Proposed Rule Changes RCFC 8, 13, 15, and 62 Changes Based on FRCP New Rule 62.1 of a motion under RCFC 12(b), (e), or (f), whichever is earlier. (2) Other Amendments. In all other

Proposed Rule Changes Adopting Substantive Changes to FRCP

Scheduled to Become Effective December 1, 2009

RCFC 8, 13, 15, and 62.1

Substantive Changes Based on FRCP

Rules 8, 13, and 15

Rule 8. General Rules of Pleading* * * * *

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

pleading, a party must affirmativelystate any avoidance or affirmativedefense, including:• accord and satisfaction;• arbitration and award;• assumption of risk;• contributory negligence;• discharge in bankruptcy;• duress;• estoppel;• failure of consideration;• fraud;• illegality;• laches;• license;• payment;• release;• res judicata;• statute of frauds;• statute of limitations; and• waiver.

* * * * *

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

Rules Committee Notes* * * * *

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

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

* * * * *

Rule 13. Counterclaim* * * * *

(f) Omitted Counterclaim. The court maypermit a party to amend a pleading to add a

counterclaim if it was omitted throughoversight, inadvertence, or excusable neglector if justice so requires.

(g)(f) Crossclaim Against a Coparty. [Notused.]

(h)(g) Joining Additional Parties. [Notused.]

(i)(h) Separate Trials; Separate Judgments.If the court orders separate trials underRCFC 42(b), it may enter judgment ona counterclaim under RCFC 54(b) whenit has jurisdiction to do so, even if theopposing party’s claims have beendismissed or otherwise resolved.

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


2010 AmendmentFormer subdivision (f) was deleted in

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

* * * * *

Rule 15. A m e n d e d a n d S u p p l e m e n t a lPleadings

(a) Amendments Before Trial.(1) Amending as a Matter of Course. A

party may amend its pleadings once asa matter of course within:(A) before being served with a

responsive pleading 21 days afterservice; or

(B) within 20 days after serving thepleading if a responsive pleadingis not allowed and the action is notyet on the trial calendar if thepleading is one to which aresponsive pleading is required, 21days after service of a responsivepleading or 21 days after service

Substantive Changes Based on FRCP

New Rule 62.1

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 onlywith the opposing party’s writtenconsent or the court’s leave. The courtshould freely give leave when justice sorequires.

(3) Time to Respond. Unless the courtorders otherwise, any required responseto an amended pleading must be madewithin the time remaining to respond tothe original pleading or within 10 14days after service of the amendedpleading, whichever is later.

* * * * *

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


2010 AmendmentRCFC 15(a) has been amended in

accordance with the corresponding changes toFRCP(a) that became effective December 1, 2009.

* * * * *

Rule 62.1. Indicative Ruling on Motion forRelief That is Barred by a PendingAppeal

(a) Relief Pending Appeal. If a timely motionis made for relief that the court lacksauthority to grant because of an appeal thathas been docketed and is pending, the courtmay: (1) defer considering the motion;(2) deny the motion; or (3) state either that it would grant the

motion if the court of appeals remandsfor that purpose or that the motionraises a substantial issue.

(b) Notice to the Court of Appeals. Themovant must promptly notify the circuitclerk under Federal Rule of Appellate

Procedure Circuit Rule12.1 if the districtcourt states that it would grant the motion orthat the motion raises a substantial issue.

(c) Proceedings on Remand. The district courtmay decide the motion if the court of appealsremands for further proceedings.

(Added _____________________.)

Rules Committee Note2010 Adoption

RCFC 62.1 has been added to correspond tothe adoption of the same rule in the FRCP thatbecame effective December 1, 2009.

Proposed Rule Changes Consistent With Time-Computation Changes

to FRCP Scheduled to Become Effective December 1, 2009

RCFC 6, 12, 32, 42, 52, 53, 55, 59, 62, 65, and 68Appendices B, D, and F

Time-Computation Changes Based on FRCP

Rule 6

Current Version

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

(a) Computing Time. The following rulesapply in computing any time period specifiedin these rules:(1) Day of the Event Excluded. Exclude

the day of the act, event, or default thatbegins the period.

(2) Exclusions from Brief Periods.Exclude intermediate Saturdays,Sundays, and legal holidays when theperiod is less than 11 days.

(3) Last Day. Include the last day of theperiod unless it is a Saturday, Sunday,legal holiday, or—if the act to be doneis filing a paper in court—a day onwhich weather or other conditionsmake the clerk’s office inaccessible.When the last day is excluded, theperiod runs until the end of the next daythat is not a Saturday, Sunday, legalholiday, or day when the clerk’s officeis inaccessible.

(4) “Legal Holiday” Defined. As used inthese rules, “legal holiday” means:(A) the day set aside by statute for

observing New Year’s Day,Inauguration Day, Martin LutherK i n g J r . ’ s B i r t h d a y ,W a s h i n g t o n ’ s B i r t h d a y ,Memorial Day, IndependenceDay, Labor Day, Columbus Day,Veterans’ Day, ThanksgivingDay, or Christmas Day; and

(B) any other day declared a holidayby the President or Congress.

(b) Extending Time.* * * * *

(2) Exceptions. The court must not extendthe time to act under RCFC 52(b),54(d)(1), 59(b), (d), and (e), and 60(b),except as those rules allow.

* * * * *

Proposed Version

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

(a) Computing Time. The following rulesapply in computing any time period specifiedin these rules, in any court order, or in anystatute that does not specify a method ofcomputing time.(1) Period Stated in Days or a Longer

Unit. When the period is stated in daysor a longer unit of time: (A) exclude the day of the event that

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

intermediate Saturdays, Sundays,and legal holidays; and

(C) include the last day of the period,but if the last day is a Saturday,Sunday, or legal holiday, theperiod continues to run until theend of the next day that is not aSaturday, Sunday, or legalholiday.

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

the occurrence of the event thattriggers the period;

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

(C) if the period would end on aSaturday, Sunday, or legalholiday, the period continues torun until the same time on thenext day that is not a Saturday,Sunday, or legal holiday.

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

RCFC 6(a)(1), then the time forfiling is extended to the firstaccessible day that is not a


Rule 6

Current Version

(As revised and reissued May 1, 2002; asamended June 20, 2006, Nov. 3, 2008.)

Proposed Version

Saturday, Sunday, or legalholiday; or

(B) during the last hour for filingunder RCFC 6(a)(2), then thetime for filing is extended to thesame time on the first accessibleday that is not a Saturday,Sunday, or legal holiday.

(4) “Last Day” Defined. Unless adifferent time is set by a statute or courtorder, the last day ends:(A) for electronic filing, at midnight

in the court’s time zone; and(B) for filing by other means, when

the clerk’s office is scheduled toclose.

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

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

observing New Year’s Day,Martin Luther King Jr.’sB i r t h d a y , W a s h i n g t o n ’ sBirthday, Memorial Day,Independence Day, Labor Day,Columbus Day, Veterans’ Day,Thanksgiving Day, or ChristmasDay; and

(B) any other day declared a holidayby the President or Congress.

(b) Extending Time.* * * * *

(2) Exceptions. The court must not extendthe time to act under RCFC 52(b),54(d)(1), 59(b), (d), and (e), and 60(b),except as those rules allow.

* * * * *


Rule 6

Proposed Version

(As revised and reissued May 1, 2002; asamended June 20, 2006, Nov. 3, 2008,____________.)


2010 AmendmentRCFC 6 has been amended in accordance

with the corresponding changes to FRCP 6 thatbecame effective December 1, 2009. Thesechanges govern the computation of any timeperiod specified in these rules, in any court order,or in any statute that does not specify a method ofcomputing time. For a comprehensiveexplanation of the time-computation changes, seethe 2009 Committee Note to FRCP 6.

In addition, paragraph (b)(2) has beenamended to delete the reference toRCFC 54(d)(1).


Rule 12

Rule 12. Defenses and Objections: When andHow Presented; Motion forJudgment on the Pleadings;Consolidating Motions; WaivingDefenses; Pretrial Hearing

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

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

(B) If the answer contains acounterclaim, offset, or plea offraud, a party must file an answerto the counterclaim, and may filea reply to the offset or plea offraud, within 20 21 days afterbeing served with the answer.

(C) If a reply to an answer or aresponsive pleading to a third-party complaint or answer isordered by the court, a party mustfile the reply or responsivepleading within 20 21 days afterbeing served with the order, unlessthe order specifies a differenttime.

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

sets a different time, serving a motionunder this rule or RCFC 56 alters theseperiods as follows:(A) if the court denies the motion, in

whole or in part, or postpones itsdisposition until trial, or if a partywithdraws the motion, theresponsive pleading must be filedby the later of:(i) 10 14 days after notice of the

court’s action or themotion’s withdrawal; or

(ii) the date the responseotherwise would have beendue.

(B) if the court grants a motion for a

more definite statement, theresponsive pleading must beserved within 10 14 days after themore definite statement is served.

* * * * *(e) Motion for a More Definite Statement. A

party may move for a more definitestatement of a pleading to which aresponsive pleading is allowed but which isso vague or ambiguous that the party cannotreasonably prepare a response. The motionmust be made before filing a responsivepleading and must point out the defectscomplained of and the details desired. If thecourt orders a more definite statement andthe order is not obeyed within 10 14 daysafter notice of the order or within the timethe court sets, the court may strike thepleading or issue any other appropriateorder.

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

responding to the pleading or, if aresponse is not allowed, within 20 21days after being served with thepleading.

* * * * *

(As revised and reissued May 1, 2002; asamended Nov. 3, 2008, _______________.)


2010 AmendmentThe time periods of 10 and 20 days formerly

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

* * * * *


Rules 32, 42, and 52

Rule 32. Using Depositions in CourtProceedings

(a) Using Depositions.* * * * *

(5) Limitations on Use.(A) Deposition Taken on Short

Notice. A deposition must not beused against a party who, havingreceived less than 11 14 days’notice of the deposition, promptlymoved for a protective orderunder RCFC 26(c)(1)((B)requesting that it not be taken orbe taken at a different time orplace—and this motion was stillpending when the deposition wastaken.

* * * * *(d) Waiver of Objections.

* * * * *(3) To the Taking of the Deposition.

* * * * *(C) Objection to a Written Question.

An objection to the form of awritten question under RCFC 31is waived if not served in writingon the party submitting thequestion within the time forserving responsive questions or, ifthe question is a recross-question,within 5 7 days after being servedwith it.

* * * * *

(As revised and reissued May 1, 2002; asamended Nov. 3, 2008, ________________.)


2010 AmendmentThe time periods of 11 and 5 days formerly

set forth in RCFC 32 have been changed to 14 and7 days, respectively, in accordance with thecorresponding changes to FRCP 32 that became

effective December 1, 2009.

* * * * *

Rule 42. Consolidation; Separate Trials* * * * *

(c) Separate Determinations of Liability andDamages.

* * * * *(2) Motion for Reconsideration. The

parties may file a motion forreconsideration within 10 14 days aftera separate determination of liability.

(As revised and reissued May 1, 2002; asamended Nov. 3, 2008, ________________.)


2010 AmendmentThe time period of 10 days formerly set forth

in RCFC 42(c)(2) has been changed to 14 days inaccordance with the FRCP’s general guidelinesfor time computation that became effectiveDecember 1, 2009.

* * * * *

Rule 52. Findings and Conclusions by theCourt; Judgment on Partial Findings

* * * * * (b) Amended or Additional Findings. On a

party’s motion filed no later than 10 30 daysafter the entry of judgment, the court mayamend its findings—or make additionalfindings—and may amend the judgmentaccordingly. The motion may accompany amotion for a new trial under RCFC 59.

* * * * *




Rules 53, 55, and 59

2010 AmendmentRCFC 52(b) has been amended to change the

period for filing a post-judgment motion from 10to 30 days in accordance with the correspondingchange to FRCP 52(b) that became effectiveDecember 1, 2009. RCFC 6(b) continues toprohibit any extension of the time allowed underthis rule.

* * * * *

Rule 53. Masters* * * * *

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

* * * * *(2) Time to Object or Move to Adopt or

Modify. A party may file objectionsto—or a motion to adopt ormodify—the master’s order, report, orrecommendations no later than 20 21days after a copy is served, unless theassigned judge sets a different time.

* * * * *

(As revised and reissued May 1, 2002; asamended July 1, 2004, Nov. 3, 2008,__________________.)



in RCFC 53(f)(2) has been changed to 21 days inaccordance with the corresponding change toFRCP 53(f)(2) that became effective December 1,2009.

* * * * *

Rule 55. Default; Default Judgment* * * * *

(b) Entering a Default Judgment. * * * * *

(2) By the Court. The party must apply to

the court for a default judgment. Adefault judgment may be entered only ifthe claimant establishes a claim or rightto relief by evidence that satisfies thecourt. A default judgment may beentered against a minor or incompetentperson only if represented by a generalguardian, conservator, or other likefiduciary who has appeared. If theparty against whom a default judgmentis sought has appeared personally or bya representative, that party or itsrepresentative must be served withwritten notice of the application at least3 7 days before the hearing. The courtmay conduct hearings or make referralswhen, to enter or effectuate judgment,it needs to:

* * * * *

(As revised and reissued May 1, 2002; asamended Nov. 3, 2008, __________________.)



in RCFC 55(b)(2) has been changed to 7 days inaccordance with the corresponding change toFRCP 55(b)(2) that became effective December 1,2009.

* * * * *

Rule 59. New Trial; Reconsideration; Alteringor Amending a 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 nolater than 10 30 days after the entry ofjudgment.

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


Rules 62 and 65

Reasons Not in the Motion. No laterthan 10 30 days after the entry ofjudgment, the court, on its own, mayorder a new trial for any reason thatwould justify granting one on a party’smotion. After giving the parties noticeand an opportunity to be heard, thecourt may grant a timely motion for anew trial for a reason not stated in themotion. In either event, the court mustspecify the reasons in its order.

(e) Motion to Alter or Amend a Judgment. Amotion to alter or amend a judgment must befiled no later than 10 30 days after the entryof the judgment.



2010 AmendmentRCFC 59 has been amended to change the

period for filing post-judgment motions from 10to 30 days in accordance with the correspondingchanges to FRCP 59 that became effectiveDecember 1, 2009. RCFC 6(b) continues toprohibit extension of the time allowed under thisrule.

* * * * *

Rule 62. Stay of Proceedings to Enforce aJudgment

(a) Automatic Stay; Exceptions forInjunctions and Patent Accountings.Except as stated in this rule, no executionmay issue on a judgment, nor mayproceedings be taken to enforce it, until 1014 days have passed after its entry. Butunless the court orders otherwise, thefollowing are not stayed after being entered,even if an appeal is taken:

* * * * *




in RCFC 62(a) has been changed to 14 days inaccordance with the corresponding change toFRCP 62(a) that became effective December 1,2009.

* * * * *

Rule 65. Injunctions and Restraining Orders* * * * *

(b) Temporary Restraining Order. * * * * *

(2) Contents; Expiration. Everytemporary restraining order issuedwithout notice must state the date andhour it was issued; describe the injuryand state why it is irreparable; statewhy the order was issued withoutnotice; and be promptly filed in theclerk’s office and entered in the record.The order expires at the time afterentry—not to exceed 10 14 days—thatthe court sets, unless before that timethe court, for good cause, extends it fora like period or the adverse partyconsents to a longer extension. Thereasons for an extension must beentered in the record.

* * * * *

(As revised and reissued May 1, 2002; asamended Nov. 3, 2008, _________________.)



in RCFC 65(b)(2) has been changed to 14 days inaccordance with the corresponding change to


Rule 68

FRCP 65(b)(2) that became effective December 1,2009.

* * * * *

Rule 68. Offer of Judgment(a) Making an Offer; Judgment on an

Accepted Offer. More than 10 At least 14days before the date set for trial begins, aparty defending against a claim may serve onan opposing party an offer to allow judgmenton specified terms, with the costs thenaccrued. If, within 10 14 days after beingserved, the opposing party serves writtennotice accepting the offer, either party maythen file the offer and notice of acceptance,plus proof of service. The clerk must thenenter judgment.

* * * * *(c) Offer After Liability Is Determined.

When one party’s liability to another hasbeen determined but the extent of liabilityremains to be determined by furtherproceedings, the party held liable may makean offer of judgment. It must be servedwithin a reasonable time—but at least 10 14days—before the date set for a hearing todetermine the extent of liability.

* * * * *

(As revised and reissued May 1, 2002; asamended Nov. 3, 2008, _________________.)


2010 AmendmentRCFC 68 has been amended in accordance

with the corresponding changes to FRCP 68 thatbecame effective December 1, 2009, (i) directingthat the time for service of an offer of judgment bemeasured from the date set for trial or hearingrather than from the date the trial or hearing isexpected to begin; and (ii) extending the timeperiods of 10 days to 14 days.


Appendix B - Vaccine Rule 19

Appendix B

Current Version

* * * * *Rule 19. Computing and Extending Time(a) Computing Time. The following criteria

apply in computing any time period specifiedin these rules, in an order of the specialmaster or the court, or in any applicablestatute: (1) Day of the Event Excluded. Exclude

the day of the act, event, or default thatbegins the period.

(2) Exclusions from Brief Periods.Exclude intermediate Saturdays,Sundays, and legal holidays when theperiod is less than 11 days. For legalholidays, see RCFC 6(a)(4).

(3) Last Day. Include the last day of theperiod unless it is a Saturday, Sunday,or legal holiday or—if the act to bedone is filing a paper in court—a dayon which weather or other conditionsmake the clerk’s office inaccessible.When the last day is excluded, theperiod runs until the end of the next daythat is not a Saturday, Sunday, legalholiday, or day when the clerk’s officeis inaccessible.

* * * * *

(As revised and reissued May 1, 2002, asamended ___________.)

Proposed Version

* * * * *Rule 19. Computing and Extending Time(a) Computing Time. The following criteria

apply in computing any time period specifiedin these rules, in an order of the specialmaster or the court, or in any applicablestatute that does not specify a method ofcomputing time.(1) Period Stated in Days or a Longer

Unit. When the period is stated in daysor a longer unit of time: (A) exclude the day of the event that

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

intermediate Saturdays, Sundays,and legal holidays (for legalholidays, see RCFC 6(a)(6)); and

(C) include the last day of the period,but if the last day is a Saturday,Sunday, or legal holiday, theperiod continues to run until theend of the next day that is not aSaturday, Sunday, or legalholiday.

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

occurrence of the event thattriggers the period;

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

(C) if the period would end on aSaturday, Sunday, or legalholiday, the period continues torun until the same time on the nextday that is not a Saturday, Sunday,or legal holiday.

(3) Inaccessibility of the Clerk’s Office.Unless the court orders otherwise, if the



Proposed Version

clerk’s office is inaccessible:(A) on the last day for filing under

Vaccine Rule 19(a)(1), then thetime for filing is extended to thefirst accessible day that is not aSaturday, Sunday, or legalholiday; or

(B) during the last hour for filingunder Vaccine rule 19(a)(2), thenthe time for filing is extended tothe same time on the firstaccessible day that is not aSaturday, Sunday, or legalholiday.

(4) “Last Day” Defined. Unless adifferent time is set by a statute or courtorder, the last day ends:(A) for electronic filing, at midnight in

the court’s time zone; and(B) for filing by other means, when

the clerk’s office is scheduled toclose.

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

* * * * *

(As revised and reissued May 1, 2002, asamended _________, _____________.)



Rule 31. Motion for ReconsiderationWithin 10 30 days after entry of judgment, eitherparty may file a motion for reconsideration of theassigned judge’s decision in accordance withRCFC 59.

(As revised and reissued May 1, 2002, asamended ___________, ______________.)


2010 AmendmentsRule 19. Subdivision (a) (“Computing

Time”) has been amended in accordance with thecorresponding changes to RCFC 6.

Rule 31. The time period for filing a motionfor reconsideration has been changed from 10 to30 days in accordance with the correspondingchange to RCFC 59.


Appendix D

Appendix D

* * * * *9. Rehearing. Within 10 14 days after

service of the report of the review panel, any partymay file a motion for rehearing to alter or amendthe report. The motion shall state withparticularity any contention of law or fact whichthe movant believes has been overlooked ormisapprehended, and shall contain arguments insupport thereof. Oral argument in support of themotion shall not be permitted. No response to amotion for rehearing is required but will beconsidered if filed within 10 14 days after the datethe motion for rehearing is served. No timeextension shall be allowed for filing such aresponse. If the motion for rehearing is granted,the review panel shall take such further action asin its discretion may be required by thecircumstances of the particular case. The chiefjudge will entertain no appeals or requests forreview of any rulings or actions by a hearingofficer or a review panel.

* * * * *


2010 AmendmentThe time periods of 10 days formerly set

forth in paragraph 9 have been changed to 14 daysin accordance with the FRCP’s general guidelinesfor time computation that became effectiveDecember 1, 2009.


Appendix F

Appendix F

* * * * *Rule 2. Commencement of Partnership Action

* * * * *(f) Notice of Filing.

(1) Complaints by the Tax MattersPartner. Within 5 7 days after receiving theNotice of Assignment from the clerk, the taxmatters partner shall serve notice of thefiling of the complaint on each partner in thepartnership as required by Code Section6223(g). Said notice shall include the docketnumber assigned to the case by the court andthe date of the Notice of Assignment.

(2) Complaints by Other Partners.Within 5 7 days after receiving the Notice ofAssignment from the clerk, the complainantshall serve a copy of the complaint on the taxmatters partner and at the same time notifythe tax matters partner of the docket numberassigned to the case by the court and of thedate of the Notice of Assignment. Within 57 days after receiving a copy of thecomplaint and of the aforementionednotification from the complainant, the taxmatters partner shall serve notice of thefiling of the complaint on each partner in thepartnership as required by Code Section6223(g). Said notice shall include the docketnumber assigned to the case by the court andthe date of the Notice of Assignment.(g) A Copy of the Complaint to Be

Provided to All Partners. Upon request by anypartner in the partnership as referred to in CodeSection 6231(a)(2)(A), the tax matters partnershall, within 10 14 days after receipt of suchrequest, make available to such partner a copy ofany complaint filed by the tax matters partner orby any other partner.

* * * * *


2010 Amendment

The time periods of 5 and 10 days formerlyset forth in Rule 2 have been changed to 7 and 14days, respectively, in accordance with the FRCP’sgeneral guidelines for time computation thatbecame effective December 1, 2009.

Substantive Changes Proposed by the Court

RCFC 14, 23, 32, 54, and 83.1Vaccine Rule 5


Rule 14

Rule 14. Third-Party Practice* * * * *

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

its own, may notify any person with thelegal capacity to sue or to be sued whois alleged to have an interest in thesubject 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 benotified; and

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

(iii) contain, as attachments,copies of all pleadings thathave been filed in the suit.

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

motion for notice at the timethe complaint is filed.

(ii) The United States must fileany motion for notice on orbefore the date the answeris required to be filed.

(iii) For good cause shown, thecourt may allow a motionfor notice to be filed at alater time.

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

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

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

person notified;(ii) identify the time within

which the person may seekintervention to assert aninterest in the suit; and

(iii) state indicate that the notice

is accompanied by copies ofall pleadings that have beenfiled in the suit.

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

to the moving party for service,at the moving party’s expense, onthe person to be notified;

(B) the moving party must serve thenotice, together with copies of allpleadings that have been filed inthe suit, by registered or certifiedmail, return receipt requested;and

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

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

request, deliver to the clerkcopies of the party’s pleadings;

(B) the clerk, upon receipt of thepleadings, must:(i) issue a notice as specified in

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

Attorney General forservice in accordance withRCFC 14 (b)(4)(B) and (C).

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

* * * * *

(As revised and reissued May 1, 2002; asamended Nov. 3, 2008, __________________.)


Rule 14


2010 AmendmentThe requirement formerly set forth in

RCFC 14(b)(2)(A) that a motion for notice must“contain, as attachments, copies of all pleadingsthat have been filed in the suit” has been strickenin favor of requiring that such copies be providedby the moving party when serving the noticeunder RCFC 14(b)(4)(B).


Rule 23

Rule 23. Class Actions* * * * *

(g) Class Counsel. (1) Appointing Class Counsel. Unless a

statute provides otherwise, a court thatcertifies a class must appoint classcounsel. In appointing class counsel,the court:(A) must consider:

(i) the work counsel hasdone in identifying orinvestigating potentialclaims in the action;

(ii) counsel’s experience inhandling class actions,other complex litigation,and the types of claimsasserted in the action;

(iii) counsel’s knowledge ofthe applicable law; and

(iv) the resources that counselw i l l c o m m i t t orepresenting the class;

(B) may consider any other matterpertinent to counsel’s ability tofairly and adequately accuratelyrepresent the interests of theclass;* * * * *

(As revised and reissued May 1, 2002; asamended July 1, 2004, Nov. 3, 2008,__________________.)


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

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


Rule 32

Rule 32. Using Depositions in CourtProceedings

(a) Using Depositions.* * * * *

(4) Unavailable Witness. A party mayuse for any purpose the deposition ofa witness, whether or not a party, if thecourt finds: (A) that the witness is dead;(B) on motion and notice, that the

witness is more than 100 milesfrom the place of hearing or trialor is outside the United States,unless it appears that thewitness’s absence was procuredby the party offering thedeposition the court also finds:(i) that the witness’s absence

was procured by the partyoffering the deposition; or

(ii) that it is not desirable—inthe interest of justice andwith due regard to theimportance of l i vet e s t i mo n y i n o p e ncourt—to permit thedeposition to be used;

(C) that the witness cannot attend ortestify because of age, illness,infirmity, or imprisonment;

(D) that the party offering thedeposition could not procure thewitness’s attendance bysubpoena; or

(E) on motion and notice, thatexceptional circumstances makeit desirable—in the interest ofjustice and with due regard tothe importance of live testimonyin open court—to permit thedeposition to be used.

(As revised and reissued May 1, 2002; asamended Nov. 3, 2008, __________.)


2010 AmendmentRCFC 32(a)(4) has been amended to more

closely parallel the text of its FRCP counterpart,except that the reference in paragraph (4)(B) tothe 100-mile limitation on the use at trial of thedeposition of a witness has been eliminated so asto reinforce the court’s clear preference for livetestimony.


Rule 54

Rule 54. Judgment; Costs* * * * *

(d) Costs; Attorney’s Fees.(1) Costs Other Than Attorney’s Fees.

Cost s—othe r t han a t torney’ sfees—should be allowed to theprevailing party to the extent permittedby law. See 28 U.S.C. § 2412(a).

* * * * *(C) Procedures Applicable to a Bill of

Costs. (i) Objection. An objection to

some or all of the requestedcosts may be filed within 28days after service of the Billof Costs.

(ii) Reply. A reply to anobjection may be filed within7 days after service of theobjection.

(iii) Action by the Clerk. Unless aconference is scheduled bythe clerk, the taxation ordisallowance of costs will bemade by the clerk on theexisting record.

(iv) Court Review. A motion forreview of the clerk’s actionmay be filed with the courtwithin 14 days after action bythe clerk. Unless the courtorders otherwise, the reviewwill be made on the existingrecord.

(v) Time Extensions. Noextensions of time will bepermitted under this rule andthe failure of the prevailingparty to file a Bill of Costs ina timely manner willconstitute a waiver of anyclaim for costs.

* * * * *(2) Attorney’s Fees.

* * * * *

(D) Procedures Applicable to a Motionfor Attorney’s Fees. (i) Response. A response to a

motion for attorney’s feesmay be filed within 28 14days after service of themotion.

(ii) Reply. A reply to a responsemay be filed within 14 daysafter service of the response.

(iii) Subsequent Procedures.After the filing of a responseand a reply to a motion forattorney’s fees, the court willenter an order prescribing theprocedures to be followed.

* * * * *

(As revised and reissued May 1, 2002; asamended July 1, 2004, Nov. 3, 2008, _________.)


2010 AmendmentRCFC 54(d) has been amended by deleting

item (1)(C)(v) (“Time Extensions”) in its entirety.In addition, the 14-day time period formerly setforth in item (2)(D)(i) for filing a response to amotion for attorney’s fees has been restored to 28days.


Rule 83.1

Rule 83.1. Attorneys* * * * *

(b) Admission to Practice.(1) Qualifications. Any person of good

moral character who is a member ingood standing of the bar of the SupremeCourt of the United States, the UnitedStates Court of Appeals for the FederalCircuit, or the highest court of any U.S.state, territory, or possession or theDistrict of Columbia may be admitted topractice before this court.

(2) Procedures.(A) In General. An attorney may be

admitted to practice before thiscourt by oral motion or by verifiedapplication. (i) By Oral Motion in an

Admissions Proceeding. Amember of the bar of thiscourt may make an oralmotion to admit an applicantto the bar during the monthlya t t o r n e y a d m i s s i o n sproceeding held at theHoward T. Markey NationalCourts Building, 717 MadisonPlace, NW, Washington, DC20005, at the times posted onthe court’s website atwww.uscfc.uscourts.gov(generally 10:00 a.m. onThursday of the first full weekin every month). Motionswill be heard in a courtroomposted in the lobby of thecourthouse on the day of theproceeding. Applicants foradmission must appear in theclerk’s office no later than9:30 a.m. to:(I) pay the admission fee

s e t f o r t h i nRCFC 83.1(b)(4);

(II) complete a “Form forAdmission via Motioni n O p e n C o u r t ”(available on the court’swebsite); and fill outthe necessary form.

(III) present a certificate ofthe clerk of the highestcourt of any U.S. state,territory, or possessionor the District ofColumbia which hasbeen issued within 30days and states that theapplicant is a memberin good standing of thebar of such court.

Applicants who for specialreasons are unable to appearfor admission on one of theposted dates should contactthe clerk’s office to makealternate arrangements.

(ii) By Oral Motion in aP r o c e e d i n g O u t s i d eWashington, DC. A memberof the bar of this court maymake an oral motion to admitan applicant to the bar duringa court proceeding before anyjudge of this court so long asthe applicant:(I) provides the judge with

a completed copy of averified application fora d m i s s i o n ( s e eAppendix of Forms,Form 1); or

(II) advises the judge of thea p p l i c a n t ’ squalifications as setf o r t h i n R C F C8 3 . 1 ( b ) ( 1 ) , a n drepresents that theapplicant will promptly

http://www.uscfc.uscourts.gov

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


Rule 83.1

apply to the clerk foradmission by verifiedapplication as providedi n R C F C8 3 . 1 ( b ) ( 2 ) ( a ) ( i i i )83.1(b)(2)(C).

(iii) By Verified Application. Anattorney may seek admissionto practice before this courtwithout appearing in personby presenting the clerk with averified application foradmission (see Appendix ofForms, Form 1) along with thefollowing documentation:(I) a certificate of the

clerk of the highestcourt of any U.S. state,territory, or possessionor the District ofColumbia which hasbeen issued within 30days and states that theapplicant is a memberin good standing of the

bar of such court. ajudge or of the clerk ofany of the courtsspecified in RCFC83.1(b)(1) indicatingthat the applicant is amember i n goodstanding of the bar ofsuch court;

(II) two letters or signedstatements of membersof the bar of this courtor of the Supreme Courtof the United States, notrelated to the applicant,affirming that theapplicant is personallyknown to them, that theapplicant possesses allof the qualifications

required for admissionto the bar of this court,that they have examinedthe application, and thatthe applicant's personala n d p r o f e s s i o n a lcharacter and standingare good; and

(III) an oath in the formprescribed in RCFC83.1(b)(3) signed by thea p p l i c a n t a n dadministered by anofficer authorized toadminister oaths in theU.S. state, territory, orpossession or theDistrict of Columbiawhere the oath is given,or as permitted by 28U.S.C. § 1746.

* * * * *(5) Foreign Attorneys.

* * * * *(B) Procedures. A member of the bar

of this court must file with theclerk a written motion to admit theapplicant at least 3 7 days prior tothe court’s consideration of themotion. In the case of such anadmission, an oath and fee are notrequired.

* * * * *

(As revised and reissued May 1, 2002; asamended Aug. 2, 2005, June 20, 2006, Nov. 3,2008, ________________.)


2010 AmendmentRCFC 83.1 has been amended to restate the

qualifications for admission to practice before thecourt (paragraph (b)(1)) and the procedures foradmission, whether by oral motion or by verified


Rule 83.1

application (paragraph (b)(2)). Specifically,admission to the highest court of any U.S. state,territory, or possession or the District of Columbiawill be recognized as the only acceptablequalification for admission to practice before thiscourt and confirmation of an applicant’sadmission status will require submission of acurrent certificate of good standing prepared bythe clerk of such court.

In addition, the time period of 3 daysformerly set forth in RCFC 83.1(b)(5)(B) has beenchanged to 7 days in accordance with the FRCP’sgeneral guidelines for time computation thatbecame effective December 1, 2009.



Appendex B

Rule 5. Preliminary Status Conference andTentative Findings and Conclusions

(a) In General. The special master will hold astatus conference within 30 days after thefiling of respondent’s report under VaccineRule 4(c) to: (1) afford the parties an opportunity to

address each other’s positions; (2) review the materials submitted and

evaluate the parties’ respectivepositions; and

(3) present tentative findings andconclusions.

(b) Scheduling Order. At the conclusion ofthis status conference, the special mastermay issue a scheduling order outlining thenecessary proceedings for resolving theissues presented in the case.

(c) Sanctions. (1) Authority.

(A) In General. To ensure effectivecase management, the specialmaster may by order impose ona party or a party’s attorney anyn o n c o n t e m p t s a n c t i o na u t h o r i z e d b y R C F C37(b)(2)(A)(ii)–(v) and mayrecommend to an assigned judgea contempt sanction against aparty or a party’s attorney.

(B) Imposing Fees and Costs.Instead of or in addition to anyother sanction, the specialmaster is authorized underRCFC 16(f)(2) to order theparty, its attorney, or both top a y t h e r e a s o n a b l eexpenses—including attorney’sfees—incurred because of anyn o n c o mp l i a n c e w i t h ascheduling or other pretrialorder unless the noncompliancewas substantially justified or

other circumstances make anaward of expenses unjust.

(2) Contents of the Order. The specialmaster’s order must describe thesanctioned conduct and explain thebasis for the sanction.

(3) Review. An order by a special masterimposing a sanction will be reviewableby an assigned judge on motion by thesanctioned party or the sanctionedparty’s attorney either: (A) upon the filing of the special

master’s decision; or (B) upon the filing of an order

concluding proceedings.

(As revised and reissued May 1, 2002; asamended _______________.)


2010 AmendmentRule 5. Subdivision (c) (“Sanctions”) was

added to formalize the special master’s existingscheduling and case management authority toimpose on a party or a party’s attorney any of thesanctions authorized by RCFC 37(b)(2)(A)(ii)–(v)and/or to require, as authorized by RCFC 16(f)(2),the payment of “reasonable expenses—includingattorney’s fees—incurred because of anynoncompliance with a scheduling or other pretrialorder.” In addition, subdivision (c) authorizes thespecial master, in appropriate cases, torecommend to an assigned judge the initiation ofcontempt proceedings against a party or a party’sattorney.

Documents

Proposed Rule Changes RCFC 8, 13, 15, and 62 Changes Based on FRCP New Rule 62.1 of a motion under RCFC 12(b), (e), or (f), whichever is earlier. (2) Other Amendments. In all other