring particularity with respect to averments of fraud or mistake.

19 Equitable Trust Co. & Heisse v. United States, 1957.

C. Cls., decided November 6,

20 Quoting from Clark v. United States, 95 U.S. 539, 543 (1877), and again repeated in Field v. United States, C. Cls. -, as recently as January 15, 1958.

21 Also see Nautilus Shipping Corp. v. United States, C. Cls., January 15, 1958, in which the Court held that such a prayer entitled the claimant to equitable recoupment, by way of set-off against a valid Government counterclaim, of a sum which the claimant could not recover directly because of the bar of the statute of limitations.

23 O'Leary v. United States, 77 C. Cls. 635 (1933); Byers v. United States, 121 C. Cls. 40 (1951). But see Moran v. United States, 127 C. Cls. 825 (1954).

23 28 U.S.C. (1946 ed.) 251, 290.

24 The reprint of July 2, 1945, Rule 8(f), required the petition to set forth that the plaintiff "has at all times borne true allegiance to the Government of the United States and has not in any way voluntarily aided, abetted, or given encouragement to rebellion against the said Government " This requirement was eliminated in the 1949 Reprint of the Rules, the first reprint after the 1948 Code revision.

25 Rule 16(a).

tractor's attorney and will not be resented by anyone. Nevertheless, an unreasoning and blind attitude, with no appreciation of the realities of the situation, will necessarily be unavailing and, if anything, may be harmful to the client's interests.

The contractor may rest assured he will not find in the Department of Justice an unsympathetic and unyieldingly harsh adversary. The Department's attorneys who handle similar claims on a day-to-day basis invariably know full well the problems and frustrations of the contractor and the often heartbreaking experiences the contractor has encountered at the agency, operative, level. The Justice attorney is completely removed from the tempers and strains of the administrative battleground preceding the litigation stage. Indeed, the contractor has the assurance of a completely fresh look at his problem by a Department that almost always has had nothing whatever to do with the matter and no familiarity with it and can, therefore, approach the issue with a wholly disinterested and dispassionate attitude.20

Accordingly, when the Department requests the contractor's attorney to stipulate for additional time to answer, it is not with the intent and purpose further to delay the collection of a just claim. It is only because the Justice attorney simply does not have the information with which to file an answer, which, under the Rules, can no longer take the form of a general denial, but must set forth specific admissions and denials with respect to the allegations of the petition. A contractor sometimes acts as if everyone in Washington, including the attorneys in the Department of Justice, is thoroughly familiar with his claim and can, therefore, immediately respond to his petition. Accordingly, a contractor's attorney will on occasion refuse to stipulate for an extension of time to answer, considering the request as a dilatory tactic.

However, Congress long ago realized that the Department of Justice, in defending suits instituted in the Court of Claims, must obtain complete reports from its client agencies, and therefore enacted legislation making it the duty of the agencies to render such reports. Without the necessary data from the interested agencies, the Department cannot answer and must necessarily seek appropriate extensions. The larger and more complicated the case is, the longer the time, naturally, the agency will require to prepare and submit an informative litigation report. The Government's operations are nationwide, and indeed, in these times, even world-wide. Where the events occurred, and the necessary documents and witnesses are located, in distant agency field offices, more than the 60 days specified by the Rules is manifestly required for the agency to respond to the Department's request for a report. In short, the Department of Justice is, as to its client, not in the same position that the contractor's attorney is with respect to his client.

The problems with which Government counsel is faced in ascertaining the facts and collecting the evidence pertaining to the claim were long ago recognized by the Court of Claims:

Cf. Sobeloff, Attorney for the Government: The Work of the Solicitor General's Office. 41 A.B.A.J. 229 (1955).

Rule 15(a)

5 U.S.C. 91. Evidence furnished by departments in suits in Court of Claims. In all suits brought against the United States in the Court of Claims founded upon any contract, agreement, or transaction with any department, or any bureau, officer, or agent of a department, or where the matter or thing on which the claim is based has been passed upon and decided by any department. bureau, or officer authorized to adjust it, the Attorney General shall transmit to such department, bureau, or officer, a printed copy of the petition filed by the claimant, with a request that the department. bureau, or officer, shall furnish to the Attorney General all facts, circumstances, and evidence touching the claim in the possession or knowledge of the department, bureau, or officer. Such department. bureau, or officer shall, without delay, and within a reasonable time, furnish the Attorney General with a full statement, in writing, of all such facts, information, and proofs. The statement shall contain a reference to or description of all such official documents or papers, if any, as may furnish proof of facts referred to in it, or may be necessary and proper for the defense of the United States against the claim, mentioning the department, office, or place where the same is kept or may be procured. If the claim has been passed upon and decided by the department, bureau, or officer, the statement shall succinctly state the reasons and principles upon which such decision was based. In all cases where such decision was founded upon any Act of Congress, or upon any section or clause of such Act, the same shall be cited specifically and if any previous interpretation or construction has been given to such Act, section, or clause by the Department. bureau, or officer, the same shall be set forth succinctly in the statement, and a copy of the opinion filed, if any, shall be annexed to it. Where any decision in the case has been based upon any regulation of a department, or where such regulation has, in the opinion of the department, burean, or officer transmitting such statement, any bearing upon the claim in suit, the same shall be distinctly quoted at length in the statement. * * *

"The Government is not, like an individual, cognizant of its own transactions. Those transactions are numberless, dependent on unnumbered officers, and scattered not only through every portion of its wide territory, but through every quarter of the world. *** The Government must depend on its agents, and they alone can defend it by their testimony."

Formerly, all extensions of time to answer had to be approved by the Court by order entered following the making of a motion. However, in the recent revisions of the Rules, the Court, in recognition of the frequent justifiable need of the Department of Justice for time in excess of 60 days, has permitted the parties to stipulate for extensions up to 180 days. Thereafter, further extension must be obtained by way of motion.

Contractors' counsel familiar with the problems faced by Government counsel in the above respects will unhesitatingly stipulate for reasonable time extensions without compelling the Department to file unnecessary motions with the Court. Indeed, they have nothing to lose by so cooperating, for, lacking consent, the Department will necessarily be obliged to move for an extension, a motion which, adequately supported, will invariably be granted in any event. Certainly, the Court will not easily be persuaded to enter orders which, in effect, amount to default judgments against the Government.

31

After the answer is filed, motions for judgment on the pleadings or for summary judgment may be made.31 The general practice with respect to such motions is substantially the same as in any other Court. Since such motions may be dispositive of the case, they are calendared for argument before the Court sitting en banc at a regular monthly session and normally disposed of by a written opinion. The same is true of a motion to dismiss based solely upon the allegations of the petition. Frequent bases for such motions are (1) lack of jurisdiction over the subject matter, such as cases sounding in tort, (2) the six-year statute of limitations generally applicable to contract suits," and (3) failure to exhaust the available or required administrative remedies. In contract suits, (2) and (3) are the more troublesome problems.

34

With respect to the exhaustion doctrine, the contractor may be faced with certain dilemmas. If a dispute falls within the coverage of the standard form of Disputes article in his contract, the contractor is, of course, obliged to comply with the article, and the statute of limitations will not commence to run until the final step in the required administrative process is completed. Currently, the Disputes clause requires appeals only with respect to factual disputes.* But it is a bold contractor indeed who would undertake to determine for himself the often rather philosophical distinctions between a "question of fact" and a "question of law," or whether there is not really a mixed question of law or fact involved which would fall within the Disputes clause. Only in the plainest

36

20 Jones v. United States, 1 C. Cls. 383, 388 (1865). See also Truitt v. United States, 30 C. Cls. 19 (1895); Er Parte Russell, 80 U.S. 664, 668 (1871): “* * the government agents are at a great disadvantage in defending suits in the Court of Claims on account of their personal ignorance of the facts, and of the witnesses and evidence necessary to rebut the petitioner's case;

30 Rule 16(a).

31 The former practice whereby claimants were permitted to file motions for summary judgment at any time after the expiration of 40 days from the commencement of the action made it possible for such motions to be filed well before the Department knew anything about the case. The Department was thus faced with the often impossible situation of obtaining opposing affidavits and filing briefs only after seeking and obtaining the same extensions that would be required were it to answer. Now Rule 51(a) permits the filing of a motion for summary judgment by the claimant only after the filing of a responsive pleading by the Government. In this respect the Rules differ from the Federal Rules. Rule 56(a) of the Federal Rules permits a claimant to file such a motion at any time after the expiration of 20 days from the commencement of the action. See Jennings v. United States, C. Cls., October 9, 1957.

32 The Court has no original jurisdiction over suits sounding in tort. 28 U.S.C. 1491, 1504 Schillinger v. United States, 155 U.S. 163 (1894); Basso v. United States, 239 U.S. 602 (1916) Byers v. United States, 121 C. Cls. 40 (1951).

33 28 U.S.C. § 2501.

4 Sese v. United States, 125 C. Cls. 526 (1953); Electric Boat Co. v. United States, 81 C. Cls. 361 (1935).

35 See Joy, The Disputes Clause in Government Contracts, 25 Fordham L. Rev. 11 (1956). See John Kelley Co. v. Commissioner of Internal Revenue, 326 U.S. 521, 527 (1946), and particularly the quotation, in footnote 3 from Dickinson, Administrative Justice, C. III, p. 55, as follows:

"In truth, the distinction between 'questions of law' and 'questions of fact' really gives little help in determining how far the courts will review; and for the good reason that there is no fixed distinction. They are not two mutually exclusive kinds of questions, based upon a difference of subject matter. Matters of law grow downward into roots of fact, and matters of fact reach upward, without a break, into matters of law."