United States Code: Rules of the Supreme Court of the

APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

ADOPTED JUNE 12, 1967, EFFECTIVE OCTOBER 2, 1967, AS AMENDED TO DECEMBER 31, 1969

TABLE OF CORRESPONDING SUPREME COURT tULES

This tablo shows corresponding relationshlip between the rules effectiveJuly I, 1925 the rules elective July 1, l08, tile rules effective Feb. 27,1939, the rules effective July 1, 1954, and the rules effective Oct. 2, I07.

1925 1928 1939 1954 1967

I5,6,8

729

9,8916,20,24,35, 44

13,1415, 16

17,26,3637

3238

4835,43

3940-42

445550

62'i758

25,59601828

19,21-24,27,36

11,222028191925

ii

40

301

15,6,8

7

9

10,20,24,35,44

13,1415,16

17,26,3627

32384835,43

3940-42

445556

52,L758

25.596618

2819,21-24,27.

3611,22

2028191925

4

36261

PART I.-THE COURTRule

1. Clerk.2. Library.3. Term.4. Sessions, quorum, and adjournments.

PART Ir.-ATORNEYS AND COUNSELLORS

5. Admission to the bar.0. Admission of foreign counsel.7. Clerks to justices not to practice.8. Disbarment.

PART IIr.-ORIGINAL JURISDICTION

9. Procedure in original actions.

PART IV.-JURSDICTION ON APPEAL10. Appeal-how taken-parties.11. Appeal-time for taking.

Page 2227

Rule12. Designation and certification of record.13. Docketing cases.14. Dismissing appeals for non-prosecution.15. Jurisdictional statement.10. Motion to dismiss or affirm.17. Use of single appendix.18. Supersedeas on appeal.

PART V.-JuRISDICTION ON WRIT OF CERTIORARI

19. Considerations governing review on certiorari.2u. Certiorari to a court of appeals before judgnment.21. Review on certiorari-how sought-parties.22. Review on certiorari-time for petitioning.23. The petition for certiorari.24. Brief in opposition-reply-supplemental briefs.25. Order granting or denying certiorari.26. Use of single appendix.27. Stay pending review on certiorari.

PART VI.-JURISDICTION OF CERTIFIED QUESTIONS

28. Questions certified by a court of appeals or by theCourt of Claims.

29. Procedure in certified cases.

PART VIr.-JURISDICTION TO ISSUE EXTRAORDINARY WRITS

30. Considerations governing issuance of extraordinarywrits.

31. Procedure on applications for extraordinary writs.32. Certiorari to correct diminution of record abollshed.

PART VIr.-PRACTICE

33. Service and special rule where constitutionality of actof Congress in issue.

34. Computation and enlargement of time.35. Motions.36. Printing of records.37. Translations.38. Models, diagrams, and exhibits of material.39. Form of appendices, petitions, briefs, etc.40. Briefs-in general.41. Briefs on the merits-time for filing.42. Briefs of an amicus curiae.43. Call and order of the calendar.44. Oral argument.45. Submission on briefs by one or both parties without

oral argument.46. Joint or several appeals or petitions for writs of

certiorari; summons and severance abolished.47. Form of typewritten papers.48. Death, substitution, and revivor-public officers, sub-

stitution and description.49. Custody of prisoners in habeas corpus proceedings.50. Applications to individual justices; practice in

chambers.51. Stays.52. Fees.

PART IX.-SPECIAL PROCEEDINGS

53. Proceedings in forma pauperls.54. Veterans' and scamen's cases.

PART X.-DISpOsrrION OF CAUSES

55. Opinions of the court.56. Interest and damages.57. Costs.58. Rehearings.59. Process; mandates.60. Dismissing causes.

TITLE 28, APPENDIX.-RULES OF THE SUPRE ME COURT

PART XI.-APPLICATION OF TERMSRule61. Term "state court" includes Supreme Court of Puerto

Rico.PART XII.-rFFEcrTE DATE

62. Effective date of amended rules.

PART I.-TnE COURT

Rule 1. Clerk.

I. The clerk of this court shall reside and keel)the office at the seat of the National Government,and he shall not practice as attorney or counsellorin any court, while he continues in office.

2. The clerk shall not permit any original or cer-tifled record or paper to be taken from the office,except temporarily for purposes of printing, and ex-cept, on proper application from counsel or from tieclerk or the presiding judge of a court below whosejudgment is sought to be reviewed, for return to suchcourt, after the conclusion of the proceedings inthis court. Original or file copies of pleadings, papers,or briefs may not be withdrawn by litigants.

3. The clerk's office will be open from 9:00 A.M. to5:00 P.M. Mondays through Fridays, and from 9:00A.M. to noon on Saturdays, legal holidays excepted.

Rule 2. Library.

1. The library for the bar shall be open to membersof the bar of this court, to members of Congress, andto law officers of the executive or other departmentsof the Government.

2. The library shall be open during such timesas the reasonable needs of the bar require and shallbe governed by the regulations made by the librarianwith the approval of the chief justice.

3. Books may not be removed from the building.

Rule 3. Term.1. The court will hold an annual term commenc-

ing on the first Monday in October of each year andmay hold such adjourned or special terms as maybe necessary.

2. The court will at every term announce the dateafter which no case will be called for argument, orbe submitted for decision at that term, unless other-wise ordered for special cause shown.

3. At the end of each term, all cases on the docketshall be continued to the next term.

Rule I. Sessions, quorum, and adjournments.

1. Open sessions of tie court will be held at tena.m. on the first Monday in October of each year,and thereafter as announced by the court. Whenthe court is in session to hear arguments, it sits fromten until noon; recesses until half-past twelve, andadjourns for the day at half-past two.

2. Unless otherwise ordered the court will notschedule arguments on Fridays or Saturdays.

3. In the absence of a quorum, on any day ap-pointed for holding a session of the court, the justicesattending (or, if no justice is present, the clerk or adeputy clerk) may adjourn the court until there isa quorum.

4. The court may, in appropriate Instances, directthe clerk or the marshal to announce recesses andadJournment3.

PART I.-ATTORNEYS AND COUNSELLORS

Rule 5. Admission to the bar.

1. It shall be requisite to the admission of attor-neys or counsellors to practice in this court, thatthey shall have been such for three years past inthe highest court of a State, Territory, District, Com-monwealth, or Possession, and that their privateand professional characters shall appear to be good.

2. In advance of appearing for admission, eachapplicant shall file with the clerk (1) a certificatefrom the presiding judge or clerk of the proper courtevidencing his admission to practice there andthat lie is presently in good standing, and (2) hispersonal statement, on the form approved by thecourt and furnished by the clerk, which shall be in-dorsed by two members of the bar of this court whoare not related to the applicant.

3. Admissions will be granted only upon oral mo-tion by a member of the bar in open court, andupon his assurance that he is satisfied that the ap-plicant possesses the necessary qualifications.

4. Upon being admitted, each applicant shall takeand subscribe the following oath or affirmation, viz:

I, ------------------- , do solemnly swear (oraffirm) that I will demean myself, as an attorneyand counsellor of this court, uprightly, and accord-ing to law; and that I will support the Constitutionof the United States.

See Rule 52(d) for fee required.

Rule 6. Admission of foreign counsel.

An attorney, barrister, or advocate who is qualifiedto practice in the courts of any foreign state may bespecially admitted to the bar of this court for pur-poses limited to a particular case. He shall not,however, be authorized to act as attorney of record.In the case of such applicants, the oath shall not berequired and there shall be no fee. Such admissionsshall be only on motion of a member of the bar ofthis court, notice of which signed by such memberand reciting all relevant facts shall be filed with theclerk at least three days prior to the motion.

Rule 7. Clerks to justices not i practice.

No one serving as a law clerk or secretary to ajustice of this court shall practice as an attorneyor counsellor in any court or before any agency ofgovernment while continuing in that position; norshall he after separating from that position practiceas an attorney or counsellor in this court until twoyears have elapsed after such separation: nor shallhe ever participate, by way of any form of profes-sional consultation and assistance, in any case thatwas pending in this court during the period that heheld such position.

Rule 8. Disbarment

Where it is shown to the court that any memberof its bar has been disbarred from practice in anyState, Territory, District, Commonwealth, or Pos-session, or has been guilty of conduct unbecominga member of the bar of this court, he will be forth-

with suspended from practice before this court. Hewill thereupon be afforded the opportunity to showgood cause, within forty days, why he should not bedisbarred. Upon hL- response to the rule to show

Page 2228Rule 1

TITLE 28, APPENDIX.-RULES OF THE SUPREME COURT

cause, or upon the expiration of the forty days if

no response is made, the court will enter an appro-priate order; but no order of disbarment will be en-

tered except with the concurrence of a majority of

the justices participating.

PART III.-ORIGINAL JURISDICTION

Rule 9. Procedure in original actions.

1. This rule applies only to actions within the

original jurisdiction of the court under the Consti-tution. Original applications for writs in aid of the

court's appellate jurisdiction are governed by Part

VII of these rules.2. The form of pleadings and motions in original

actions shall be governed, so far as may be, by theFederal Rules of Civil Procedure, and in other re-

spects those rules, where their application is appro-priate, may be taken as a guide to procedure in orig-inal actions in this court.

3. The initial pleading in any original action shallbe prefaced by a moton for leave to file such plead-ing, and both shall be printed in conformity withRule 39. A brief in support of the motion for leaveto file, which shall comply with Rule 39, may be filedwith the motion and pleading. Sixty copies of eachdocument, with proof of service as prescribed byRule 33, are required, except that, where the adverseparty is a State, service shall be made on tle gov-ernor and attorney general of such State.

4. The case will be placed upon the originaldocket when the motion for leave to file is filed withthe clerk. The docket fee must be paid at that time,and the appearance of counsel for the plaintiffentered.

5. The adverse party or parties may, within sixtydays after receipt of the motion for leave to file andallied documents, file sixty printed copies of a briefor briefs in opposition to such motion, which shallconform to Rule 39. When such brief or briefs inopposition have been filed, or the time within whichthey may be filed has expired, tle motion, pleadingand briefs shall be distributed to the court by theclerk. The court may thereafter grant or deny themotion or set it down for argument.

6. Additional pleadings may be filed, and subse-quent proceedings had, as the court shall direct.

7. Any process against a State issued from thecourt in an original action shall be served on the gov-ernor and attorney general of such state.

8. A summons issuing out of this court in any

original action shall be served on the defendantsixty days before the return day set out therein;

and if the defendant, on such service of the sum-mons, shall not respond by the return day, the

plaintiff shall be at liberty to proceed ex partc.

PART IV.-JuRIsDICTION ON APPEAL

Rule 10. Appeal-how laken-parties.

1. An appeal permitted by law to this court shall

be taken by filing a notice of appeal, in the form and

at the placed prescribed by this rule.

2. The notice of appeal shall specify the partiestaking the appeal, shall designate the judgment or

part thereof appealed from, giving the time of Its

entry, and shall specify the statute or statutes under

33-381 O--70-vol. 2-44

which the appeal to this court is taken A copy ofthe notice of appeal shall be served on all parties tothe proceeding in the court where the judgmentappealed from was issued, in the manner prescribedby Rule 33, and proof of such service shall be filedwith the notice of appeal.

3. If the appeal is taken from a federal court, thenotice of appeal shall be filed with the clerk of suchcourt. If the appeal is taken from a state court, thenotice of appeal shall be filed with the clerk of thecourt possessed of the record.

4. All parties to the proceeding in the court fromwhose judgment the appeal is being taken shall bedeemed parties in this court, unless the appellantshall notify the clerk of this court in writing of hisbelief that one or more of the parties below haveno interest in the outcome of the appeal. A copy ofsuch notice shall be served on all parties to theproceeding below and a party noted as no longerinterested may remain a party here by notifyingthe clerk, with service on the other parties, thathe has an Interest in the appeal. All parties otherthan the appellant shall be appellees, but appelleeswho support the position of the applicant shall meetthe time schedule for filing papers which is pro-vided for the appellant, except that any responseby such appellees to a jurisdictional statement shallbe filcd as promptly as possible after receipt of thejurisdictional statement.

Rule 11. Appeal-time for taking.

1. An appeal to review the judgment of a statecourt of last resort in a criminal case shall be deemedin time when the notice of appeal prescribed byRule 10 is filed with the clerk of the court possessedof the record within ninety days after the entry ofsuch judgment.

2. An appeal permitted by law from a district

court to this court in a criminal case shall be In

time when the notice of appeal prescribed byRule 10 is filed with the clerk of the district court

within thirty days after entry of the judgment or

order appealed from.

3. An appeal in all other cases shall be in timewhen the notice of appeal prescribed by Rule 10is filed with the clerk of the appropriate court

within the time allowed by law for taking suchappeal.

Rule 12. Designation and certification of record.

1. A party intending to appeal shall request theclerk of the court possessed of the record to certifyit and to provide for its transmission to this court.

The entire record in the court from which the

appeal Is taken shall be transmitted unless the

appellant notifies the clerk of that court that all

the parties agree that specified parts may be omitted

as unnecessary for the determination of the appeal.The request to transmit the record may be made

prior to filing a notice of appeal and shall be made

in time to pennit the preparation, certification andtransmission of the record for filing in this courtwithin the time provided by paragraph 1 of Rule 13for docketing the appeal. A copy of the request shall

be sent to all parties to the proceeding.

Rule 12Page 2229


2. The clerk of the court possessed of the recordshall include in the record the opinion and judg-ment sought to be reviewed and the notice ofappeal. Such clerk shall number the documentscomprising the record and shall transmit with therecord a numbered list of the documents, identify-ing each with reasonable definiteness.

3. Whenever it shall be necessary or proper, in theopinion of the presiding judge of the court fromwhich the appeal is taken, that original papers ofany kind should be inspected in this court in lieuof copies, such presiding judge may make such ruleor order for the safekeeping, transporting, andreturn of such original papers as to him may seemproper.

4. When more than one appeal is taken to thiscourt from the same Judgment, it shall be sufficientto prepare a single record containing all the matterdesignated or agreed upon by the parties, withoutduplication.

Rule 13. Docketing cases.

1. Not more than ninety days after the entry ofthe judgment appealed from it shall be the duty ofthe appellant to docket the case in the manner setforth in paragraph 2 of this rule, except that in thecase of appeals pursuant to Sections 1252, 1253 or2282 of Title 28 of the United States Code the timelimit for docketing shall be sixty days from the filingof the notice of appeal. For good cause shown, ajustice of this court may extend the time for dock-eting a case for a period not exceeding sixty days.Where application under this rule is made, para-graph 2 of Rule 34 governs timeliness. Such appli-cations are not favored.

2. Upon the filing in this court of the recordbrought up by appeal, counsel for the appellantshall enter his appearance, pay the docket fee, andfile, with proof of service as prescribed by Rule 33,forty copies of a printed statement as to jurisdic-tion, which shall comply in all respects with Rule15. The case will then be placed on the appellatedocket.

3. It shall be the duty of the appellant to notifyall appellees on a form supplied by the clerk of thedate of docketing and of the docket number of thecase.

Rule .I. Dismissing appeals for non.prosecution.

1. After a notice of appeal has been filed, butbefore the case has been docketed in this court, theparties may at any time dismiss the appeal by stipu-lation filed in the court possessed of the record, orthat court may dismiss the appeal upon motion andnotice by the appellant. For dismissal after the casehas been docketed, see Rule 60.

2. If an appeal which has been noted is not dock-eted in this court within the time for docketing, plus

any enlargement thereof duly granted, the courtpossessed of the record may dismiss the appeal uponmotion of the appellee and notice to the appellant,and may make such orders thereon with respect tocosts as may be just.

3. If an appeal which has been noted is not dock-eted in this court within the time fur docketing,plus any enlargement thereof duly granted, and the

court possessed of the record has for any reasondenied an appellee's motion, made as provided inthe foregoing paragraph, to dismiss the appeal, theappellee may have the cause docketed and the ap-peal dismissed in this court, by producing a certifi-cate, whether in term or vacation, from the clerk ofthe court possessed of the record, establishing theforegoing facts, and by filing a motion to dismiss,which shall conform to Rule 35 and be accompaniedby proof of service as prescribed by Rule 33. Theclerk's certificate shall be attached to the motion.but it shall not be necessary for the appellee tofile the record. In the event that the appeal is there-after dismissed, the court will give judgment againstthe appellant and in favor of appellee for costs. Inno case shall the appellant be entitled to docket thecause and file the record after the appeal shall havebeen dismissed under this paragraph, unless byspecial leave of court.

Rule 15. Jurisdictional statement.

1. The Jurisdictional statement required by para-graph 2 of Rule 13 shall contain in the order hereindicated-

(a) A reference to the official and unofficial reportsof the opinions delivered in the courts below, if any,and if reported. Any such opinions shall be appendedas provided in subparagraph (h) hereof.

(b) A concise statement of the grounds on whichthe jurisdiction of this court is invoked, showing:

(i) The nature of the proceeding and the statutepursuant to which it is brought;

(ii) The date of the judgment or decree sought tobe reviewed and the time of its entry, the date of anyorder respecting a rehearing, the date the notice ofappeal was filed, and the court In which it was filed;

(iii) The statutory provision believed to confer onthis court jurisdiction of the appeal;

(iv) Cases believed to sustain the jurisdiction.(v) If the validity of the statute of a state, or

statute or treaty of the United States is involved, itstext shall be set out verbatim, citing the volume andpage where it may be found in the official edition. Ifthe statutory or treaty provisions that are involvedare lengthy, the citation alone will suffice at this

point, and their pertinent text shall be set forth inan appendix.

(c) The questions presented by the appeal, ex-pressed in the terms and circumstances of the casebut without unnecessary detail. The statement of thequestions should be short and concise and should notbe repetitious. The statement of a question pre-sented will be deemed to include every subsidiaryquestion fairly comprised therein. Only the questionsset forth in the jurisdictional statement or fairlycomprised therein will be considered by the court.

(d) A concise statement of the case containingthe facts material to the consideration of the ques-tions presented. If the appeal is from a state court,the statement of the case shall also specify the stagein the proceedings in the court of first instance, andin the appellate court, at which, and the manner inwhich, the federal questions sought to be reviewedwere raised; the method of raising them (e.g., by apleading, by request to charge and exceptions, by

Page 2230Rule 13


assignment of error); and the way in which theywere passed upon by the court; with such pertinentquotations of specific portions of the record, or sum-mary thereof, with specific reference to the placesin the record where the matter appears (e.g., rulingon exception, portion of the court's charge and ex-ception thereto, assignment of error) as will supportthe assertion that the rulings of the court were ofa nature to bring the case within the statutory pro-vision believed to confer jurisdiction on this court.

(e) If the appeal is from a state court, there shallbe included a presentation of the grounds upon whichit is contended that the federal questions are sub-stantial (Zucht v. King, 260 U. S. 174, 176, 177), whichshall show that the nature of the case and of therulings of the court was such as to bring the casewithin the jurisdictional provisions relied on and thecases cited to sustain the jurisdiction (subparagraph(b) (lv) hereof), and shall include the reasons whythe question presented are so substantial as to iequireplenary consideration, with briefs on the merits andoral argument, for their resolution.

(f) If thr appeal is from a federal court, thereshall similarly be included a statement of the rea-sons why the questions presented are so substantialas to require plenary consideration, with briefs onthe merits and oral argument, for their resolution.

(g) If the appeal is from a decree of a districtcourt granting or denying an interlocutory injunc-tion, the statement must also include a showing ofthe matters In which it is contended that the courthas abused its discretion by such action. See UnitedStates v. Corrick, 298 U. S. 435; Mayo v. LakelandHighlands Canning Co., 309 U. S. 310.

(h) There shall be appended to the statement acopy of any opinions delivered upon the rendering ofthe judgment or decree sought to be reviewed, in-cluding, if not reported, earlier opinions in the samecase, or opinions in companion cases, reference towhich may be necessary to ascertain the grounds ofthe judgment or decree; and, if the appeal is from afederal court, there shall similarly be appended thecourt's findings of fact and conclusions of law, if anywere separately made.

(i) If the appeal is from a state court, there shallalso be appended to the statement a copy of theorder, judgment, or decree appeal from; and if froma federal court, there shall similarly be appended acopy of such order, judgment, or decree, which mayhowever be limited to the portions thereof appealedfrom.

2. The jurisdictional statement shall be printed in

conformity with Rule 39.3. Where several cases are appealed from the

same court that involve identical or closely relatedquestions, it shall suffice to file a single jurisdictional

statement covering all the cases.

Rule 16. Motion to dismiss or affirm.

1. Within thirty days after receipt of the juris-dictional statement, unless the time is enlarged bythe court or a justice thereof, or by the clerk underthe provisions of paragraph 5 of Rule 34, the appelleemay file a printed motion to dismiss, or motion toaffirm. Where appropriate, a motion to affirm maybe united in the alternative with a motion to dismiss.

(a) The court will receive a motion to dismiss anyappeal on the ground that the appeal is not withinthe jurisdiction of this court, because not taken inconformity to statute or to these rules.

(b) The court will receive a motion to dismiss anappeal from a state court on the ground that it doesnot present a substantial federal question; or thatthe federal question sought to be reviewed was nottimely or properly raised, or expressly passed on; orthat the judgment rests on an adequate non-federalbasis.

(c) The court will receive a motion to affirm thejudgment sought to be reviewed on appeal from afederal court on the ground that it is manifest thatthe questions on which the decision of the causedepends are so unsubstantial as not to need furtherargument.

(d) The court will receive a motion to dismiss oraffirm on any other grounds which the appelleewishes to present ,as reasons why the court shouldnot set the case for argument.

2. The motion to dismiss or affirm shall be printedin conformity with Rules 35 and 39, and forty copies%%ith proof of service as prescribed by Rule 33, shallbe filed with the clerk.

3. Upon the filing of such motion, or the expira-tion of the time allowed therefor, or express waiverof the right to file, the jurisdictional statement andthe motion, if any, shall be distributed by the clerkto the court for its consideration.

4. Briefs opposing motions to dismiss or affirm maybe filed, but distribution of the jurisdictional state-ment and consideration thereof by this court willnot be delayed pending the filing of such briefs. Fortycopies of such briefs prepared in accordance withRule 39 and served as prescribed by Rule 33 shallbe filed.

5. Any party may file a supplemental brief at anytime while a jurisdictional statement is pendingcalling attention to new cases or legislation or otherintervening matter not available at the time of hislast filing.

6. After consideration of the papers distributed

pursuant to this rule, the court will enter an appro-priate order. If such order notes probable jurisdic-tion, or postpones consideration of the question ofjurisdiction to the hearing of the case on the merits,the case shall stand for argument. If consideration ofthe question of jurisdiction is postponed, counselshould address themselves, at the outset of theirbriefs and oral argument, to the question ofjurisdiction.

Rule 17. Use of single appendix.

After the court has noted or postponed jurisdictionany portion of the record to which the parties wishto direct the court's particular attention shall be

printed in a single appendix prepared by the appel-lant under the procedures provided in Rule 36, butthe fact that any part of the record has not beenprinted shall not prevent the parties or the court

from relying on it.

Rule 18. Supersedeas on appeal.

1. Whenever an appellant entitled thereto desiresa stay on appeal, he may present for approval to a

Rule 18Page 2231


judge of the court whose decision is sought t9 be re-viewed, or to such court when action by that courtis required by law, or, subject to paragraph 2 hereof,to a justice of this court, a motion to stay the en-forcement of the judgment appealed from, withwhich, if the stay is to act as a supersedeas, shall betendered a supersedeas bond which sh ill have suchsurety or sureties as said judge, court, or justicemay require. The bond shall be conditioned for thesatisfaction of the judgment in full together withcosts, interest, and damages for delay, if for anyreason the appeal is dismissed or if the judgment isaffirmed, and to satisfy in full such modification ofthe judgment and such costs, interest, and damagesas this court may adjudge and award. When thejudgment is for the recovery of money not otherwisesecured, the amount of the bond shall be fixed atsuch sum as will covcr the whole amount of thejudgment remaining unsatisfied, costs on the appeal,interest, and damages for delay, unless the judre,court, or justice after notice and hearing and forgood cause shown fixes a different amount or orderssecurity other than the bond. When the judgmentdetermines the disposition of the property in con-troversy as in real actions, replevin, and actions toforeclose mortgages or when such property is in thecustody of the marshal or when the proceeds ofsuch property or a bond for its value is in thecustody or control of any court wherein were hadthe proceedings appealed from, the amount of thesupersedes bond shall be fixed at such sum only aswill secure the amount recovered for tile use anddetention of the property, th, costs of the action,costs on appeal, interest, and ( amages for delay.

2. Application hereunder to a justice of this courtwill normally not be entertained unless applicationtherefor has first been made to a judge of the courtrendering the decision appealed from, or to suchcourt, or unless tile security offered below has beendisapproved by such judge or court. All such appli-cations are governed by Rules 50 and 51.

PART V.-JuRISDICTION ON WHIT OF CERTIORARI

Rule 19. Considerations governing review on certiorari.1. A review on writ of certiorari is not a matter of

right, but of sound judicial discretion, and will begranted only where there are special and importantreasons therefor. The following, while neither con-trolling nor fully measuring the court's discretion,Indicate the character of reasons which will beconsidered:

(a) Where a state court has decided a federalquestion of substance not theretofore determined bythis court, or has decided it in a way probably notin accord with applicable decisions of this court.

(b) Where a court of appeals has rendered a de-cision in conflict with the decision of another courtof appeals on the same matter; or has decided animportant state or territorial question in a way inconflict with applicable state or territorial law; orhas decided an important question of federal lawwhich has not been, but should be, settled by thiscourt; or has decided a federal question in a way inconflict with applicable decisions of this court; or hasso far departed from the accepted and usual course

of Judicial proceedings, or so far sanctioned such adeparture by a lower court, as to call for an exerciseof this court's power of supervision.

2. The same general considerations outlined abovewill control in respect of petitions for writs ofcertiorari to review judgments of the Court ofClaims, of the Court of Customs and Patent Appeals,or of any other court whose determinations are bylaw reviewable on writ of certiorari.

Rule 20. Certiorari to a court of appeals before judg-mient.

A writ of certiorari to review a case pending in acourt of appeals, before judgment is given in suchcourt, will be grinted only upon a showing that thecase is of such imperative public importance as tojustify the deviation from normal appellate proc-esses and to require immediate settlement in thiscourt. See United States v. Bankers Trust Co., 294U.S. 240; Railroad Retirement Board v. Alton R. Co.,295 US. 330; Rickert Rice Mills v. Fontenot, 297U.S. 110; Carter v, Cartcr Coal Co., 298 U.S. 238; Exparte Quirin, 317 U.S. 1; United States v. UnitedMine Workers, 330 U.S. 258; Youngstown Co. v.Sawyer, 343 U.S. 579.

Rule 21. Review on certiorari-how sought-parties.

1. Review on writ of certiorari shall be sought byfiling with the clerk, with proof of service as re-quired by Rule 33, forty printed copies of a petition,which shall conforn in all respects to Rule 23, and atranscript of the record in the case, including theproecedings in the court whose judgment or decreeis sought to be reviewed, which shall be certified bytie clerk of the appropriate court or courts below.The entire record in the court to which certiorari isaddressed shall be filed unless the parties agreethat specified parts may be omitted as unnecessaryfor the determination of the petition or of the writ,if it be granted. The provisions of Rule 12 (3) withrespect to original papers shall apply to all casessought to be reviewed on writ of certiorari. Serviceof a copy of the transcript of the record is notrequired.

2. Upon the filing of the petition and the certifiedtranscript of record required by the preceding para-graph, counsel for the petitioner shall enter hisappearance and pay the docket fee. The case willthen be placed on the appellate docket. It shall bethe duty of counsel for the petitioner to notify allrespondents, on a form supplied by the clerk, of thedate of filing and of the docket number of the case.Such notice shall be served as required by Rule 33.

3. A party seeking a cross-writ of certiorari toreview in this court the same judgment need not fileany record additional to that filed by the petitioner.

4. Any respondent, including a cross-petitioner,may, within the time allowed for filing his brief inopposition or his cross-petition, file duly certifiedportions of the record additional to those filed by thepetitioner.

5. The court may, on its own motion or that of aparty, require the printing of the entire record, orof designated portions thereof, prior to ruling onthe petition for writ of certiorari. If the petition Is

Rule 19 Page 2232


thereafter denied, the cost of such printing shallbe taxed against the petitioner, unless otherwiseordered by the court; if the petition is thereaftergranted, the cost of such printing shall abide theoutcome of the case.

6. All parties to the proceeding in the court whosejudgment is sought to be reviewed shall be deemedparties in this court, unless the petitioner shall notifythe clerk of this court in writing of his belief thatone or more of the parties below have no interest inthe outcome of the petition. A copy of such noticeshall be served on all parties to the proceeding be-low and a party noted as no longer interested mayremain a party here by notifying the clerk, withservice on the other piarties, that he has an interestin the petition. All parties other than the petitionershall be respondents, but respondents who supportthe position of the petitioner shall meet the timeschedule for filing papers which is provided for thepetitioner, except that any response by such re-spondents to the petition shall be filed as promptlyas possible after receipt of the petition.

Rule 22. Review on certiorari-time for petitioning.

1. A petition for writ of certiorari to review theJudgment of a state court of last resort in a criminalcase shall be deemed in time when it and the certi-fied record required by Rule 21 are filed with theclerk within ninety days after the entry of suchJudgment. A justice of this court, for good causeshown, may extend the time for applying for awrit of certiorari in such cases for a period not ex-ceeding sixty days.

2. A petition for wilt of certiorari to review thejudgment of a court of appeals in a criminal caseshall be deemed in time when it and the certifiedrecord required by Rule 21 are filed with the clerkwithin thirty days after the entry of such judgment.A justice of this court, for good cause shown, mayextend the time for applying for a writ of certiorariin such cases for a period not exceeding thirtydays. If the original judgment in such a case wasentered in a district court in Alaska, Guam, Hawaii,Puerto Rico, the Virgin Islands, or the Canal Zone,the petition and certified record shall be deemed filedin time if mailed by air-mail under a postmark datedwithin the thirty-day period or due extensionthereof.

3. A petition for writ of certiorari in all othercases shall be deemed in time when it and the certi-fied record required by Rule 21 are filed with theclerk within the time prescribed by law.

4. An application for extension of time withinwhich to file a petition for writ of certiorari mustset out, as in a petition for certiorari (see Rule 23(1), subparagraphs (b) and (f) ), the grounds onwhich the jurisdiction of this court is invoked, mustidentify the judgment sought to be reviewed andhave appended thereto a copy of the opinion, andmust set forth with specificity the reasons why thegranting of an extension of time is deemed justi-fied. For the time and manner of presenting an ap-plication for extension of time within which to filea petition for writ of certiorari, see Rules 34, 35 (2),and 50. Such applications are not favored.

Rule 23, The petition for certiorari.

1. The petition for writ of certiorari shall containin the order here indicated-

(a) A reference to the official and unofficial re-ports of the opinions delivered in the courts below,if any, and if reported. Any such opinions shall beappended as provided in subparagraph (i) hereof.

(b) A concise statement of the grounds on whichthe jurisdiction of this court is invoked, showing:

(i) The date of the judgment or decree sought tobe reviewed, and the time of its entry;

(ii) The date of any order respecting a rehear-ing, and the date and terms of any order grantingan extension of time within which to petition forcertiorari; and

(iii) The statutory provision believed to conferon this court jurisdiction to review the judgmentor decree in question by writ of certiorari.

(c) Tie questions presented for review, expressedin the terms and circumstances of the case but with-out unnecessary detail. The statement of a questionpresented will be deemed to include every subsidiaryquestion fairly comprised therein. Only the ques-tions set forth in the petition or fairly comprisedtherein will be considered by the court.

(d) Tile constitutional provisions, treaties, stat-utes, ordinances, or regulations which the case in-volves, setting them out verbatim, and citing thevolume and page where they may be found in theofficial edition If the provisions involved arelengthy, their cation alone will suffice at this point,and their pertinent text shall be set forth in anappendix.

(e) A concise statement of the case containing thefacts material to the consideration of t.ie questionspresented.

(f) If review of the judgment of a state court issought, the statement of the case shall also specifythe stage in the proceedings in the court of firstInstance and in the appellate court, at which, andin the manner in which, the federal questions soughtto be reviewed were raised; the method of raisingthem (e.g., by a pleading, by request to charge andexceptions, by assignment of error) ; and the wayin which they were passed upon by the court; withsuch pertinent quotations of specific portions of therecord, or summary thereof, with specific referenceto the places in the record where the matter appears(e.g., ruling on exception, portion of the court'scharge and exception thereto, assignment of er-rors) as will show that the federal question wastimely and properly raised so as to give this courtjurisdiction to review the judgment on writ ofcertiorari.

Where the portions of the record relied uponunder this subparagraph are voluminous, then theyshall be included in an appendix to the petition,which may, if more convenient, be separatelypresented.

(g) If review of the judgment of a federal courtis sought, the statement of the case shall also showthe basis for federal jurisdiction in the court of firstinstance.

(h) A direct and concise argument amplifying thereasons relied on for the allowance of the writ. SeeRule 19.

Page 2233 Rule 23

TITLE 28, APPENDr.-RULES OF THE SUPREME COURT

(i) There shall be appended to the petition a copyof any opinions delivered upon the rendering of thejudgment or decree sought to be reviewed, includ-ing all opinions of courts or administrative agenciesin the case, and, if reference thereto is necessary toascertain the grounds of the judgment or decree,opinions In companion cases. If whatever is requiredby this paragraph to be appended to the petition isvoluminous, it may, if more convenient, be separate-ly presented.

(j) If review of the judgment or decree of a statecourt is sought, there shall also be appended to thepetition a copy of the judgment or decree in ques-tion; and, if review of the judgment or decree of afederal court is sought, there shall similarly be ap-pended a copy of such judgment or decree, whichmay however be limited to the portions thereofsought to be reviewed.

2. The petition for writ of certiorari shall beprinted in conformity with Rule 39.

3. All contentions in support of a petition for writof certiorari shall be set forth in the body of thepetition, as provided in subparagraph (h) of para-graph 1 of this rule. No separate brief in support ofa petition for writ of certiorari will be received, andthe clerk will refuse to file any petition for writ ofcertiorari to which is annexed or appended any sup-porting brief.

4. The failure of a petitioner to present with ac-curacy, brevity, and clearness whatever is essentialto a ready and adequate understanding of thepoints requiring consideration will be a sufficientreason for denying his petition.

5. Where several cases are sought to be reviewedon certiorari to the same court that involve identicalor closely related questions, it shall suffice to file asingle petition for writ of certiorari covering all thecases.

Rule 21. Brief in opposition-reply-supplementnlbriefs.

1. Counsel for the respondent shall have thirtydays (unless enlarged by the court or a justicethereof, or by the clerk under the provisions of para-graph 5 of Rule 34), after receipt of a petition,within which to file forty printed copies of an op-posing brief disclosing any matter or ground whythe cause should not be reviewed by this court. SeeRule 19. Such brief in opposition shall comply withRule 39 and with the requirements of Rule 40 gov-erning a respondent's brief, and shall be served asprescribed by Rule 33.

2. No motion by a respondent to dismiss a petitionfor writ of certiorari will be received. Objections tothe jurisdiction of the court to grant writs of cer-tiorari may be included in briefs in opposition topetitions therefor.

3. Upon the expiration of the period for filing therespondent's brief, or upon an express waiver of theright to file or the actual filing of such brief in ashorter time, the petition, and the record and brief,if any, shall be distributed by the clerk to the courtfor its consideration.

4. Reply briefs addressed to arguments first raisedin the briefs in opposition may be filed, but distribu-tion under paragraph 3 hereof will not be delayedpending the filing of such briefs.

5. Any party may file a supplemental brief at anytime while a petition for a writ of certiorari is pend-ing calling attention to new cases or legislation orother intervening matter not available at the timeof his last filing.

Rule 25. Order granting or denying certiorari.

1. Whenever a petition for writ of certiorari toreview a decision of any court is granted, the clerkshall enter an order to that effect, and shall forth-with notify the court below and counsel of record ofthe granting of the petition. The order shall directthat the certified transcript of record on file herebe treated as though sent up in response to a formalwrit. A formal writ shall not issue unless speciallydirected.

2. Whenever application for a writ of certiorari toreview a decision of any court is denied, the clerkshall enter an order to that effect, and shall forth-with notify the court below and counsel of record.The order of denial will not be suspended pendingdisposition of a petition for rehearing except by orderof the court or of a justice thereof.

Rule 26. Use of single appendix.After certiorari has been granted any portion of

the record to which the parties wish to direct thecourt's particular attention shall be printed in asingle appendix prepared by the petitioner under theprocedures provided in Rule 36, but the fact that anypart of the record has not been printed shall notprevent the parties or the court from relying on it.

Rule 27. Stay pending review on certiorarLApplications pursuant to 28 U.S.C. § 2101(f) to a

justice of this court will normally not be entertainedunless application for a stay has first been made to ajudge of the court rendering the decision sought tobe reviewed, or to such court, or unless the securityoffered below has been disapproved by such judge orcourt. All such applications are governed by Rules50 and 51.

PART VI.-JURISDICTION OF CERTIFIED QUESTIONS

Rule 28. Questions certified by a court of appeals or bythe Court of Claims.

1. Where a court of appeals or the Court of Claimsshall certify to this court a question or proposition oflaw, concerning which it desires instruction for theproper decision of a cause, the certificate shall con-tain a statement of the nature of the cause and ofthe facts on which such question or proposition oflaw arises. Questions of fact cannot be certified.Only questions or propositions of law may be certi-fied, and they must be distinct and definite.

2. If in a cause certified by a court of appeals itappears that there is special reason therefor, thiscourt may on application, or on its own motion, re-quire that the entire record be sent up, so that it mayconsider and decide the entire matter in controversy.

3. Where application Is made under the precedingparagraph for direction that the entire record besent up, the application must be accompanied by acertified copy thereof.

Page 2234Rifle 24

TITLE 28, APPENDI.-RULES OF THE SUPREME COURT

Rule 29. Procedure in certified cases.

1. When a case is certified, the certificate itselfconstitutes the record. The clerk will upon receiptthereof from the court below notify the appellant inthe court of appeals, or the plaintiff in the Courtof Claims, who shall thereupon pay the docket fee,otter which the case will be placed on the appellatedocket. If the appellant or plaintiff fails to pay thefee, the appellee or defendant may do so. The ap-pearance of counsel for the party paying the feeshall be entered at the time of payment.

2. After docketing, the certificate shall be sub-mitted to the court for a preliminary examination todetermine whether the caze shall be set for argu-ment or whether the certificate will be dismissed.

3. Any portion of the record to which the partieswish to direct the court's particular attention shallbe printed in a single appendix prepared by the ap-pellant or plaintiff in the court below under the pro-cedures provided in Rule 36, but the fact that anypart of the record has not been printed shal! notprevent the parties or the court from relying on it.

4. Briefs on the merits in cases on certificatezshall comply with Rules 39, 40, and 41, except thatthe brief of the party who was appellant or plaintiffbelow shall be filed within forty-five days of theorder setting the case down for argument.

PART VII.-JURISDICTION To ISSUE EXTRAORDINARY

WRITS

Rule 30. Considerations governing issuance of extra-ordinary writs.

The issuance by the court of any writ authorizedby 28 U.S.C. § 1651 (a) is not a matter of right butof sound discretion sparingly exercised. See the fol-lowing cases, which are cited by way of illustrationonly: Ex parte Bollmian and Swartwout, 4 Cranch75; Ex parte Peru, 318 U.S. 578; Ex Parte Abernathy,320 U.S. 219; Ex parte Hawk, 321 U.S. 114; House v.Mayo, 324 U.S. 42; U.S. Alkali Export Assn. v. UnitedStates, 325 U.S. 196; DeBeers Consol. Mines v. UnitedStates, 325 U.S. 212; Ex parte Betz, 329 U.S. 672; Exparte Fahey, 332 U.S. 258.

Rule 31. Procedure on applications for extraordinarywrits.

1. The petition in any proceeding seeking the issu-ance of a writ by this court authorized by 28 U.S.C.§ 1651(a) or 28 U.S.C. § 2241 shall be prefaced by amotion for leave to file such petition, and both shallbe printed. All contentions in support of the petitionshall be included in the petition. The case will beplaced upon the miscellaneous docket when fortycopies of the printed papers, with proof of service asprescribed 'by Rule 33 (subject to paragraph 5 of thisrule), are filed with the clerk and the docket fee ispaid. The appearance of counsel for the petitionermust be entered at this time.

2. If the petition seeks issuance of a common lawwrit of certiorari under 28 U.S.C. § 1651(a), theremust also be filed, at the time of docketing, a cer-tified copy of the record, including all proceedingsin the court to which the writ is sought to be directed.The petition shall, except for the addition of themotion for leave to file, follow as far as may be theform for a petition for certiorari prescribed by Rule23, and shall set forth with particularity why the

relief sought is not available in any other court, orcannot be had through other appellate processes.The respondent may, within thirty days after receiptof the motion and petition, file forty printed copiesof a brief in opposition, as provided in Rule 24.

3. If the petition seeks issuance of a writ of prohi-bition, a writ of mandamus, or both in the alterna-tive, it shall set forth with particularity why therelief sought is not available in any other court, andthere shall be appended to such petition a copy ofthe judgment or order in respect of which the writ issought, including a copy of any opinion rendered inthat connection, and such other papers as may beessential to an understanding of the petition. Thepetition shall follow, insofar as applicable, the formfor the petition for wlt of certiorari prescribed byRule 23. The motion and petition shall be served onthe judge or judges to whom the writ is sought to bedirected, and shall also be served on every otherparty to the proceeding in respect of which relief isdesired. The judge or judges, and the other parties,may, within thirty days after receipt of the motionand petition, file forty printed copies of a brief orbriefs in opposition thereto, with proof of service.If the judge or judges concerned do not desire tocontest the motion and petition, they ma so advisethe clerk and all parties by letter. All parties, otherthan the judge or judges, who are served pursuantto this paragraph, shall also be deemed to be respon-dents for all purposes in the proceeding in this court.

4. When briefs in opposition under paragraphs 2and 3 of this rule have been filed, or when the timewithin which they may be filed has expired, or uponan express waiver of the right to file, the motion,petition, and briefs shall be distributed to the courtby the clerk.

5. If the petition seeks issuance of an original writof habeas corpus, it shall comply with the require-ments of 28 U.S.C. § 2242, and in particular with thelast paragraph thereof; and, if the relief sought isfrom the judgment of a state court, shall specificallyset forth how and wherein the petitioner hasexhausted his remedies in the state courts. See Exparte Abernathy, 320 U.S. 219; Ex parte Hawk, 321U.S. 114. Proceedings under this paragraph will becx parte, unless the court requires the respondent toshow cause why leave to file the petition for a writof habeas corpus should not be granted. Neitherrefusal of leave to file, without more, nor an order oftransfer under authority of 28 U.S.C. § 2241(b), isan adjudication on the merits, and the former actionis to be taken as without prejudice to a further appli-cation to any other court for the relief sought.

6. If the court orders the cause set down for argu-ment, the clerk will notify the parties whether addi-tional briefs are required, when they must be filed,how much time has been allotted for oral argu-ment, and, if the case involves a petition for com-mon law certiorari, that the parties shall proceed toprint an appendix pursuant to Rule 36.

Rule 32. Certiorari to correct diminution of recordabolished.

The write of certiorari to correct diminution of therecord is abolished. Relief formerly obtained by giantof that writ shall be sought by a motion to requirecertifications of additional portions of the record.

Page 2235 Rule 32


PAaT VIII.-P ACTICE

Rule 33. Service and special rule where constitution-ality of act of Congress in issue.

1. Whenever any pleading, motion, notice, brief orother documnt is required by these rules to beserved, such service may 'be made personally or byir ail on each adverse party. If personal, It shall con-sist of delivery, at the office of counsel of record, tocounsel or a clerk therein. If by mail, it shall con-sist of depositing the same in a United States postoffice or mail box, with first class postage prepaid,addressed to counsel of record at his post officeaddress. Where the person on whom service is to bemade resides 500 miles or more from the personeffecting service, such mailing must be made with airmail postage prepaid.

2. (a) If the Uilted States or an officer or agencythereof is a party, service of all briefs, pleadings,notices and papers shall, notwithstanding the fore-going paragraph, be made upon the Solicitor Gen-eral, Department of Justice, Washington, D.C.20530. Where an agency of the United States author-ized by law to appear in its own behalf is a party inaddition to the United States, such agency shall alsobe served, in addition to the Solicitor General, inevery case.

(b) In any proceeding in whatever court arisingwherein the constitutionality of any Act of Con-gress affecting the public interest is drawn in ques-tion and the United States or any agency, officer oremployee thereof is not a party, all initial pleadings,motions or papers in this court shall recite that 28U.S.C. § 2403 may be applicable and shall be servedupon the Solicitor General, Department of Justice,Washington, D.C. 20530. In proceedings from anycourt of the United States as defined by 28 U.S.C.§ 451, such initial pleading, motion or paper shallstate whether or not any such court has, pursuantto 28 U.S.C. § 2403 certified to the Attorney Generalthe fact that the constitutionality of such Act ofCongress was dravn in question.

3. Whenever proof of service is required by theserules, it must be stated that all parties required tobe served have been served and such service may beshown, either by indorsement on the documentserved or by separate instrument, by any one of themethods set forth below; and it is not necessary thatservice on each party required to be served beeffected in the same manner or evidenced by thesame proof:

(a) By an acknowledgment of service of the docu-ment in question, signed by counsel of record for theparty served.

(b) By a certificate of service of the document inquestion, reciting the fact and circumstances ofservice in compliance with the appropriate para-graph of this rule, such certificate to be signed by amember of the bar of this court representing theparty in behalf of whom such service has beeneffected. If counsel certifying to such service has notup to that time entered his appearance in this courtin respect of the cause in which such service is made,his appearance shall accompany the certificate ofservice if the same is to be filed in this court.

(c) By an affidavit of service of the document inquestion, reciting the fact and circumstances of

service in compliance with the appropriate para-graph of this rule, whenever such service Is effectedby any person not a member of the bar of this court.

4. Whenever proof of service Is required by theserules, it must accompany or be Indorsed upon thedocument in question at the time such document ispresented to the clcrk for filing. Any document filedwith the clerk or on behalf of counsel of recordwhose appearance has not previously been enteredmust be accompanied by an entry of appearance.

Rule 31. Computation and enlargement of time.

1. In computing any period of time prescribed orallowed by these rules, by order of court, or by anyapplicable statute, the day of the act, event, or de-fault after which the designated period of time be-gins to run is not to be included. The last day ofthe period so computed is to be included, unless itis a Sunday or a legal holiday, in which event theperiod runs until the end of the next day which Isneither a Sunday nor a holiday. A half holiday shallbe considered as other days and not as a holiday.

2. Whenever any justice of this court or the clerkis empowered by law or under any provision of theserules to extend the time within which a party maypetition for a writ of certiorari or docket an appealor file any brief or paper, an application seekingsuch extension must be presented to the clerk withinthe period sought to be extended. Applications forextension of time to file petitions for certiorari orto docket appeals shall be submitted at least ten daysbefore the expiration of the period sought to beextended and will not be grantea except in the mostextraordinary circumstance If filed during the lastten days of such period.

3. All applications seeking an extension of timewithin which a party may petition for a writ ofcertiorari or docket an appeal or file any brief or

paper must be presented and served upon all otherparties as provided in Rule 50, but such applica-tions for extension of time, if once denied, may notbe renewed before another justice after expirationof the period sought to be extended.

4. Whenever a justice or the clerk has granted anextension of time within which a party may pe-tition for a writ of certiorari or docket an appealor file any brief or paper it shall be the duty ofthe party to whom such extension is granted to give

all other parties to the proceeding prompt noticethereof.

5. All applications for extensions of time to filebriefs, motions, appendices or other papers, to desig-nate parts of records for printing In appendices,

or otherwise to comply with time limits provided by

these rules, except applications for extensions oftime to file petitions for certiorari, to docket appeals,

to petition for rehearings or to issue mandates shallin the first instance be acted upon by the clerk,whether addressed to him, to the court or to a justice.Any party aggrieved by the clerk's action on such

application may request that It be submitted to ajustice or to the court.

Rule 35. Motions.

1. Every motion to the court shall state clearlyits object and the facts on which it is based. A brief

Page 2236Ralc 33


in support of the motion (other than motions underRule 31) may be filed therewith.

2. Motions and applications addressed to a singlejustice need not be printed, and only a typewrittenoriginal need be filed. Motions In actions withinthe court's original jurisdiction shall be printed, andsixty copies shall be filed. Motions to dismiss oraffirm made under Rule 16, motions to bring upthe entire record under Rule 28(2), motions forpermission to file a brief amicus curiae, any motionsthe granting of which would be dispositive of theentire case or would affect the final judgment tobe entered (other than a motion to docket or dis-miss under Rule 14, or a motion for voluntary dis-missal under Rule ti0, and any motions to the courtaccompanied by a supporting brief, shall likewisebe printed, and forty copies of the motion and ofthe brief, if any, shall be filed. All other motionsto the court need not be printed, and it shall besufficient to file a typewritten original and ninelegible typewritten copies; but the court may by sub-sequent order require any such motion to be printedby the moving party.

3. Motions to the court shall be filed with theclerk, with proof of service unless cx parte In nature.For applications and motions addressed to a singlejustice, see Rule 50. No motions shall be presentedIn open court, other than a motion for admissionto the bar, except when the proceeding to whichit refers is being argued. Oral argument will notbe heard oil any motion unless the court speciallyassigns it therefor.

4. Action by the court or a justice on contestedmotions will ordinarily, but not always, be with-held to permit responses by opposing parties, but sochresponses shall be made as promptly as possibleconsidering the nature of the relief asked and anyasserted need for emergency action, and, in anyevent, shall be made within ten days unless other-wise ordered by the court or a justice, or by theclerk under the provisions of paragraph 5 of Rule 34.Responses to printed motions shall be printed iftime permits.

5. Printed motions must comply with Rule 39with respect to format, signatures, and index. Type-written motions must similarly comply with Rule47.

Rule 36. lPrinting of appendices.

1. In the absence of a stipulation pursuant to para-graph 4 below, the appellant or petitioner shall,within forty-five days after the order noting or post-poning jurisdiction or of the order granting thewrit of certiorari, prepare and file forty copies of anappendix to the briefs which shall contain: (1) therelevant docket entries in the proceeding below; (2)any relevant pleading, charge, finding or opinion:(3) the judgment, order or decision in question;and (4) any other parts of the record to whichthe parties wish to direct the court's particular at-tention. At the same tit. e or promptly thereafterthe appellant or petitioner shall file with the clerka statement of the costs of preparing the appendix.The appellant or petitioner slall serve at leas, threecopies of the appendix and a copy of the state-ment of costs on each of the other parties to theproceeding.

2. The parties are encoura,,ed to agree as to thecontents of the appendix. In ,he absence of agree-ment, not later than ten days after the order notingor postponing jurisdiction or of the order grant-ing the writ of certiorari, the appellant or petitionershall serve on the api)ellee or respondent a designa-tion of the parts of the record which le intends toinclude In the appendix xud a statement of the issueswhich he intends to present for review. If in thejudgment of the appellee or respondent the parts ofthe record designated by the appellant or petitionerare not sufficient, the appellee or respondent sha.l,within ten days after receipt of the designadiu ,serve upon th' . appellant or petitioner a designationof additional parts to be included in the appendix.The appellant or petitioner shall include the partsthus designated in the appendix. In designatingparts of the record for inclusion in the appendix,the parties shall have regard for the fact that theentire record is always available to the court forreference and examinaton and shall not engagein unnccessary designation.

3. Unless the parties otherwise agree, the costof producing the appendix shall initially be paid bytile appellant or petitioner, uut if the appellant orpetitioner considers that parts of the record desig-nated by the appellee or respondent for inclusion areunnecessary for the determination of the issuespresented he may so advise the appellee or respond-ent and the appellee or respondent shall advanceLhe cost of including such parts unless the courtor a justice by appropriate order fixes the initialallocation of the expense of printing the appendix.Tie cost of producing the appendix shall be taxedas costs in the case, but if either party slall causematter to be included in the appendix unnecessarilythe court may impose the cost of producing suchparts on the party.

4. If the parties shall so stipulate, or the courtshall so order, preparation of the appendix may bedeferred until after the briefs have been filed, andthe appendix may be filed fourteen days after serv-ice of the brief of the appellee or respondent, orat least twenty days before tle case is set forargument, whichever is later. If the preparation andfiling of the appendix is thus deferred, the provisionsof paragraph 1, 2 and 3 of this rule shall apply,except that the designations referred to therein shallbe made by each party at the time his brief isserved, and a statement of the issues presentedshall be unnecessary.

5. If the deferred appendix authorized by para-graph 4 of tills rule is employed, references in thebriefs to the record may be to the pages of the

parts of the record involved, in which event theoriginal paging of each part of the record shall beindicated in the appendix by placing in bracketsthe number of each page at the place in the ap-

pendix where that page begins. Or If a party desiresto refer in his brief directly to pages of the ap-

pendix, he may serve and file typewritten or pageproof copies of his brief within the time requiredby Rule 41, with appropriate references to the pagesof the parts of the record involved. In that event,within ten days after the appendix Is filed he shall

Page 2237 Rule 36


serve and file copies of the brief in the form pre-scribed by Rule 39 containing references to thepages of the appendix in place of or in additionto the initial references to the pages of the partsof the record involved. No other changes may bemade in the brief as Initially served and filed, ex-cept that typographical errors may be corrected.

6. At the beginning of the appendix there shallbe inserted a list of the parts of the record whichit contains in the order in which the parts are setout therein, with references to the pages of theAppendix at which each part begins. The relevantdocket entries shall be set out following the list ofcontents. Thereafter, other parts of the record shallbe set out in chronological order. When matter con-tained in the reporter's transcript of proceedingsis set out in the appendix, the page of the tran-script at which such matter may be found shall beindicated In brackets immediately before the mat-ter which Is set out. Omissions in the text of pa-pers or of the transcript must be indicated byasterisks. Immaterial formal matters (captions, sub-scriptions, acknowledgments, etc.) shall be omitted.A question and its answer may be contained in asingle paragraph.

7. Exhibits designated for inclusion in the ap-pendix may be contained in a separate volume, orvolumes, suitably indexed. The transcript of a pro-ceeding before an administrative agency, board,commission or officer used in an action in the districtcourt shall be regarded as an exhibit for the pur-pose of this paragraph.

8. The court may by order dispense with the re-quirement of an appendix and may permit casesto be heard on the original record, with such copiesof the record, or relevant parts thereof, as thecourt may require.

9. For good cause shown the time limits specifiedin this rule may be shortened or enlarged by thecourt, by a justice thereof, or by the clerk underthe provisions of paragraph 5 of Rule 34.

Rule 37. Translations.Whenever any record transmitted to this court

shall contain any document, paper, testimony, orother proceedings In a foreign language, without atranslation of such document, paper, testimony, orother proceedings, made under the authority of thelower court, or admitted to be correct, the case shallbe reported by the clerk, to the end that this courtmay order that a translation be supplied and, ifnecessary, printed as a part of the appendix.

Rule 38. Models, diagrams, and exhibits of materials.1. Models, diagrams, and exhibits of material

forming part of the evidence taken in a case, andbrought up to this court for its inspection, shall beplaced in the custody of the clerk at least one weekbefore the case is heard or submitted.

2. All such models, diagrams, and exhibits ofmaterial placed In the custody of the clerk must betaken away by the parties within forty days afterthe case is decided. When this is not done, it shall bethe duty of the clerk to notify counsel to remove thearticles forthwith; and if they are not removedwithin a reasonable time after such notice, the clerk

shall destroy them, or make such other dispositionof them as to him may seem best.

Rule 39. Form of appendices, petitions, briefs, etc.1. All appendices, petitions, motions and briefs,

printed for the use of the court must be in such formand size that they can be conveniently bound to-gether, so as to make an ordinary octavo volume,having pages 61/8 by 9 inches and type matter4 '' by 7 1 inches, except that appendices in patentcases may be printed in such size as is necessary toutilize copies of patent documents. They and allquotations contained therein, and the matter ap-pearing on the covers, must be printed in clear type(never smaller than 11-point type) adequatelyleaded; and the paper must be opaque and unglazed.If footnotes are Included, they may not be printed intype smaller than 9-point.

2. All printed documents presented to the court,other than appendices, must bear on the cover thename and post office address of the member of thebar of this court who is counsel of record for theparty concerned, and upon whom service is to bemade. The individual names of other counsel and,if desired, their post office addresses, may be added.The body of the document shall at its close bear theprinted names of counsel of record and of such otherindividual counsel as may be desired. One copy ofevery printed motion filed with the clerk (other thana motion to dismiss or affirm under Rule 16) must inaddition bear, at the appropriate place in the bodythereof, the manuscript signature of counsel ofrecord.

3. All printed documents presented to the courtother than appendices, which in this respect aregoverned by Rule 36, shall, unless they are less thanten pages in length, be preceded by a subject indexof the matter contained therein, with page refer-ences, and a table of the cases (alphabetically ar-ranged), text books and statutes cited, with refer-ences to the pages where they are cited.

4. Printing, as the term is used in these rules, shallinclude any process capable of producing a clearblack image on white paper but shall not includeordinary carbon copies. If papers are filed in a formwhich is not clearly legible, the clerk will requirethat new copies be substituted, but the filing shallnot thereby be deemed untimely.

Rule 40. Briefs--in general.1. Briefs of an appellant or petitioner on the

merits shall be printed as prescribed in Rule 39, andshall contain in the order here indicated-

(a) A reference to the official and unofficial re-ports of the opinions delivered in the courts below,if there were such and they have been reported.

(b) A concise statement of the grounds on whichthe jurisdiction of this court is invoked, with cita-tion to the statutory provision and to the time factorsupon which such Jurisdiction rests.

(c) The constitutional provisions, treaties, stat-utes, ordinances and regulations which the caseinvolves, setting them out verbatim, and citing thevolume and page where they may be found in theofficial edition. If the provisions involved are lengthy,their citation alone will sufflce at this point, andtheir pertinent text shall be set forth in an appendix.

Rule 37 Page 2238

TIT;E 28, APPENDIX.-RULES OF THE SUPREME COURT

(d) (1) The questions presented for review, ex-pressed in the terms and circumstances of the casebut without unnecessary detail. The statement of aquestion presented will be deemed to include everysubsidiary question fairly comprised therein.

(2) The phrasing of the questions presented neednot be identical with that set forth in the jurisdic-tional statement or the petition for certiorari, butthe brief may not raise additional questions or changethe substance of the questions already presented inthose documents. Questions not presented accord-ing to this paragraph will be disregarded, save asthe court, at its option, may notice a plain errornot presented.

(e) A concise statement of the case containing allthat is material to the consideration of the ques-tions presented, with appropriate references to theappendix, e.g., (A. 12) or to the record, e.g., (R. 12).

(f) In briefs on the merits or in any briefswherein the argument portion extends beyond twentyprinted pages, a summary of argument, suitablyparagraphed, which should be a succinct, but ac-curate and clear, condensation of the argumentactually made in the body of the brief. It shouldnot be a mere repetition of the headings under whichthe argument is arranged.

(g) The argument, exhibiting clearly the pointsof fact and of law being presented, cited the authori-ties and statutes relied upon.

(h) A conclusion, specifying with particularitythe relief to which the party believes itself entitled.

2. Whenever, in the brief of any party, a referenceis made to the appendix or the record, it must beaccompanied by the appropriate page number. Whenthe reference is to a part of the evidence, the pagecitation must be specific. If the reference is to anexhibit, both the page number at which the exhibitappears and at which it was offered in evidencemust be indicated, e.g., (PI. Ex. 14; R. 199, 2134).

3. The brief filed by an appellee or respondentshall conform to the foregoing requirements, except

that no statement of the case need be made beyondwhat may be deemed necessary in correcting anyinaccuracy or omission in the statement of theother side, and except that item (a), (b), (c) and

(d) need not be included unless the appellee or re-spondent is dissatisfied with their presentation bythe other side.

4. Reply briefs shall conform to such portions of

this rule as are applicable to the briefs of an appelleeor respondent, but need not contain a summary of

argument, regardless of their length, if appropriatelydivided by topical headings.

5. Briefs must be compact, logically arranged with

proper headings, concise, and free from burdensome,

irrelevant, immaterial, and scandalous matter.

Briefs not complying with this paragraph may bedisregarded and stricken by the court.

Rule 41. Briefs on the merits-time for filing.

1. Counsel for the appellant or petitioner shall file

with the clerk forty copies of his printed brief on the

merits, within forty-five days of the order noting or

postponing probable Jurisdiction or of the ordergranting the writ of certiorari.

2. Forty printed copies of the brief of the appelleeor respondent shall be filed with the clerk withinthirty days after the receipt by him of the brief filedby the appellant or petitioner.

3. Reply briefs will be received up to three days be-fore the case is called for hearing; but, since laterfiling may delay consideration of the case, only byleave of court thereafter.

4. The periods of time stated in paragraphs 1 and2 of this rule may be enlarged, as provided in Rule34, upon motion duly made; or, if a case is avancedfor hearing, the time for filing briefs may be abridgedas circumstances shall require, pursuant to orderof the court on its own or a party's motion.

5. Whenver a party desires to present lote author-itles, newly enacted legislation, or other interveningmatters that were not available in time to have beenincluded in his brief in chief, he may file forty

printed copies of a supplemental brief, restrictedto such new matter and otherwise in conformity withthese rules, up to the time the case is called forhearing, or, by leave of court, thereafter.

6. No brief will be received through the clerk orotherwise after a case has been argued or submitted,except upon special leave.

7. No brief will be received by the clerk unless thesame shall be accompanied by proof of service asrequired by Rule 33.

Rule 12. Briefs of an amicus curiae.

1. A brief of an amicus curiae prior to considera-tion of the jurisdictional statement or of the petitionfor writ of certiorari, filed with the consent of theparties, or a motion for leave to file when consent isrefused, may be filed only if submitted a reasonabletime prior to the consideration of the jurisdictionalstatement or of the petition for writ of certiorari.Such motions are not favored. Distribution to thecourt under the applicable rules of the Jurisdictionalstatement or of the petition for writ of certiorari,and its consideration thereof, wvill not be delayed

pending the receipt of such brief or the filing of suchmotion.

2. A brief of an amicus curiae in cases before thecourt on the merits may be filed only after order or'the court or when accompanied by written consentof all parties to the case and presented within thetime allowed for the filing of the brief of the partysupported.

3. When consent to the filing of a brief of an arni-cus curiae is refused by a party to the case, a motionfor leave to file may timely be presented to the court.It shall concisely state the nature of the applicant'sinterest, set forth facts or questions of law that havenot been, or reasons for believing that they will notadequately be, presented by the parties, and theirrelevancy to the disposition of the case; and it shall

in no event exceed five printed pages in length. A

party served with such motion may seasonably filean objection concisely stating the reasons for with-

holding consent.4. Consent to the filing of a brief of an amicus

curiae need not be had when the brief is presented

for the United States sponsored by the Solicitor

ISo in original.

Rule 42Page 2239


General; for any agency of the United States au-thorized by law to appear in its own behalf, spon-sored by its appropriate legal representative; for aState, Territory, or Commonwealth sponsored by itsattorney general; or for a political subdivision ofa State, Territory, or Commonwealth sponsored bythe authorized law officer thereof.

5. All briefs, motions, and responses filed underthis rule shall be printed; shall comply with the ap-plicable provisions of Rules 35, 39, and 40 (exceptthat it shall be sufficient to set forth the interest ofthe amicus curiae, the argument, the summary ofargument if required by Rule 40(1) (f), and the con-clusion) ; and shall be accompanied by proof of serv-ice as required by Rule 33.

Rule .13. Call and order of the calendar.1. The clerk shall, at the commencement of each

term, prepare a calendar, consisting of the cases thathave become or will be available for argument, whichshall be arranged in the first instance in the order inwhich they are ordered set down for argument, andwhich shall indicate which of them have been or-dered heard as summary calendar cases under Rule443. No separate summary calendar will be main-tained. The arrangement of cases on the calendarshall be subject to modification in the light of avail-ability of appendices, extensions of time to file briefs.and of orders granting motions to advance or post-pone or specially setting particular cases for argu-ment. Cases will be calendared so that they will notnormally be called for argument less than two weeksafter the brief of the appellee or respondent has beenfiled. The clerk shall keep the calendar currentthroughout the term, adding cases as they are setdown for argument, and making rearrangements asrequired. He shall periodically publish hearing listsin advance of each argument session, for the con-venience of counsel and the information of thepublic.

2. Unless otherwise ordered, the court, on the sec-ond Monday of each term, will comnmence callingcases for argument in the order in wvhich they standon the calendar, and proceed from day to day duringthe term in the same order, except as hereinafterprovided.

3. Cases will not be called until they are actuallyreached for argument. The clerk will seasonably ad-vise counsel when they are required to be present incourt.

4. Cases may be advanced or postponed by order ofthe court, upon motion duly made showing good causetherefor.

5. Two or more cases, involving the same question,may, on the court's own motion or by special permis-sion on the motion or stipulation of the parties, beargued together as one case, or on such terms as maybe prescribed.

Rule 4.. Oral argument.

1. Oral argument should undertake to emphasizeand clarify the written argument appearing in thebriefs theretofore filed. The court looks with dis-favor on any oral argument that is read from a pre-pared text.

2. The appellant or petitioner shall be entitled toopen and conclude the argument. But when thereare cross-appeals or cross-writs of certiorari theyshall be argued together as one case and in the timeof one case, and the court will, by order seasonablymade, advise the parties which one is to open andclose.

3. In cases on the summary calendar, half an houra side, and no more, will be allowed for the argu-ment, and only one counsel will be heard on each side,except by special permission, which will be grantedonly upon a showing that parties with differing in-terest are on the same side. A case will be placed onthe summary calendar whenever the court concludesthat it is of such a character as not to justify ex-tended argument.

4. In all other cases, one hour on each side and nomore, will be allowed for the argument, unless more,time be granted before the argument begins. Any re-quest for additional time shall be presented by letteraddressed to the clerk (copy to be sent opposingcounsel), and shall set forth with specificity and con-ciseness why the case cannot be presented within theone hour limitation. Two counsel, and no more, willbe heard for each side, except by special permissionwhen there are several parties on the same side.Divided arguments are not favored by the court.When no oral argument is made for one of the par-ties, only one counsel will be heard for the adverseparty.

5. In any case, and regardless of the number ofcounsel participating, a fair opening of the caseshall be made by the party having the opening andclosing.

6. Oral argument will not be heard on behalf ofany party for whom no brief has been filed.

7. Counsel for an amicus curiae whose brief hasbeen duly filed pursuant to Rule 42 may, with theconsent of a party, argue orally on the side of suchparty, provided that neither the time nor the num-ber of counsel permitted for oral argument on behalfof that party under the preceeding paragraphs ofthis rule will thereby te exceeded. In the absence ofsuch consent, argument by counsel for an amicuscuriae may be made only by special leave of court,on motion particularly setting forth why such argu-ment is thought to provide assistance to the courtnot otherwise available. Such motions, unless madeon behalf of the United States or of a State, Terri-tory, Commonwealth, or Possession, are not favored.Rule 45. Submission on briefs by one or both parties

without oral argument.

1. The court looks with disfavor on the submis-sion of cases on briefs, without oral argument, andtherefore may, notwithstanding such submission, re-quire oral argument by the parties.

2. When a case is called and no counsel appearto present argument, but briefs have been Piled, thecase will be treated as having been submitted.

3. When a case is called, if a brief has been filedfor only one of the parties and no counsel appearsto present oral argument for either party, the casewill be regarded as submitted on that brief.

Rule 43 Page 2240


Rule 46. Joint or several appeals or petitions for writsof certiorari; sunmnons and severance abolished.

Parties interested jointly, severally, or otherwiseIn a judgment may join in ar. appeal or a petitionfor writ of certiorari therefrom; or, without sum-mons and severance, any one or more of them mayappeal or petition separately or any two or more ofthem may join In an appeal or petition.

Rule 47. Form of typewritten papers.

1. All papers specflcally permitted by these rulesto be presented to the court without being printedshall, subject to Rule 53 (1), be typewritten or other-wise duplicated upon opaque, unglazed paper, 8,2by 13 inches in size (legal cap), and shall be stapledor bound at the upper left-hand corner. The typedmatter, except quotations, must be double-spaced.When more than one original is required by anyrule, the copies must be legible.

2. The original copy of all typewritten motionsand applications must be signed in manuscript bythe party or by counsel, but, in a cause not yet dock-eted, such counsel need not be a member of the barof this court.Rule 18. Death, substitution, and revivor-lublic

officers, substitution and description.

1. Whenever either party shall die after filing no-tice of appeal to this court or filing of petition forwrit of certiorari in this court, the proper represent-ative of the deceased may appear and, upon mo-tion, be substituted as a party to the proceeding. Ifsuch representative shall not voluntarily become aparty, the other party may suggest the death on therecord, and on motion obtain an order that, unlesssuch representative shall become a party within adesignated time, the party moving for such an order,if appellee or respondent, shall be entitled to havethe appeal or petition for or writ of certiorari dis-missed or the judgment vacated for mootness, as

may be appropriate; and, if the party so moving beappellant or petitioner, shall be entitled to proceedas in other cases of nonappearance by appellee orrespondent. Such substitution, or, in default there-of, such suggestions, must be made within sixmonths after the death of the party, else the caseshall abate.

2. Whenever, in the case of a suggestion made asprovided in paragraph 1 of this rule, the case can-not be revived in the court whose judgment is soughtto be reviewed because the deceased party has no

proper representative within the jurisdiction of thatcourt, but does have a proper representative else-where, proceedings shall then be had as this courtmay direct.

3. When a public officer is a party to a proceed-ing here in his official capacity and during its pen-dency dies, resigns, or otherwise ceases to hold office,the action does not abate and his successor Is auto-matically substituted as a party. Proceedings follow-ing the substitution shall be in the name of the sub-stituted party, but any misnomer not affecting the

substantial rights of the parties shall be disregarded.An order of substitution may be entered at any time,

but the omission to enter such an order shall notaffect the substitution.

4. When a public officer is a party in a proceedinghere in his official capacity, he may be described asa party by his official title rather than by name;but the court may require his name to be added.

Rule .19. Custody of prisoners in habeas corpus pro-ceedings.

1. Pending review of a decision in a habeas corpusproceeding commenced before a court, justice orjudge of the United States for the release of a pris-oner, a person having custody of the prisoner shallnot transfer custody to another unless such transferis directed in accordance with the provisions of thisrule. Upon application of a custodian showing a needtherefor, the court, justice or judge rendering thedecision may make an order authorizing transferand providing for the substitution of the successorcustodian as a party.

2. Pending review of a decision failing or refus-ing to release a prisoner in such a proceeding, theprisoner may be detained in the custody from whichrelease is sought, or in other appropriate custody,or may be enlarged upon his recognizance, with orwithout surecy, as may appear fitting to the courtor justice o,' judge rendering the decision, or to thecourt ol appeals or to this court, or to a judge orjustice of either court.

3. Pending review of a decision ordering the re-lease of a prisoner in such a proceeding, the pris-oner shall be enlarged upon his recognizance, withor without surety, unless the court or justice orjudge rendering the decision, or the court of appealsor this court, or a judge or justice of either court,shall otherwise order.

4. An initial order respecting the custody or en-largement of the prisoner, and any recognizanceor surety taken, shall govern review in tie courtof appeals and in this court unless for special rea-sons shown to the court of appeals or to this court,or to a judge or justice of either court, the ordershall be modified or an independent order respect-ing custody, enlargement or surety shall be made.

Rule 50. Applications to individual justices; practice

in chambers.

1. All motions and applications addressed to in-dividual justices shall normally be submitted to theclerk, who will promptly transmit them to the jus-tice concerned. If oral argument on the application isdesired, request therefor shall accompany the ap-plication.

2. All motions and applications addressed to in-dividual justices shall be accompanied by proof ofservice on all other parties. In' urgent cases, proofof telegraphic dispatch to such parties of noticethat the motion, application, or request is beingmade will suffice.

3. The clerk will in due course advise all counselconcerned, by means as speedy as may be appro-priate, of the time and plac,' of the hearing, if any,or, If no hearing is requested or granted, of the dis-position made of the motion or application.

Page 2241 Rule 50


4. During the tern, applications will be addressedto the justice duly allotted to the circuit withinwhich the case arises. The court or the chief Justicewill seasonably instruct the clerk as to the distribu-tion of applications during vacation, and whenevera circuit justice Is temporarily absent or disabled.

5. A justice denying an application made to himwill note his denial thereon. Thereafter, unless ac-tion on such application is by law restricted to thecircuit justice, or is out of time under Rule 34(3),the party making the application may renew thesame to any other justice, subject to the provisionsof this rule. Except where the denial has been with-out prejudice, such renewed applications are notfavored.

6. Any justice to whom an application for a stayor for bail is submitted may refer the same to thecourt for determination.

Rule 51. Stays.1. Stays may be granted by a justice of this court

as permitted by law; and writs of injunction may begranted by any Justice in cases where they mightbe granted by the court. For supersedeas on appeal,see Rule 18; for stay pending review on certiorari,see Rule 27.

2. All applications for stays or injunctions madepursuant to this oe any other rule must show whetherapplication for the relief sought has first been madeto the appropriate court or courts below, or to ajudge or judges thereof, and shall be submitted asprovided in Rule 50. See Rules 18(2) and 27.

3. If an application for a stay addressed to thecourt is received in vacation, the clerk will refer itpursuant to Rule 50(4).

Rule 52. Fees.

In pursuance of 28 U.S.C. § 1911, the fees to becharged by the clerk of this court are fixed as fol-lows:

(a) For docketing a case on appeal (except a mo-tion to docket and dismiss under Rule 14 (3), whereinthe fee is $25.00) or on petition for writ of certiorarior docketing any other proceeding, $100.00, to beincreased to $150.00 in a case on appeal or writ ofcertiorari when oral argument is permitted.

(b) For making a copy (except a photographicreproduction) of any record or paper, and compari-son thereof, 40 cents per page of 250 words or frac-tion thereof; for comparing for certification a copy(except a photographic reproduction) of any recordor paper when such copy is furnished by the per-son requesting its certification, 10 cents for eachpage of 250 words or fraction thereof.

For a photographic reproduction and certificationof any record or paper, 50 cents per page; and forcomparing the original thereof any photographicreproduction of any record or paper, when furnishedby the person requesting Its certification, 5 cents foreach page, and 50 cents for each certificate.

(C) For a certificate and seal, $3.00.(d) For an admission to the Ear and certificate

under seal, $25.00.(e) For a duplicate certificate of an admission

to the Bar under seal, $10.00.

PART IX.-SPEcIAL PROCEEDINGS

Rule 53. Proceedings in forma pauperis.1. A party desiring to proceed in this court in

forma pauperis shall file a motion for leave so toproceed, together with his affidavit setting forthfacts showing that he comes within the statutoryrequirements. See 28 U.S.C. § 1915; Adkins v. DuPontCo., 335 U.S. 331. One copy of each will suffice.Papers in cases presented under this rule should,whenever possible, comply with Rule 47.

2. With the motion and affidavit there shall befiled the appropriate substantive document-state-ment as to Jurisdiction, petition for writ of cer-tiorari, or motion for leave to file, as the case maybe-which shall comply in all respects with the rulesgoverning the same, except that it shall be sufficientto file a single copy thereof. Notwithstanding anyother provision of these rules, a party moving forleave to proceed in forma pauperis who shows thathe was unable to obtain a certified copy of the rec-ord in the court below without payment of fees andcosts need not file such a record with his Jurisdic-tional statement, petition for writ of certiorari, ormotion for leave to file.

3. When the papers required by paragraphs 1 and2 of this rule are presented to the clerk, accompaniedby proof of service as prescribed by Rule 33, he will,without payment of any docket or other fees, filethem, and place the case on the miscellaneousdocket.

4. The appellee or respondent in a case in formapauperis may respond in the same manner andwithin the same time as in any other case of thesame nature, except that the filing of a single re-sponse, typewritten or otherwise duplicated, withproof of service as required by Rule 33, will sufficewhenever petitioner or appellant has filed unprintedpapers.

5. While making due allowance for cases presentedunder this rule by persons appearing pro se, theclerk will refuse to receive any motion for leaveto proceed in forma pauperis when it and the paperssubmitted therewith do not comply with the sub-stance of this court's rules, or when it appears thatthe accompanying papers are obviously out of time.

6. If, in a case presented under this rule, the courtenters an order noting or postponing probable juris-diction, or granting a writ of certiorari, and the caseis set down for argument, it will be transferred tothe appellate docket, and the court will make suchorder respecting the furnishing of a record and theprinting of an appendix as may be appropriate. Thecourt may, in any case presented under this rule,require the furnishing of the record prior to itsconsideration of the motion papers.

7. Whenever the court appoints a member of thebar to serve as counsel for an indigent party, thebriefs prepared by such counsel will, unless he re-quests otherwise, be printed under the supervisionof the clerk; and the clerk will in any event reim-burse such counsel for necessary travel expenses in-cluding first-class transportation from his home toWashington, D.C., and return in connection withthe argument of the cause.

Rule 51 Page 2242


8. In any case arising on direct review of a judge-ment in a criminal case orignating in a federal courtwhere this court has granted certiorari or noted orpostponed jurisdiction and where the defendant inthe original proceeding is financially unable to ob-tain adequate representation or to meet the neces-sary expenses in this court, the court will appointcounsel who may be compensated, and whose neces-sary expenses may be repaid, to the extent providedby the Criminal Justice Act of 1964 (78 Stat. 552;18 U.S.C. § 3006A).

Rule 54. Veterans' and seamen's cases.1. A veteran suing to establish reemployment

rights under the provisions of Section 9(d) of theUniversal Military Training and Service Act, asas amended (50 U.S.C. App. § 459 (d) ), or under simi-lar provisions of law exempting veterans from thepayment of fees or court costs, may proceed upontypewritten papers as under Rule 53, except that themotion shall ask leave to proceed as a veteran, theaffidavit shall set forth the moving party's status asa veteran, and the case will be placed on the docketthat would have been appropriate for its dispositionhad it been presented on printed papers.

2. A seaman suing pursuant to 28 U.S.C. § 1916may proceed without prepayment of fees or costs orfurnishing security therefor, but he is not relievedof printing costs nor entitled to proceed on type-written papers except by separate motion, or unless,by motion and affidavit, he brings himself withinRule 53.

PART X.-DISPOSITION OF CAUSES

Rule 55. Opinions of the court.1. All opinions of the court shall be handed to the

clerk immediately upon the delivery thereof. He shallcause the same to be printed and shall deliver a copyto the reporter of decisions.

2. The original opinions shall be filed by the clerkfor preservation.

3. Opinions printed under the supervision of thejustices delivering the same need not be copied bythe clerk into a book of records; but at the end ofeach term he shall cause them to be bound in asubstantial manner, and when so bound they shallbe deemed to have been recorded.

Rule 56. Interest and damages.1. Where judgments for the payment of money

are affirmed, and interest is properly allowable, itshall be calculated from the date of the entry of theJudgment below until the same is paid, at the samerate that similiar judgments bear interest in thecourts of the state where such judgment wasrendered.

2. In all cases where an appeal delays proceedingson the Judgment of the lower court, and appears tohave been sued out merely for delay, damages at arate not exceeding 10 per cent, in addition to in-terest, may be awarded upon the amouns of theJudgment.

3. In cases in admiralty, damages and interest maybe allowed only if specially directed by the court.

4. Wheia a petition for writ of certiorari has beenfiled, and there appears to be no ground for granting

such a writ, the court may, in appropriate cases,adjudge to the respondent reasonable damages forhis delay.

Rule 57. Costs.

1. In all cases of affirmance of any judgment ordecree by this court, costs shall be paid by appellantor petitioner unless otherwise ordered by the court.

2. In cases of reversal or vacating of any ludgmentor decree by this court, costs shall be allowed to theappellant or petitioner, unless otherwise ordered bythe court. The cost of the transcript of record fromthe court below shall be a part of such costs, and betaxable in that court as costs in the case.

3. The cost of printing the appendix in this courtis a taxable item. The cost of printing briefs, motions,petitions, and jurisdictional statements is not a tax-able item.

4. In cases where questions have been certified, in-cluding such cases where the certificate is dismissed,costs shall be equally divided unless otherwise or-dered by the court; but where the entire recordhas been sent up (Rule 28, par. 2), and a decisionis rendered on the whole matter in controversy,costs shall be allowed as provided in paragraphs 1and 2 of this rule.

5. In all actions commenced prior to July 18, 1966,no costs shall be allowed in this court either for oragainst the United States or an officer or agencythereof, except where specially authorized by statuteand directed by the court. In all other actions, costsas provided in this rule shall be allowed for or againstthe United States or an officer or agent thereof (un-less expressly waived or otherwise ordered by thecourt) except that no such costs shall be allowedin criminal cases.

6. When costs are allowed in this court, it shallbe the duty of the clerk to insert the amount thereofin the body of the mandate, or other proper process,sent to the court below, and annex to the same thebill of items taxed in detail. The prevailing side insuch a case is not to submit to the clerk any billof costs.

7. In appropriate instances, the court may adjudgedouble costs.

Rule 58. Rehearings.

1. A petition for rehearing of judgments ordecisions other than those denying or granting cer-tiorari, may be filed with the clerk in term time orin vacation, within twenty-five days after judgmentor decision, unless the time is shortened or enlargedby the court or a justice thereof. Such petition mustbriefly and distinctly state its grounds; it must besupported by a certificate of counsel to tie effectthat it is presented in good faith and not for delay;it must be printed in conformity with Rule 39; andforty copies, one of which shall bear the manuscriptsignature of counsel to the certificate, must be filed,accompanied by proof of service as prescribed byRule 33. A petition for rehearing is not subject tooral argument, and will not be granted, except atthe instance of a justice who concurred in the judg-ment or decision and with the concurrence of amajority of the court.

Page 2243 Rule 58


2. A petition for rehearing of orders on petitionsfor writs of certiorari may be filed with the clerk interm time or vacation, subject to the requirementsrespecting time, printing, number of copies fur-nished, manuscript signature to certificate, and serv-ice, as provided in paragraph 1 of this rule. Anypetition filed under this paragraph must briefly anddistinctly state grounds which are confined to inter-vening circumstances of substantial or controllingeffect (e.g., Sanitary Reriyerator Co. v. Wintcrs,280 U.S. 30, 34, footnote 1; Massey v. United States,291 U.S. 608), or to other substantial grounds avail-able to petitioner although not previously presented(e.g., Schriber-Schroth Co. v. Cleveland Trust Co.,305 U.S. 47, 50). Such petition is not subject to oralargument. A petition for rehearing filed under thisparagraph must be supported by a certificate ofcounsel to the effect that it is presented in goodfaith and not for delay, and counsel must also certifythat the petition is restricted to the grounds abovespecified.

3. No reply to a petition for rehearing will bereceived unless requestcd by the court. No petitionfor rehearing will be granted in the absencr of sucha request and an opportunity to submit i, reply inresponse thereto.

4. Consecutive petitions for rehearings, and peti-tions for rehearing that are out of time under thisrule, will not be received.

Rule 59. Process; mandates.

1. All process of this court shall be it; the nameof the President of the United States, and shall con-tain the given names, as well as the suo-ames, ofthe parties.

2. Subject to paragraph 3 of this rule, mandatesshall issue as of course after the expiration of twenty-five days from the day the judgment is entered,unless the time is shortened or enlarged by an orderof the court or of a justice thereof, or unless the

parties stipulate that it be issued sooner. The filingof a petition for rehearing will, unless otherwiseordered, stay the mandate until disposition of suchpetition, and if the petition is then denied, the man-date shall issue forthwith. When, however, a petitionfor rehearing is not acted upon prior to adjourn-ment or is filed after the court adjourns, the judg-ment or mandate of the court will not be stayedunless specifically so ordered by the court or a justicethereof.

3. In cases coming from federal courts, a formalmandate shall not issue unless specially directed. Inthe absence of such direction, it shall suffice for theclerk to send to the proper court, within the timeand under the conditions set out in paragraph 2of this rule, a copy of the opinion or order of thiscourt, and a certified copy of the judgment of thiscourt, which in cases under this paragraph shall in-clude provisions for the recovery of costs If any areawarded.

Rule 60. l)ismissimg causes.

1. Whenever the parties thereto shall, by theirattorneys of record, file with the clerk an agreemcntin writing that an appeal, petition for or writ ofcertiorari, or motion for leave to file or petition foror extraordinary writ be dismissed, specifying theterms as respects costs, and shall pay to the clerkany fees that may be due him, the clerk shall, wWI-out further reference to the court, enter an orderof dismissal,

2. Whenever an appellant or petitioner in thiscourt shall, by his attorney of record, file with dieclerk a motion to dismiss a proceeding to whichle is a party, with proof of service as prescribed byRule 33, and shall tender to the clerk any fees rndcosts that may be due, the adverse party may withinfifteen days after service thereof file an objection,limited to the quantum of damages and costs in thiscourt alleged to be payable, or, in a proper case,to a showing that the moving party does not repre-sent all appellants or petitioners if there are morethan one. The clerk will refuse to receive any objec-tion not so limited.

3. Where the objection goes to the standing of themoving party to represent the entire side, the partymoving for dismissal may within ten days there-after file a reply, after which time the matter shallbe laid before the court for its determination.

4. If no objection is filed, or if upon objectiongoing only to the quantum of damages and costs inthis court, the party moving for dismissal shallwithin ten days thereafter tender the whole of suchadditional damages and costs demanded, the clerkshall, without further reference to the court, enteran order of dismissal. If, after objection as to quan-tum of damages and costs in this court, the movingparty does not respond with such a tender, then theclerk shall report the matter to the court for itsdetermination.

5. No mandate or other process shall issue on adismissal under this rule without an order of thecourt.

PART XI.-APPLICATION oF TERMS

Rule 61. 'i'erto "state court" includes Supreme Courtof i'uerto Rico.

The term "state court" when used in these rulesincludes the Supreme Court of the Commonwealthof Puerto Rico, and references in these rules to thelaw and statutes of a state include the law andstatutes of the Commonwealth of Puerto Rico.

PART XII.-EFFECTIVE DATE

Rule 62. Effective date of amended rules.The amended rules adopted on June 12, 1967, shall

become effective on October 2, 1967, except that withrespect to cases granted review prior to that date,the time limits for briefs and the provisions regard-ing the printing of records shall continue to begoverned by the rules as they were before amend-ment.

Page 2244Rule 59

FEDERAL RULES OF APPELLATE PROCEDURE

ADOPTED DECEMBER 4, 1967, EFFECTIVE JULY 1, 1968, As AMENDED TO DECEMIIER 31, 1969

TITLE I.-APPLICABILITY OF RULES

Rule.1. Scope of Rules2. Suspension of Rules

TITLE II.APPEALS FROM JUDGMENTS ANDORDERS OF DISTRICT COURTS

3. Appeal as of Right-How Taken4. Appeal as of Right--When Taken5. Appeals by Permission Under 28 U.S.C. § 1292(b)6. Appeals by Allowance in Bankruptcy Proceedings7. Bond for Costs on Appeal in Civil Cases8. Stay or Injunct on Pending Appeal0. Release in Criminal Cases

10. The Record on Appeal11. Transmission of the Record12. Docketing the Appeal; Filing of the Record

TITLE III.-REVIEW OF DECISIONS OF THE TAXCOURT OF THE UNITED STATES

13. Review of Decisions of the Tax Court14. Applicability of Other Rules to Review of Decisions

of the Tax Court

TITLE IV.-REVIEW AND ENFORCEMENT OF ORDERSOF ADMINISTRATIVE AGENCIES, BOARDS, COM-MISSIONS AND OFFICERS

15. Review or Enforcement of Agency Orders-How Ob-tained; Intervention

16. The Record on Review or Enforcement17. Filing of the Record18. Stay Pending Review19. Settlement of Judgments Enforcing Orders20. Applicability of Other Rules to Review or Enforce-

ment of Agency Orders

TITLE V.-EXTRAORDINARY WRITS

21. Writs of Mandamus and Prohibition Directed to aJudge or Judges and Other Extraordinary Writs

TITLE VI.-HABEAS CORPUS; PROCEEDINGS INFORMA PAUPERIS

22. Habeas Corpus Proceedings23. Custody of Prisoners in Habeas Corpus Proceedings24. Proceedings in Forma Pauperis

TITLE VII.-OENERAL PROVISIONS

25. Filing and Service26. Computation and Extension of Time27. Motions28. Briefs29. Brief of an Amicus Curiae30. Appendix to the Briefs31. Filing and Service of Briefs32. Form of Briefs, the Appendix and Other Papers33. Prehearing Conference34. Oral Argument35. Determination of Causes by the Court in Banc36. Entry of Judgment37. Interest on Judgments38. Damages for Delay39. Costs40. Petition for Rehearing41. Issuance of Mandate; Stay of Mandate42. Voluntary Dismissal43. Substitution of Parties44. Cases Involving Constitutional Questions Where

United States is Not a Party

Page 224533-381 0-70-vol. 2-45

Rule.45. Duties of Clerks40. Attorneys47. Rules by Courts of Appeals48. Title

FORMSFormI. Notice of Appeal to a Court of Appeels from a Juag-

ment or Order of a District Court2. Notice of Appeal to a Court of Appeals from a Decision

of the 'rax Court3. Petition for Review of Order of an Agency, Board,

Commission or Officer4. Affidavit to Accompany Motion for Leave to Appeal In

Forma Pauperls

EFFECTIVE DATE AND APPLICATION OF RULES

Section 2 of the Order of the Supreme Court, dated Dec.4, 1967, provided: "That the foregoing rules shall takeeffect on July 1, 1968, and shall govern all proceedings inappeals and petitions for review or enforcement of ordersthereafter brought in and in all such proceedings thenpending, except to the extent that In the opinion of thecourt of appeals their application in a particular pro-ceeding then pending would not be feasible or wouldwork injustice, in which case the former procedure maybe followed."

TITLE I.-APPLICABILITY OF RULES

RULE 1.---SCOPE OF RULES

(a) Scope of Rules.

These rules govern procedure in appeals to United

States courts of appeals from the United States dis-trict courts and the Tax Court of the United States;in proceedings in the courts of appeals for review or

enforcement of orders of administrative agencies,

boards, commissions and officers of the United

States; and in applications for writs or other relief

which a court of appeals or a judge thereof is com-

petent to give.

(b) Itules Not to Affect Jurisdiction.

These rules shall not be construed to extend or

limit the jurisdiction of the courts of appeals asestablished by law.

NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES

These rules are drawn under the authority of 28 U.S.C.§ 2072, as amended by the Act of November 0, 1066, 80Stat. 1323 (1 U.S. Code Cong. & Ad. News, p. 1546 (1066))(Rules of Civil Procedure);'28 U.S.C. § 2075 (BankruptcyRules); and 18 U.S.C. §§ 3771 (Procedure to and includ-ing verdict) and 3772 (Procedure after verdict). Thosestatutes combine to give to the Supreme Court power tomake rulei of practice and procedure for all cases with-in the jurisdiction of the courts of appeals. By theterms of the statutes, after the rules have taken effectall laws in conflict with them are of no further force oreffect. Practice and procedure in the eleven courts of ap-peals are now regulated by rules promulgated by eachcourt under the authority of 28 U.S.C. § 2071. Rule 47expressly authorizes the courts of appeals to make rulesof practice not inconsistent with these rules.

As indicated by the titles under which they are found,the following rules are of special application: Rules 3through 12 apply to appeals from Judgments and orders

TITLE 28, APPENDIX.-RULES OF APPELLATE PROCEDURE

of the district courts; Rules 13 and 14 apply to appealsfrom decisions of the Tax Court (Rule 13 establishes anappeal as the mode of review of decisions of the TaxCourt in place of the present petition for review); Rules15 through 20 apply to proceedings for review or enforce-ment of orders of administrative agencies, boards, com-missions and officers. Rules 22 through 24 regulate habeascorpus proceedings and appeals in forma pauperls. Allother rules apply to all proceedings in the courts ofappeals.

RULE 2.-SUSPENSION OF RULES

In the interest of expediting decision, or for othergood cause shown, a court of appeals may, except asotherwise provided in Rule 26(b), suspend the re-quirements or provisions of any of these rules in aparticular case on application of a party or on itsown motion aict may order proceedings in accord-ance with its direction.

NOTES OF ADvIsORY COMMIITEE ON APPELLATE RULES

The primary purpose of this rule is to make clear thepower of the courts of appeals to expedite the determi-nation of cases of pressing concern to the public or to thelitigants by prescribing a time schedule other than thatprovided by the rules. The rule also contains a generalauthorization to the courts to relieve litigants of theconsequences of default where manifest injustice wouldotherwise result. Rule 26(b) prohibits a court of appealsfrom extending the time for taking appeal or seekingreview.

TITLE II.-APPEALS FROM JUDGMENTS ANDORDERS OF DISTRICr COURTS

RULE 3.-APPEAL AS OF RIGHT-How TAKEN

(a) Filing the Notice of Appeal.An appeal permitted by law as of right from a

district court to a court of appeals shall be taken byfiling a notice of appeal with the clerk of the dis-trict court within the time allowed by Rule 4. Fail-ure of an appellant to take any step other than thetimely filing of a notice of appeal does not affect thevalidity of the appeal, but is ground only for suchaction as the court of appeals deems appropriate,which may include dismissal of the appeal. Appealsby permission under 28 U.S.C. § 1292(b) and ap-peals by allowance in bankruptcy shall be taken inthe manner prescribed by Rule 5 and Rule 6,respectively.

(b) Joint or Consolidated Appeals.If two or more persons are entitled to appeal from

a Judgment or order of a district court and their in-terests are such as to make joinder practicable, theymay file a joint notice of appeal, or may join inappeal after filing separate timely notices of appeal,and they may thereafter proceed on appeal as asingle appellant. Appeals may be consolidated byorder of the court of appeals upon its own motionor upon motion of a party, or by stipulation of theparties to the several appeals.

(c) Content of the Notice of Appeal.The notice of appeal shall specify the party or

parties taking the appeal; shall designate the judg-ment, order or part thereof appealed from; and shallname the court to which the appeal is taken. Form 1in the appendix of Forms is a suggested form of anotice of appeal.

(d) Service of the Notice of Appeal.The clerk of the district court shall serve notice

of the filing of a notice of appeal by mailing a copy

thereof to counsel of record of each party otherthan the appellant, or, if a party is not representedby counsel, to the party at his last know address;and in criminal cases, habeas corpus proceedings, orproceedings under 28 U.S.C. § 2255, the clerk shallmail a copy of the notice of appeal and of the docket

entries to the clerk of the court of appeals named

in the notice. When an appeal is taken by a defend-ant in a criminal case, the clerk shall also serve a

copy of the notice of appeal upon him, either bypersonal service or by mail addressed to him. The

clerk shall note on each copy served the date onwhich the notice of appeal was filed. Failure of theclerk to serve notice shall not affect the validity ofthe appeal. Service shall be sufficient notwithstand-ing the death of a party or his counsel. The clerk

shall note in the docket the names of the parties towhom he mails copies, with the date of mailing.

NoTES oF ADVISORY COMMITTEE ON APPELLATE RULES

General Note. Rule 3 and Rule 4 combine to requireitr t a notice of appeal be filed with the clerk of the dis-trict court within tile time prescribed for taking all appeal.Because the timely filing of a notice of appeal is "manda-tory and Jurisdictional," United States v. Robinson, 361U.S. 220, 224, 80 S. Ct. 282, 4 L. Ed. 2d 259 (1960), compli-ance with tile provisions of those rules Is of the utmostimportance. But the proposed rules merely restate, inmodified form, provisions now found in the civil ant crimi-nal rules (FRCP 5(e), 73; FRCrP 37), and decisions underthe present rules which dispense with literal compliancein cases in whiclh it cannot fairly be exacted should con-trol interpretation of these rules. Illustrative decisions are:Fallen v. United States, 378 U.S. 139, 84 S. Ct. 1689, 12L. Ed. 2d 760 (1964) (notice of appeal by a prisoner, in theform of a letter delivered, well within the time fixed forappeal, to prison authorities for mailing to the clerk oftile district court held timely filed notwithstanding thatit was received by the clerk after expiration of the time forappeal; the appellant "did all he could" to effect timelyfiling) ; Richey v. Wilkilns, 335 F. 2d I (2d Cir. 1964) (noticefiled in the court of appeals by a prisoner without assist-ance of counsel held sufficient); Halfen v. United States,324 F. 2d 52 (10th Cir. 1963) (notice mailed to districtjudge in time to have been received by him in normalcourse held sullcient); Riffle v. United States, 299 F. 2d802 (5th Cir. 1162) (letter of prisoner to judge of courtof appeals held sufficient). Earlier cases evidencing "aliberal view of papers filed by indigent and Incarcerateddefendants" are listed in Coppedge v. United States, 369U.S. 438, 442, n. 5, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).

Subdivision (a). The subst-,1e of this subdivision isderived from FRCP 73(a) and F.tCrP 37(a) (1). The pro-posed rule follows those rules in requiring nothing otherthan the filing of a notice of appeal in the district courtfor the perfection of the appeal. The petition for allowance(except for appeals governed by Rules 5 and 6), citations,assignments of error, summons and severance--all specifi-cally abolished by earlier modern rules-are assumed to besufficiently obsolete as no longer to require pointedabolition.

Subdivision (b). The first sentence is derived fromFRCP 74. The second sentence is added to encourage con-solidation of appeals whenever feasible.

Subdivision (c). This subdivision is identical with cor-responding provisions in FRCP 73(b) and FRCrP 37(a) (1).

Ssubdivision (d). This subdivision is derived from FRCP73(b) and FRCrP 37(a) (1). The duty of the clerk toforward a copy of the notice of appeal and of the docketentries to the court of appeals in a criminal case extendedto habeas corpus and 28 U.S.C. § 2255 proceedings.

RULE 4.-APPEAL AS OF RIGHT-WHEN TAKEN

(a) Appeals in Civil Cases.In a civil case (including a civil action which in-

volves an admiralty or maritime claim and a pro-

ceeding in bankruptcy or a controversy arising there-

Rule 2 Page 2246


in) in which an appeal is permitted by law as of rightfrom a district court to a court of appeals the noticeof appeal required by Rule 3 shall be filed with theclerk of the district court within 30 days of thedate of the entry of the judgment or orderappealed from; but if the United States or an officeror agency thereof is a party, the notice of appealmay be filed by any party within 60 days of suchentry. If a timely notice of appeolf is filed by a party,any other party may file a notice of appeal within 14days of the date on which the first notice of Lippealwas filed, or within the time otherwise prescribedby this subdivision, whichever period last expires.

The running of the time for filing a notice ofappeal is terminated as to all parties by a timely mo-tion filed in the district court b any party pur-suant to the Federal Rules of Civil Procedure here-after enumerated in this sentence, and the full timefor appeal fixed by this subdivision commences torun and is to bc computed from the entry of anyof tie following orders made upon a timely motionunder such rules: (1) granting or denying a motionfor judgment under Rule 50(b); (2) granting ordenying a motion under Rule 52(b) to amend ormake additional findings of fact, whether or notan alteration of the judgment would be requiredif the motion is granted; (3) granting or denying amotion under Rule 59 to alter or amend the judg-ment; (4) denying a motion for a new trial underRule 59. A judgment or order is entered within themeaning of this subdivision when it is entered inthe civil docket.

Upon a showing of excusable neglect, the districtcourt may extend the time for filing the notice ofappeal by any party for a period not to exceed 30days from the expiration of the time otherwise pre-scribed by this subdivision. Such an e:ntension maybe granted before or after the time otherwise pre-scribed by this subdivision has expired, but if a re-quest for an extension is made after such time hasexpired, it shall be made by motion withi such noticeas the court shall deem appropriate.

(b) Appeals in Criminal Cases.In a criminal case the notice of appal by . de-

fendant shall be filed in the district tourt within10 days after the entry of the judgment or orderappealed from. A notice of appeal fil-ld after theannouncement of a decision, sentence .:r order butbefore entry of the judgment or order shall betreated as filed after such entry and .n the daythereof. If a timely motion in arrest of j'dgment orfor a new trial on any ground other thai, newly dis-covered evidence ha. been made, an appeal from ajudgment of conviction may be taken within 10days after the entry 6f an order denying the motion.A motion for a new trial based on the ground ofnewly discovered evidence will similarly extend thetime for appeal from a judgment of conviction ifthe motion is made before or within 10 days afterentry of the judgment. When an appeal by the gov-ernment is authorized by statute, the notice of ap-peal shall be filed in the district court within 30days after the entry of the judgment or order ap-pealed from. A judgment or order Is entered withinthe meaning of this subdivision when it is enteredin the criminal docket. Upon a showing of excusable

neglect the district court may, before or after thetime has expired, with or without motion and notice,extend the time for filing a notice of appeal for aperiod not to exceed 30 days from the expiration ofthe time otherwise prescribed by this subdivision.

NOTES OF ADvIsoRY CoMImrrEE ON APPELLATE RULES

Subdivision (a). This subdivision is derived from FRCP73(a) without any change of substance. The requirementthat a request for an extension of time for filing the no-tice of appeal made after expiration of the time be madeby motion and on notice codifies the result reached underthe present provisions of FRCP 73(a) and 6(b). NorthUmberland Mining Co. v. Standard Accident Ins. Co., 193F. 2d 951 (9th Cir., 1952); Cohen v. Plateau Natural GasCo., 303 F. 2d 273 (10th Cir., 1962); Plant Economy, Inc. v.Mirror Insulation Co., 308 F. 2d 275 (3d Mr., 1962).

Since this subdivision governs appeals In all civil cases,it supersedes the provisions of section 25 of the Bank-ruptcy Act (11 U.S.C. § 48). Except i cases to which theUnited States or an officer or agency thereof is a party,the change is a minor one, since a successful litigant in abankruptcy proceeding may, under section 25, oblige anaggrieved party to appeal within 30 days after entry ofJudgment-the time fixed by this subdivision in casesinvolving private parties only-by serving him with no-tice of entry on the day thereof, and by the terms of sec-tion 25 an aggrieved party must in any event appeal within40 days after entry of judgment. No reason appears whythe time for appeal in bankruptcy should not be thesame as that in civil cases generally. Furthermore, section25 is a potential trap for the uninitiated. The time forappeal which it provides is not applicable to all appealswhich may fairly be termed appeals In bankruptcy. Sec-tion 25 governs only those cases referred to in section 24as "proceedings in bankruptcy" and "controversies axis-Ing in proceedings in bankruptcy." Lowenstein v. Relkes,54 F. 2d 481 (2d Cir., 1931), ccrt. den., 285 U.S. 539, 52S. Ct. 311, 76 L. Ed. 932 (1932). The distinction betweensuch cases and other cases which arise out of bank-ruptcy is often difficult to determine. See 2 Moore's Col-lier on Bankruptcy , 24.12 through f 24.36 (1962). Asa result it is not always clear whether an appeal is gov-erned by section 25 or by FRCP 73(a), which is applicableto such appeals in bankruptcy as are not governed bysection 25.

In view of the unification of the civil and admiraltyprocedure accomplished by the amendments of theFederal Rules of Civil Procedure effective July 1, 1966,this subdivision governs appeals in those civil actionswhich involve admiralty or maritime claims and whichprior to that date were known as suits in admiralty.

The only other change possibly effected by this sub-division Is in the time for appeal from a decision of adistrict court on a petition for impeachment of anaward of a board of arbitration under the Act of May 20,1926, c. 347, § 9 (44 Stat. 585). 45 U.S.C. § 150. The actprovides that a notice of appeal from such a decisionshall be filed within 10 days of the decision. This singularprovision was apparently repealed by the enactment in1948 of 28 U.S.C. § 2107, which fixed 30 days from thedate of entry of judgment as the time for appeal in allactions of a civil nature except actions In admiralty orbankruptcy matters or those In which the United Statesis a party. But it was not expressly repealed, and itsstatus is in doubt. See 7 Moore's Federal Practice r 73.09[21 (1966). The doubt should be resolved, and no reasonappears why appeals in such cases should not be takenwithin the time provided for civil cases generally.

Subdivision (b). This subdivision is derved from FRCrP37(a) (2) without change of substance.

RULE 5.-APPEALS BY PERMISSION UNDER 28 U.S.C.

§ 1292(a)

(a) Petition for Permission to Appeal.An appeal from an interlocutory order containing

the statement prescribed by 28 U.S.C. § 1292(b) maybe sought by filing a petition for permission to appealwith the clerk of the court of appeals within 10 days

Page 2247 Rule 5


after the entry of such order in the district court withproof of service on all other parties to the action inthe district court. Aln order may be amended to in-clude the prescribed statement at any time, and per-mission to appeal may be sought within 10 days afterentry of the order as amended.

(b) Content of Petition; Answer.The petition shall contain a statement of the facts

necessary to an understanding of the controllingquestion of law determined by the order of the dis-trict court; a statement of the question itself; and astatement of the reasons why a substantial basisexists for a difference of opinion on the question andwhy an immediate appeal may materially advancethe termination of the litigation. The petition shallinclude or have annexed thereto a copy of the orderfrom which appeal is sought and of any findings offact, conclusions of law and opinion relating thereto.Within 7 days after service of the petition an ad-verse party may file an answer in opposition. Theapplication and answer shall be submitted withoutoral argument unless otherwise ordered.

(c) Form of Papers- Number of Copies.All papers may be typewritten. Three copies shall

be filed with the original, but the court may requirethat additional copies be furnished.

(d) Grant of Permission; Cost 3ond; Filing of Record.If permission to appeal is granted the appellant

shall file a 'bond for costs as required by Rule 7,within 10 days after entry of the order granting per-mission to appeal, and the record shall be trans-mitted and filed and the appeal docketed in accord-ance with Rules 11 and 12. The time fixed by thoserules for transmitting the record and docketing theappeal shall run from the date of the entry of theorder granting permission to appeal. A notice of ap-peal need not be filed.

NOTES or ADVISORY COMMITTEE ON APPELLATE RULES

This rule Is derived in the main from Third Circuit Rule11(2), which is similar to the rule governing appeals tinder28 U.S.C. § 1292(b) in a majority of the circuits. Thesecond sentence of subdivision (a) resolves a conflict overthe question of whether the district court can amend anorder by supplying the statement required by § 1292(b)at any time after entry of the order, with the result thatthe time fixed by the statute commences to run on thedate of entry of the order as amended. Compare Milbertv. Bison Laboratories, 260 F. 2d 431 (3d Cir., 1958) withSperry Rand Corporation v. Bell Telephone Labor, torles,272 F. 2d (2d Cir., 1959), Hadjipateras v. Pacifica, S.A., 290F. 2d 697 (5th Cir., 1961), and Houston Fearless Corpora-tion v. Teter, 313 F. 2d 91 (10th Cir., 1961). The view takenby the Second, Fifth and Tenth Circuits seems theoret-ically and practically sound, and the rule adopts it. Al-though a majority of the circuits now require the filing ofa notice of appeal following the grant of permission toappeal, filing of the notice serves no function other thanto provide a time from which the time for transmittingthe record and docketing the appeal begins to run.

RULE 6.-APPEALS nY ALLOWANCE IN BANKRUPTCYPROCEEDINGS

(a) Petition for Allowance.Allowance of an appeal under section 24 of the

Bankruptcy Act (11 U.S.C. § 47) from orders, de-crees, or judgments of a district court involving lessthan $500, or from an order making or refusing tomake allowances of compensation or reimbursement

under sections 250 or 498 thereof (11 U.S.c. § 650,§ 898) shall be sought by filing a petition for allow-ance with the clerk of the court of appeals within thetime provided by Rule 4(a) for filing a notice of ap-peal, with proof of service on all parties to the actionin the district court. A notice of appeal need not befiled.

(b) Content of Petition; Answer.The petition shall contain a statement of the facts

necessary to an understanding of the questions to bepresented by the appeal; a statement of those ques-tions and of the relief sought; a statement of thereasons why in the opinion of the petitioner the ap-peal should be allowed; and a copy of the order,decree or judgment complained of and of any opin-ion or memorandumn relating thereto. Within 7 daysafter service of the petition an adverse party may filean answer in opposition. The petition and answershall be submitted without oral argument unlessotherwise ordered.

(c) Form of Papers; Number of Copies.All papers may be typewritten, Three copies shall

be filed with the original, but the court may requirethat additional copies 'be furnished.

(d) Allowance of the Appeal; Cost Bond; Filing ofRecord.

If the appeal is allowed the appellant shall file abond for costs as required by Rule 7, within 10 daysof the entry of the order granting permission to ap-peal, and the record shall be transmitted and filedand the appeal docketed in accordance with Rules11 and 12. The time fixed by those rules for trans-mitting the record and docketing the appeal shallrun from the date of the entry of the order allowingthe appeal. A notice of appeal need not be filed.

NOTES OF ADVISORY COMMITEE ON APPELLATE RULES

This rule is substantially a restatement of present pro-cedure. See D.C. Cir. Rule 34; 6th Cir. Rule 11; 7th Cir.Rule 10(d); 10th Cir. Rule 13.

Present circuit rules commonly provide that the petitionfor allowance of an appeal shall be filed within the timeallowed by Section 25 of the Bankruptcy Act for takingappeals of right. For the reasons explained in the Noteaccompanying Rule 4, that rule makes the time for appealIn bankruptcy cases the same as that which obtains inother civil cases and thus supersedes Section 25. Thus thepresent ule simply continues the former practice of mak-ing the time for filing the petition in appeals by allowancethe same as that provided for filing the notice of appealin appeals of right.

RULE 7.-BOND FOR COSTS ON APPEAL IN CIVIL CASES

Unless an appellant is exempted by law, or hasfiled a supersedeas bond or other undertaking whichincludes security for the payment of costs on appeal,in civil cases a bond for costs on appeal or equivalentsecurity shall be filed by the appellant in the districtcourt with the notice of appeal; but security shall notbe required of an appellant who is not subject tocosts. The bond or equivalent security shall be in thesum or value of $250 unless the district court fixesa different amount. A bond for costs on appeal shallhave sufficient surety, and it or any equivalent se-curity shall be conditioned to secure the payment ofcosts if the appeal is finally dismissed or the judg-ment affirmed, or of such costs as the court of appealsmay direct if the Judgment is modified. If a bond orequivalent security in the sum or value of $250 is

Rule 6 Page 2248


given, no approval thereof is necessary. After a bondfor costs oil appeal is filed, an appellee may raisefor determination by the clerk of the district courtobjections to the form of the bond or to the suffi-ciency of the surety. The provisions of Rule 8(b)apply to a surety upon a bond given pursuant to thisrule.


This rule Is derived from FRCP 73(c) without change insubstance.

RULE 8.-STAY OR INJUNCTION PENDING APPEAL

(a) Stay Must Ordinarily Ile Sought in the FirstInstance in )istrict Court; Motion for Stay inCourt of Appeals.

Application for a stay of the judgment or order ofa district court pending appeal, or for approval of asupersedeas bond, or for an order suspending, inodi-fying, restoring or granting an injunction during thependency of an appeal must ordinarily be made inthe first instance in the district court. A motion forsuch relief may be made to the court of appeals orto a judge thereof, but the motion shall show thatapplication to the district court for the relief soughtis not practicable, or that the district court hasdenied an application, or has failed to afford therelief which the applicant requested, with the reasonsgiven by the district court for its action. The motionshall also show the reasons for the relief requestedand the facts relied upon, and if the facts are sub-Ject to dispute the motion shall be supported by affi-davits or other sworn statements or copies thereof.With the motion shall be filed such parts of the rec-ord as are relevant. Reasonable notice of the motionshall be given to all parties. The motion shall befiled with the clerk and normally will be consideredby a panel or division of the court, but in exceptionalcases where such procedure would be impracticabledue to the requirements of time, the application maybe made to and considered by a single judge of thecourt.

(b) Stay May Be Conditioned Upon Giving of Bond;Proceedings Against Sureties.

Relief available in the court of appeals under thisrule may be conditioned upon the filing of a bondor other appropriate security in the district court.If security is given In the form of a bond or stipula-tion or other undertaking with one or more sureties,each surety submits himself to the jurisdiction of thedistrict court and irrevocably appoints the clerk ofthe district court as his agent upon whom any papersaffecting his liability on the bond or undertaking maybe served. His liability may be enforced on motionin the district court without the necessity of an in-dependent action. The motion and such notice ofthe motion as the district court prescribes may beserved on the clerk of the district court, who shallforthwith mail copies to the sureties if their ad-dresses are known,

(c) Stays in Criminial Cases.Stays in criminal cases shall be had in accordance

with the provisions of Rule 38(a) of the FederalRules of Criminal Procedure.

NOTES OF ADVISORY COMMITTEE ON APPELLATE RULESSubdivision (a). While Vle1power of a court of appeals

to stay proceedings in the district court during the pend-

ency of an appeal is not explicitly conferred by statute, Itexists by virtue of the all writs statute, 28 U.S.C. § 1651.Eastern Greyhound Lines v. Fusco, 310 F. 2d 632 (6th Cir.,1962): United States v. Lynd, 301 F. 2d 818 (5th Cir., 1962):Public Utilities Commission of Dist. of Col. v. CapitalTransit Co., 94 U.S. App. D.C. 140, 214 F. 2d 242 (1954).And the Supreme Court has termed the power "inherent"(In re McKenzie, 180 U.S. 536, 551, 21 S. Ct. 468, 45 L.Ed. 657 (1901)) and "part of its (the court of appeals)traditional equipment for the administration of justice."(Scripps-Howard Radio v. F.C.C., 316 U.S. 4, 9-10, 62 S.Ct. 875, 86 L. Ed. 1229 (1942) ). The power of a single Judgeuf the court of appeals to grant a stay pending appeal wasrecognized in In re McKenzie, supra. Alexander v. UnitedStates. 173 F. 2d 865 (9th Cir., 1949) held that a singlejudge could not stay the judgment of a district court,but It no,ed the absence of a rule of court authorizing thepractice. FRCP 62(g) adverts to the grant of a stay by aIngle Judge of the appellate court. The requirement that

application be first inade to the district court is the caselaw rule. Cumberland Tel. & Tel. Co. v. Louisiana PublicService Commission, 260 U.S. 212, 219, 43 S. Ct. 75, 67 L.Ed. 217 (1922); United States v. EI-O-PathIc Pharmacy,192 F. 2d 62 (9th Cir., 1951); United States v. Hansell, 109F. 2d 613 (2d Cir., 1940). The requirement is explicitlystated in FRCrP 38(c) and in tile rules of the First, Thnrd,Fourth and Tenth Circuits. See also Supreme Court Rules18 and 27.

The statement of tile requirement in the proposed rulewould work a minor change in present practice. FRCP73(e) requires that if a bond for costs on appeal or asupersedeas bond Is offered after the appeal is docketed,leave to file the bond must be obtained from the courtof appeals. There appears to be no reason why mattersrelating to supersedeas and cost bonds should not beinitially presented to the district court whenever theyarise prior to the disposition of the appeal. The require-nent of FRCP 73(e) appears to he a concession to tileview that once an appeal is perfected, the district courtloses all power over its judgment. See In re Federal Facil-ities Trust, 227 F. 2d 651 (7th Cir., 1955) and cases citedat 654-655. No reason appears why all questions relatedto supersedeas or tile bond for costs oIl appeal should notbe presented il the first instance to the district courtin the ordinary case.

Subdiision (b). The provisions respecting a suretyupon a bond or other undertaking are based upon FRCP65.1.

RULE 9.-RELEASE IN CRIMINAL CASES

(a) Appeals front Orders Respecting Release EnteredPrior to a Jlidlgnent of Conviction.

An appeal authorized by law from an order re-fusing or imposing conditions of release shall bedetermined promptly. Upon entry of an order refus-ing or imposing conditions of release, the districtcourt shall state in writing the reasons for the actiontaken. The appeal shall be heard without the neces-sity of briefs after reasonable notice to the appelleeupon such papers, affidavits, and portions of therecord as the parties shall present. The court ofappeals or a judge thereof may order the release ofthe appellant pending the appeal.

(h) Release Pending Appeal from a JudIgnient of Coil-victimo.

Application for release after a judgment of con-viction shall be made in the first instance in thedistrict court. If the district court refuses releasepending appeal, or imposes conditions of release, thecourt shall state in writing the reasons for the actiontaken. Thereafter, if an appeal is pending, a motionfor release, or for modification of the conditions ofrelease, pending review may be mede to the courtof appeals or to a judge thereof. The motion shallbe determined promptly upon such papers, affidavits,and portions of the record as the parties shall present

Page 2249 Rule 9


and after reasonable notice to the appellee. The courtof appeals or a judge thereof may order the releaseof the appellant pending disposition of the motion.

NOTES OF ADVISORY CoiMhirrEE ON APPELLATE RULES

Subdirision (a). The appealability of release ordersentered prior to a judgment of conviction is determinedby the provisions of 18 U.S.C. § 3147, as qualified by 18U.S.C. § 3148, and by tie rule announced in Stack v.Boyle, 342 U.S. 1. 72 S. Ct. 1, 96 L. Ed. 3 (1951), holdingcertain orders respecting release appealable as inal ordersunder 28 U.S.C. § 1291. The language of the rule, "(an) nappeal authorized by law from an order refusing or im-posing conditions of release," is intentionally broaderthan that used in 18 U.S.C. § 3147 in describing ordersmade appealable by tlt section. The summary procedureordained by the rule is Intended to apply to all appealsfrom orders respecting release, and it would appear thatat least some orders not made appealable by 18 U.S.C.§ 3147 are nevertheless appealable under the Stack V.Boyle rationale. See, for example, United States v. Fos-ter, 278 F. 2d 567 (2d Cir., 1960), holding appealable anorder refusing to extend bail limits. Note also the pro-visions of 18 U.S.C. § 3148, which after withdrawing frompersons charged with an offense punishable by deathand from those wio have been convicted of an offense theright of appeal granted by 18 US C. § 3147, expressly pre-serves 'other rights to Judicial review of conditions ofrelease or orders of detention."

The purpose of the subdivision Is to Insure the expe-ditious determination of appeals respecting release orders,an expedition commanded by 18 U.S.C. k 3147 and bythe Court in Stack v. Boyle, supra. It permits such ap-peals to be heard on an informal record without thenecessity of briefs and on reasonable notice. Equallyimportant to the just and speedy disposition of theseappeals Is the requirement that the district court statethe reasons for its decision. See Jones v. United States,:358 F. 2d 543 (D.C. Cir., 1966); Rhodes v. United States,275 F. 2d 78 (4th Cir., 1960); United States v. Williams,253 F. 2d 144 (7th Cir., 1958).

Subditision (b). This subdivision regulates procedurefor review of an order respecting release at a time whenthe jurisdiction of the court of appeals has already at-tached by virtue of an appeal from the Judgment ofconviction. Notwithstanding the fact that jurisdictionhas passed to the court of appeals, both 18 U.S.;, § 3148and FRCrP 38(c) contemplate that the initial determi-nation of whether a convicted defendant is to be releasedpending the appeal Is to be made by the district court.But at this point there is obviously no need for a separateappeal from the order of the district court respectingrelease. The court of appeals or a judge thereof has powerto effect release on motion as an Incident to the pendingappeal. See FRCrP 38(c) and 46 (a) (2). Bitt the motionIs functionally identical with the appeal regulated bysubdivision (a) and requires the same speedy determina-tion if relief is to be effective. Hence the similarity of theprocedure outlined in the two subdivisions.

RULE 10.-THE RECORD ON APPEAL

(a) Compositioln of the Record on.Appeal.The original papers and exhibits filed in the district

court, the transcript of proceedings, if any, and acertified copy of the docketentlries prepared by theclerk of the district court shall constitute the recordon appeal in all cases.

(b) The Transcript of Proceedings; Duty of Appellantto Order; Notice to Appellee if Partial Transcriptis Ordered.

Within 10 days after filing the notice of appeal theappellant shall order from the reporter a transcriptof such parts of the proceedings not already on fileas he deems necessary for inclusion in the record.If the appellant intends to urge on appeal that afinding or conclusion is unsupported by the evidenceor is contrary to the evidence, he shall include inthe record a transcript of all evidence relevant to

such finding or conclusion. Unless the entire tran-script is to be included, the appellant shall, withinthe time above provided, file and serve on the ap-pellee a description of the parts of the transcriptwhich he intends to include in the record and astatement of the issues he intends to present on theappeal. If the appellee deems a transcript of otherparts of the proceedings to be necessary he shall,within 10 days after the service of the statement ofthe appellant, file and serve on the appellant adesignation of additional parts to be included. Ifthe appellant shall refuse to order such parts, theappellee shall either order the parts or apply to thedistrict court for an order requiring the appellant todo so. At the time of ordering, a party must makesatisfactory arrangements with the reporter forpayment of the cost of the transcript.

(c) Statement of the Evidence or Proceedings Whenno lteport Was Made or When tile Transcript isUnavailable.

If no report of the evidence or proceedings at ahearing or trial was made, or if a transcript is un-available, the appellant may prepare a statementof the evidence or proceedings from the best avail-able means, including his recollection. The statementshall be served on the appellee, who may serve ob-jections or propose amendments thereto within 10days after service. Thereupon the statement andany objections or proposed amendments shall besubmitted to the district court for settlement andapproval and as settled and approved shall be in-cluded by the clerk of the district court in the recordon appeal.

(d) Agreed Statement as the Record on Appeal.In lieu of the record on appeal as defined in sub-

division (a) of this rule, the parties may prepareand sign a statement of the case showing how theissues presented by the appeal arose and were decidedin the district court and setting forth only so manyof the facts averred and proved or sought to beproved as are essential to a decision of the issuespresented. If the statement conforms to the truth, it,together with such additions as the court may con-sider necessary fully to present the issues raised bythe appeal, shall be approved by the district courtand shall then be certified to the court of appealsas the record on appeal and transmitted thereto bythe clerk of the district court within the time pro-vided by Rule 11. Copies of the agreed statement maybe filed as the appendix required by Rule 30.

(e) Correction or Modification of the Record.If any difference arises as to whether the record

truly discloses what occurred in the district court,the difference shall be submitted to and settled bythat court and the record made to conform to thetruth. If anything material to either party is oinittedfrom the record by error or accident or is misstatedtherein, the parties by stipulation, or th districtcourt either before or after the record is transmittedto the court of appeals, or the court of appeals, onproper suggestion or of its own initiative, may directthat the omission or misstatement be corrected, andif necessary that a supplemental record be certifiedand transmitted. All other questions as to the formand content of the recorld-hall be presented to thecourt of appeals.

Rule 10 Page 2250


NoTEs OF ADVISORY COMMITTEE ON APPELLATE RULES

This rule Is derived from FRCP 75 (a), (b), (c) and (d)and FRCP 76, without change in substance.

RULE ll.-TRANSMISSION OF THE RECORD

(a) Time for Transmission; Duty of Appellant.The record on appeal, including the transcript and

exhibits necessary for the determination of the ap-peal, shall be transmitted to the court of appealswithin 40 days after the filing of the notice of appealunless the time is shortened or extended by an orderentered under subdivision (d) of this rule. After filingthe notice of appeal the appellant shall comply withthe provisions of Rule 10(b) and shall take anyother action necessary to enable the clerk to assem-ble and transmit the record. If more than one appealis taken, each appellant shall comply with the pro-visions of Rule 10(h) and this subdivision, and asingle record shall be transmitted within 40 daysafter the filing of the final notice of appeal.

(b) I)uty of Clerk to Transmit the Record.When the record is complete for p1uloses of the

appeal, the clerk of the district court shall transmitit to the clerk of the court of appeals. The clerk ofthe district court shall number the documents com-prising the 'ecord and shall transmit with the recorda list of the documents correspondingly numberedand identified with reasonable definiteness. Docu-ments of unusual bulk or weight and physical ex-hibits other than documents shall not be trans-mitted by the clerk unless he is directed to do so by aparty or by the clerk of the court of appeals. Aparty must make advance arrangements with theclerks for tae transportation and receipt of exhibitsof unusua' bulk or weight.

Transrission of the record is effected when theclerk of the district court mails or otherwise for-wards the record to the clerk of the court of appeals.The clerk of the district court shall indicate, byendorsement on the face of the record or otherwise,the date upon which it is transmitted to the court ofappeals.

(c) Temporary Retention of Record in District Courtfor Use in Preparing Appellate Papers.

Notwithstanding the provisions of subdivisions (a)and (b) of this rule, the parties may stipulate, orthe district court on motion of any party may order,that the clerk of the district court shall temporarilyretain the record for use by the parties in preparingappellate papers. In that event, the appellant shallnevertheless cause the appeal to be docketed andthe record to be filed within the time fixed or al-lowed for transmission of the record by complyingwith the provisions of Rule 12(a) and by presentingto the clerk of the court of appeals a partial recordin the form of a copy of the docket entries, accom-panied by a certificate of counsel for the appellant,or of the appellant if he is without counsel, recitingthat the record, including the transcript or partsthereof designated for inclusion and all necessaryexhibits, is complete for purposes of the appeal. Uponreceipt of the brief of the appellee, or at such earliertime as the parties may agree or the court mayorder, the appellant shall request th,, clerk of thedistrict court to transmit the record.

(d) Extension of Time for Transmission of the 1ec-ord; Reduction of Time.

The district court for cause shown may extend thetime for transmitting the record. A request for ex-tension must be made within the time originallyprescribed or within an extension previously granted,and the district court shall not extend the time to aday more than 90 days from the date of filing of thefirst notice of appeal. If the district court is withoutauthority to grant the relief sought or has denied arequest therefor, the court of appeals may on motionfor cause shown extend the time for transmitting therecord or may permit the record to be transmittedand filed after the expiration of the time allowed orfixed. If a request for an extension of time for trans-mitting the record has been l)reviously denied, themotion shall se. forth the denial and shall state thereasons therefor, if any were given. The district courtor the court of appeals may require the record to betransmitted and the appeal to be docketed at anytime within the time otherwise fixed or allowedtherefor.

(e) letention of thel Record in the District Court byOrder of Court.

The court of appeals may provide by rule or orderthat a certified copy of the docket entries shall betransmitted in lieu of the entire record, subject tothe right of any party to request at any time duringthe pendency of the appeal that designated partsof the record be transmitted.

If the record or any part thereof is required in thedistrict court for use there pending the appeal, thedistrict court may make an order to that effect, andthe clerk of the district court shall retain the recordor parts thereof subject to the request of the courtof appeals, and shall transmit a copy of the order andof the docket entries together with such parts of theoriginal record as the district court shall allow andcopies of such parts as tile parties may designate.

(f) Stipulation of Parties that Parts of the Record beRetained in the District Court.

The parties may agree by written stipulation filedin the district court that designated parts of the rec-ord shall be retained in the district court unlessthereafter the court of appeals shall order or anyparty shall request their transmittal. The parts thusdesignated shall nevertheless be a part of the recordon appeal for all purposes.

(g) Record for lPreliminary Hearing in the Court ofAppeals.

If prior to the time the record is transmitted aparty desires to make in the court of appeals amotion for dismissal, for release, for a stay pendingappeal, for additional security on the bond on ap-peal or on a supersedeas bond, or for any intermedi-ate order, the clerk of the district court at the requestof any party shall transmit to the court of appealssuch parts of the original record as any party shalldesignate.


Subdivisions (a) and (b). These subdivisions are de-rived from FRCP 73(g) and FRCP 75(e). FRCP 75(e)presently directs the clerk of the district court to traIs-mit the record within the time allowed or fixed for Its fil-ing, which, under the provisions of FRCP 73(g) is within40 days from the date of filtng the notice of appeal, unless

Page 2251 Rule 11


an extension is obtained from the district court. The pre-cise time at which the record must be transmitted thusdepends upon the time required for delivery of the recordfrom the district court to the court of appeals, since, topermit its timely filing, it must reach the court of ap-peals before expiration of the 40-day period of an exten-sion thereof. Subdivision (a) of this rule provides thatthe record is to be transmitted within the 40-day period,or any extension thereof; subdivision (b) provides thattransmission is effected when the clerk of the districtcourt malls or otherwise forwards the record to the clerkof the court of appeals; Rule 12(b) directs the clerk ofthe court of appeals to file the record upon its receiptfollowing timely docketing and transmittal. It can thusbe determined with certainty precisely when the clerk ofthe district court must forward the record to the clerk ofthe court of appeals in order to effect timely filing: thefinal day of the 40-day period or of any extension thereof.

Subdivision (c). This subdivision is derived from FhCP75(e) without change of substance.

Subdivision (d). This subdivision is derived from FRCP73(g) and FRCrP 39(c). Under present rules the districtcourt is empowered to extend the time for filing the recordand docketing the appeal. Since under the proposed ruletimely transmission now insures timely filing (see noteto subdivisions (a) and (b) above) the power of thedistrict court is expressed In terms of its power to extendthe time for transmitting the record. Restriction of thatpower to a period of 90 days after the filing of the noticeof appeal represents a change in tle rule with respectto appeals in criminal cases. FRCrP 39(c) now permitsthe district court to extend the time for filing and docket-ing without restriction. No good reason appears for a dif-ference between the civil and criminal rule in this regard,and subdivision (d) limits the power of the district courtto extend the time for transmitting the record in all casesto 90 days from the date of filing the notice of appeal,just as its power is now limited with respect to docketingand filing in civil cases. Subdivision (d) makes explicitthe power of the court of appeals to permit the recordto be filed at any time. See Pyramid Motor Freight Cor-poration v. Ispass, 330. U.S. 695, 67 S. Ct. 954, 91 L. Ed.1184 (1947).

Subdivisions (e), (f) and (g) . These subdivisions arederived from FRCP 75 (f), (a) and (g), respectively,without change of substance.

RULE 12.-DOCKETING OF THE APPEAL; FILING OF THE

RECORD

(a) Docketing the Appeal.Within the time allowed or fixed for tiansmission

of the record, the appellant shall pay to the clerkof the court of appeals the docket fee fixed by theJudicial Conference of the United States pursuantto 28 U.S.C. § 1913, and the clerk shall thereuponenter the appeal upon the docket. If an appellantis authorized to prosecute the appeal without pre-payment of fees, the clerk shall enter the appealupon the docket at the request of a party or at thetime of filing the record. The court of appeals mayupon motion for cause shown enlarge the time fordocketing the appeal or permit the appeal to bedocketed out of time. An appeal shall be docketedunder the title given to the action in the districtcourt, with the appellant identified as such, but ifsuch title does not contain the name of the appel-lant, his name, identified as appellant, shall be addedto the title.

(b) Filing of the Record.Upon receipt of the record or of papers authorized

to be filed in lieu of the record under the provisionsof Rule 11 (c) and (e) by the clerk of the court ofappeals following timely transmittal, and after theappeal has been tinely docketed, the clerk shall file

the record. The clerk shall immediately give notice

to all parties of the date on which the record wasfiled.

(c) Dismissal for Failure of Appellant to Cause'riniely Transmission or to Docket Appeal.

If the appellant shall fail to cause timely trans-mission of the record or to pay the docket fee if adocket fee is required, any appellee may file a motionIn the court of appeals to dismiss the appeal. Themotion shall be supported by a certificate of theclerk of the district court showing the date and sub-stance of the judgment or order from which theappeal was taken, the date on which the notice ofappeal was filed, the expiration date of any orderextending the time for transmitting the record, andby proof of service. The appellant may respond with-in 14 days of such service. The clerk shall docket theappeal for the purpose of permitting the court toentertain the motion without requiring payment ofthe docket fee, but the appellant shall not be per-mitted to respond without payment of the fee unlesshe is otherwise exempt therefrom

NOTES OP ADVISORY CohMmrEE ON APPELLATE RULES

Subdivision (a). All that is involved in the docketing ofan appeal is the payment of the docket fee. In practice.after the clerk of the court of appeals receives the recordfrom the clerk of the district court he notifies the appel-lant of its receipt and requests payment of the fee. Uponreceipt of the fee, the clerk enters the appeal upon thedocket and files the record. The appellant is allowed topay the fee at any time within the time allowed or fixedfor transmission of the record and thereby to dischargehis responsibility for docketing. The final sentence is addedin the interest of facilitating future reference and cita-tion ai_ location of cases in indexes. Compare 3d Cr.Rule 10(2); 4th Cir. Rule 9(8); 6th Cir. Rule 14(1).

Subdivision (c). The rules of the circuits generally per-mit the appellee to move for dismissal in the event theappellant fails to effect timely filing of the record. See 1stCir. Rule 21(3); 3d Cir. Rule 21(4); 5th Cir. Rule 16(1);8th Cir. Rule 7(d).

TITLE III.-REVIEW OF DECISIONS OF THE

TAX COURT OF THE UNITED STATES

RULE 13.-REVIEW OF DECISIONS OF THE TAX COURT

(a) How Obtained; Time for Filing Notice of Appeal.Review of a decision of the Tax Court of the United

States shall be obtained by filing a notice of appealwith the clerk of the Tax Court within 90 days afterthe decision of the Tax Court is entered. If a timelynotice of appeal is filed by one party, any other partymay take an appeal by filing a notice of appeal within120 days after the decision of the Tax Court is en-tered.

The running of the time for appeal is terminatedas to all parties by a timely motion to vacate or re-vise a decision made pursuant to the Rules of Prac-tice of the Tax Court. The full time for appealcommences to run and is to be computed from theentry of an order disposing of such motion, or fromthe entry of decision, whichever Is later.

(b) Notice of Appeal-How Filed.The notice of appeal may be filed by deposit in the

office of the clerk of the Tax Court in the Districtof Columbia or by mail addressed to the clerk. If anotice is delivered to the clerk by mail and is receivedafter expiration of the last day allowed for filing, thepostmark date shall be deemed to be the date of

Rule 12 Page 2252


delivery, subject to the provisions of § 7502 of theInternal Revenue Code of 1954, as amended, andthe regulations promulgated pursuant thereto.

(c) Content of the Notice of Appeal; Service of theNotice; Effect of Filing and Service of the Notice.

The content of the notice of appeal, the mannerof its service, and the effect of the filing of the noticeand of its service shall be as prescribed by Rule 3.Form 2 in the Appendix of Forms is a suggestedfrom of the notice of appeal.

(d) The Record on Appeal; Transmission of tie Rec-ord; Filing of the Record.

The provisions of Rules 10, 11 and 12 respectingthe record and the time and manner of its trans-mission and filing and the docketing of the appealin the court of appeals in cases on appeal from thedistrict courts shall govern in cases on appeal fromthe Tax Court. Each reference in those rules and inRule 3 to the district court and to the clerk of thedistrict court shall be read as a reference to the TaxCourt and to the clerk of the Tax Court, respectively.If appeals are taken from a decision of the Tax Courtto more than one court of appeals, the original recordshall be transmitted to the court of appeals namedin the first notice of appeal filed. Provision for therecord in any other appeal shall be made upon ap-propriate application by the appellant to the courtof appeals to which such other appeal Is taken.

NOTES OF ADvisoRy COMMITTEE ON APPELLATE RULES

Subdtvision (a). This subdivision effects two changesin practice respecting review of Tax Court decisions: (1)Section 7483 of the Internal Revenue Code, 68A Stat.891, 26 U.S.C. § 7483, provides that review of a Tax Courtdecision may be obtained by filing a petition for review.The subdivision provides for review by the filing of thesimple and familiar notice of appeal used to obtain reviewof district court judgments; (2) Section 7483, supra,requires that a petition for review be filed within 3months after a decision is rendered, and provides thatif a petition is so filed by one party, any other party nayfile a petition for review within 4 months after the deci-sion Is rendered. In the Interest of fixing the time forreview with precision, the proposed rule substitutes "90days" and "123 days" for the statutory "3 months" and"4 months", respectively. The power of the Court toregulate these details of practice is clear. Title 28 U.S.C.* 2072, as amended by the Act of November 6, 1966, 80Stat. 1323 (1 U.S. Code Cong. & Ad. News, p. 1546 (1066)),authorizes the Court to regulate ". . . practice and pro-cedure in proceedings for the review by the courts ofappeals of decisions of the Tax Court of the UnitedStates .... "

The second paragraph states the settled teaching of thecase law. See Robert Louis Stevenson Apartments, Inc. v.C. I. R., 337 F. 2d 681, 10 A.L.R. 3d 112 (8th Cir., 1964):Denholm & RicKey Co. v. C. I. R., 132 F. 2d 243 (1st Cir.,1942); Helvering v. Continental Oil Co., 63 App. D.C. 5,68 F. 2d 750 (1934); Burnet v. Lexington Ice & Coal Co.,62 F. 2d 906 (4th Cir., 1933); Griffiths v. C. I. R., 50 F. 2d782 (7th Cir., 1931).

Subdivision (b). The subdivision incorporates the statu-tory provision (Title 26, U.S.C., § '7502) that timely mail-ing is to be treated as timely filing. The statuta containsspecial provisions respecting other than ordinary mailing.If the notice of appeal is sent by registered mail, regis-tration Is deemed prima facie evidence that the noticewas delivered to the clerk of the Tax Court, and the dateof registration is deemed the postmark date. If the noticeof appeal is sent by certified mail, the effect of certifica-tion with respect to prima facie evidence of delivery andthe postmark date depends upon regulations of the Sec-retary of the Treasury. The effect of a postmark madeOther than by the United States Post Office likewise de-pends upon regulations of the Secretary. Current regula-tions are found in 26 CFR § 301.7502-1.

RULE 14.-APPLICABILITY OF OTHER RULES TO REVIEWOF DECISIONS OF TIlE TAX COURT

All provisions of these rules are applicale to re-view of a decision of the Tax Court, except thatRules 4-9, Rules 15-20, and Rules 22 and 23 are notapplicable.

NOTES OF ADvisoRy CoimihrrEE ON APPELLATE RULES

The proposed rule continues the present uniformpractice of the circuits of regulating review of decisionsof the Tax Court by the general rules applicable to appealsfrom judgments of the district courts.

TITLE IV.-REVIEW AND ENFORCEMENT OFORDERS OF ADMINISTRATIVE AGENCIES,BOARDS, COMMISSIONS AND OFFICERS

RULE 15.-REVIEW OR ENFORCEMENT OF AGENCY

ORDERs-How OBTAINED, INTERVENTION

(a) Petition for Review of Order; Joint Petition.Review of an order of an administrative agency,

board, commission or officer (hereinafter, the term"agency" shall include agency, board, commission orofficer) shall be obtained by filing with the clerk of acourt of appeals which Is authorized to review suchorder, within the time prescribed by law, a petitionto enjoin, set aside, suspend, modify or otherwisereview, or a notice of appeal, whichever form Is in-dicated by the applicable statute (hereinafter, theterm "petition for review" shall include a petition toenjoin, set aside, suspend, modify or otherwise re-view, or a notice of appeal). The petition shall spec-ify the parties seeking review and shall designate therespondent and the order or part thereof to be re-viewed. Form 3 in the Appendix of Forms is a sug-gested form of a petition for review. In each case theagency shall be named respondent. The UnitedStates shall also be deemed a respondent if so re-quired by statute, even though not so designatedin the petition. If two or more persons are entitledto petition the same court for review of the sameorder and theii interests are such as to make joinderpracticable, they may file a joint petition for reviewand may thereafter proceed as a single petitioner.

(b) Application for Enforcement of Order; Answer;Defauit; Cross-Application for Enforcement.

An application for enforcement of an order of anagency shall be filed with the clerk of a court ofappeals which is authorized to enforce the order.The application shall contain a concise statement ofthe proceedings in which the order was entered, thefacts upon which venue is based, and the reliefprayed. Within 20 days after the application is filed,the respondent shall serve on the petitioner and filewith the clerk an answer to the application. If therespondent fails to file an answer within such time,judgment will be awarded for the relief prayed. Ifa petition is filed for review of an order which thecourt has jurisdiction to enforce, the respondentmay file a cross-application for enforcement.

(c) Service of Petition or Application.A copy of a petition for review or of an application

or cross-application for enforcement of an ordershall be served by the clerk of the court of appealson each respondent in the manner prescribed byRule 3(d), unless a different manner of service Is

Page 2253 Rule 15


prescribed by an applicable statute. At the time offiling, the petitioner shall furnish the clerk with acopy of the petition or application for each respond-ent. At or before the time of filing a petition forreview, the petitioner shall serve a copy thereof onall parties who shall have been admitted to partici-pate in the proceedings before the agency other thanrespondents to be served by the clerk, and shall filewith the clerk a list of those so served.

(d) Intervention.Unless an applicable statute provides a different

method of Intervention, a person who desires to in-tervene in a proceeding under this rule shall serveupon all parties to the proceeding and file with theclerk of the court of appeals a motion for leave toIntervene. The motion shall contain a concise state-ment of the Interest of the moving party and thegrounds upon which intervention is sought. A mo-tion for leave to intervene or other notice of inter-vention authorized by an applicable statute shall befiled within 30 days of the date on which the petitionfor review is filed.


General Note. The power of the Supreme Court toprescribe rules of practice and procedure for the judicialreview or enforcement of orders of administrative agen-cies, boards, commissions, and officers is conferred by 28U.S.C. § 2072, as amended by the Act of November 6, 1966,§ 1, 80 Stat. 1323 (1 U.S. Code Cong. & Ad. News, p. 1546(1966)). Section 11 of the Hobbs Administrative OrdersReview Act of 1950, 64 Stat. 1132, reenacted as 28 U.S.C.§ 2352 (28 U.S.C.A. § 2352 (Suppl. 1966) ), repealed bythe Act of November 6, 1966, § 4, supra, directed thecourts of appeals to adopt and promulgate, subject toapproval by the Judicial Conference rules governingpractice and procedure in proceedings to review theorders of boards, commissions and officers whose orderswere made reviewable in the courts of appeals by theAct. Thereafter, the Judicial Conference approved a uni-form rule, and that rule, with minor variations, is nowin effect in all circuits. Third Circuit Rule 18 is a typicalcircuit rule, and for convenience it Is referred to as theuniform rule In the notes which accompany rules underthis Title.

Subdivision (a). The uniform rule (see General Noteabove) requires that the petition for review contain"a concise statement, in barest outline, of the natureof the proceedings as to which relief is sought, the factsupon which venue is based, the grounds upon whichrelief is sought, and the relief prayed." That languageis derived from Section 4 of the Hobbs AdministrativeOrders Review Act of 1950, 64 Stat. 1130, reenacted as28 U.S.C. 2344 (28 U.S.C.A. § 2344 (Suppl. 1966) ). A fewother statutes also prescribe the content of the petition,but the great majority are silent on the point. The pro-posed rule supersedes 28 U.S.C. § 2344 and other statutoryprovisions prescribing the form of the petition for reviewand permits review to be initiated by the filing of asimple petition similar in form to the notice of appealused in appeals from judgments of district courts. Themore elaborate form of petition for review now requiredis rarely useful either to the litigants or to the courts.There is no effective, reasonable way of obliging peti-tioners to come to the real issues before those issues areformulated in the briefs. Other provisions of this sub-division are derived from sections 1 and 2 of the uniformrule.

Subdivision (b). This subdivision is derived from sec-tions 3, 4 and 5 of the uniform rule.

Subdivision (c), This subdivision is derived from sec-tion I of the uniform rule.

Subdivision (d). This subdivision is based upon section6 of the uniform rule. Statutes occasionally permit inter-vention by the filing of a notice of intention to intervene.The uniform rule does not fix a time limit for intervention,and the only time limits fixed by statute are the 30-day

periods found in the Communications Act Amendments,1952, § 402(e), 66 Stat. 719, 47 U.S.C. § 402(e), and theSugar Act of 1948, § 205(d), 61 Stat. 927, 7 U.S.C. § 1115(d).

RULE 16.-THE RECORD ON REVIEW ORENFORCEMENT

(a) Composition of the Record.The order sought to be reviewed or enforced, the

findings or report on which it is based, and the plead-ings, evidence and proceedings before the agencyshall constitute the record on review in proceedingsto review or enforce the order of an agency.

(b) Omissions from or Misstatements in the Record.If anything material to any party is omitted from

the record or is misstated therein, the parties mayat any time supply the omission or correct the mis-statement by stipulation, or the court may at anytime direct that the omission or misstatement becorrected and, if necessary, that a supplementalrecord be prepared and filed.

NOTES OF Aovrsoay COMMrrEE ON APPELLATE RULESSubdivision (a) is based upon 28 U.S.C. § 2112(b).

There is no distinction between the record compiled inthe agency proceeding and the record on review; they areone and the same. The record in agency cases is thusthe same as that in appeals from the district court-theoriginal papers, transcripts and exhibits in the proceedingbelow. Subdivision (b) is based upon section 8 of theuniform rule (see General Note following Rule 15).

RULE 17.-FILING OF TIlE RECORD

(a) Agency to File; Time for Filing; Notice of Filing.The agency shall file the record with the clerk of

the court of appeals within 40 days after service uponit of the petition for review unless a different time isprovided by the statute authorizing review. In en-forcement proceedings the agency shall file the rec-ord within 40 days after filing an application forenforcement, but the record need not be filed unlessthe respondent has filed an answer contesting en-forcement of the order, or unless the court other-wise orders. The court may shorten or extend thetime above prescribed. The clerk shall give noticeto all parties of the date on which the record Isfiled.

(b) Filing-What Constitutes.

The agency may file the entire record or such partsthereof as the parties may designate by stipulationfiled with the agency. The original papers In theagency proceeding or certified copies thereof may befiled. Instead of filing the record or designatedparts thereof, the agency may file a certified list ofall documents, transcripts of testimony, exhibits andother material comprising the record, or a list ofsuch parts thereof as the parties may designate,adequately describing each, and the filing of thecertified list shall constitute filing of the record. Theparties may stipulate that neither the record nora certified list be filed with the court. The stipulationshall be filed with the clerk of tht court of appealsand the date of its filing shall be deemed the dateon which the record is filed. If a certified list is filed,or if the parties designate only parts of the record forfiling or stipulate that neither the record nor acertified list be filed, the agency shall retain therecord or parts thereof. Upon request of the court

Rule 16 Page 2254

TITLE 28, APPENDI.-RULES OF APPELLATE PROCEDURE

or the request of a party, the record or any partthereof thus retained shall be transmitted to thecourt nothwithstanding any prior stipulation. Allparts of the record retained by the agency shall be apart of the record on review for all purposes.

NOES OF ADvisoay COMMIrEE ON APPELLATE RULESSubdivision (a). This subdivision is based upon sec-

tion 7 of the uniform rule (see General Note followingRule 15). That rule does not prescribe a time for filingthe record in enforcement cases. Forty days are allowedin order to avoid useless preparation of the recor orcertified list in cases where the appliaton for enforce-ment is not contested.

Sl1bdfvisiol (b). This subdivision is based upon 28U.S.C. § 2112 and section 7 of the uniform rule. It per-mits the agency to file either the record itself or a certifiedlist of its contents. It also permits the parties to stipulateagainst transmission of designated parts of the recordwithout the fear that an inadvertent stipulation may'diminish" the record. Finally, the parties may, in caseswhere consultation of the record is unnecessary, stipulatethat neither the record nor a certified list of its contentsbe filed.

RULE 18.-STAY PENDING REVIEW

Application for a stay of a decision or order of anagency pending direct review in the court of ap-peals shall ordinarily be made in the first instanceto the agency. A motion for such relief may be madeto the court of appeals or to a judge thereof, but themotion shall show that application to the agency forthe relief sought is not practicable, or that applica-tion has been made to the agency and denied, withthe reasons given by it for denial, or that the actionof the agency did not afford the relief which theap)plicant had requested. The motion shall also showthe reasons for the relief requested and the factsrelied upon, and if the facts are subject to disputethe motion shall be supported by affidavits or othersworn statements or copies thereof. With the motionshall be filed such parts of the record as are relevantto the relief sought. Reasonable notice of the motionshall be given to all parties to the proceeding I thecourt of appeals. The court may condition reliefunder this rule upon the filing of a bond or otherappropriate security. The motion shall be filedwith the clerk and normally will be considered by a

panel or division of the court, but in exceptionalcases which such procedure would be impracticabledue to the requirements of time, the applicationmay be made to and considered by a single judgeof the court.


While this rule has no counterpart in present rulesregulating review of agency proceedings, it merely as-similates the procedure for obtaining stays in agencyproceedings with that for obtaining stays In appeals fromthe district courts. The same considerations which justifythe requirement of an initial application to the districtcourt fer a stay pending appeal support the requirementof an initial application to the agency pending review.See Note accompanying Rule 8. Title 5, U.S.C. § 705 (5U.S.C.A. § 705 (1066 Pamphlet) ) confers general authorityon both agencies and reviewing courts to stay agencyaction pending review. Many of the statutes authorizingreview of agency action by the courts of appeals deal withthe question of stays, and at least one, the Act of June15, 1936, 49 Stat. 1499 (7 U.S.C. § 10a), prohibits a staypending review. The proposed rule in nowise affects suchstatutory provisions respecting stays. By its terms, it sim-ply indicates the procedure to be followed when a stayis sought.

RULE 19.-SETTLEMENT OF JUDGMENTS ENFORCING

ORDERS

When an opinion of the court is filed directing theentry of a Judgment enforcing in whole or in partthe order of an agency, the agency shall within 14days thereafter serve upon the respondent and filewith the clerk a proposed judgment in conformitywith the opinion. If the respondent objects to theproposed judgment as not in conformity with theopinion, he shall within 7 days thereafter serve uponthe agency and fi., with the clerk a proposed judg-ment which he deems to be in conformity with theopinion. The court will thereupon settle the judg-ment and direct its entry without further hearingor argument.


This is section 12 of the uniform rule (see GeneralNote following Rule 15) with changes in phraseology.

RULE 20.-APPLICABILITY OF OTIIER RULES TO REVIEW

OR ENFORCEMENT OF AGENCY ORDERS

All provisions of these rules are applicable to re-view or enforcement of orders of agencies, exceptthat Rules 3-14 and Rules 22 and 23 are not ap-plicable. As used in any applicable rule, the term"appellant" includes a petitioner and the term "ap-pellee" includes a respondent in proceedings toreview or enforce agency orders.

NOTES OF ADVISORY COMMITTEE ON APPELLATE RI:Lrs

The proposed rule continues the present uniform prac-tice of the circuits of regulating agency review or enforce-ment proceedings by the general rules applicable toappeals from judgments of the district courts

TITLE V.-EXTRAORDINARY WRITS

RULE 21.-WRITS OF MANDAMUS AND PROHIBITION

DIRECTED TO A JUDGE OR JUDGES AND OTHER EXTRAOR-

DINARY WRITS

(a) Mandamus or Prohibition to a Judge or Judges;Petition for Writ; Service and Filing.

Application for a writ of mandamus or of prohibi-tion directed to a judge or judges shall be made byfiling a petition therefor with the clerk of the courtof appeals with proof of service on the respondentjudge or judges and on all parties to the action in thetrial court. The petition shall contain a statement ofthe facts necessary to an understanding of the issuespresented by the application; a statement of theissues presented and of the relief sought; a statementof the reasons why the writ should issue; and copiesof any order or opinion or parts of the record whichmay be essential to an understanding of the mattersset forth in the petition. Upon receipt of the pre-scribed docket fee, the clerk shall docket the petitionand submit it to the court.

(b) Denial; Order Directing Answer.If the court is of the opinion that the writ should

not be granted, it shall deny the petition. Otherwise,it shall order that an answer to the petition be filedby the respondents within the time fixed by the order.The order shall be served by the clerk on the judge orjudges named respondents and on all other partiesto the action in the trial court. All parties belowother than the petitioner shall also be deemedrespondents for all purposes. Two or more respond-ents may answer jointly. If the judge or judges

Page 2255 Rule 21

TITLE 28, APPENDIX-RULES OF APPELLATE PROCEDURE

named respondents do not desire to appear in theproceeding, they may so advise the clerk and allparties by letter, but the petition shall not therebybe taken as admitted. The clerk shall advise theparties of the dates on which briefs are to be filed, ifbriefs are required, and of the date of oral argu-ment. The proceeding shall be given preference overordinary civil cases.

(c) Other Extraordinary Writs.Application for extraordinary writs other than

those provided for in subdivisions (a) and (b) of thisrule shall be made by petition filed with the clerkof the court of appeals with proof of service on theparties named as respondents. Proceedings on suchapplication shall conform, so far as is practicable,to the procedure prescribed in subdivisions (a) and(b) of this rule.

(d) Form of Papers; Number of Copies.All papers may be typewritten. Three copies shall

be filed with the original, but the court may directthat additional copies be furnished.


The authority of courts of appeals to issue extraordinarywrits is derived from 28 U.S.C. § 1651. Subdivisions (a) and(b) regulate in detail the procedure surrounding the writsmost commonly sought-anindamus or prohibition di-rected to a judge or judges. Those subdivisions are basedupon Supreme Court Rule 31, with certain changes whichreflect the uniform practice among the circuits (SeventhCircuit Rule 19 is a typical circuit rule). Subdivision (c)sets out a very general procedure to be followed inapplications for the variety of other writs which may beissued under the authority of 28 U.S.C. § 1651.

TITLE VI.-HABEAS CORPUS; PROCEEDINGS IN

FORMA PAUPERIS

RULE 22.-HABEAS CORPUS PROCEEDINGS

(a) Application for the Original Writ.An application for a writ of habeas corpus shall

be made to the appropriate district court. If appli-cation Is made to a circuit judge, the applicationwill ordinarily be transferred to the appropriatedistrict court, If an application is made to or trans-ferred to the district court and denied, renewal ofthe application before a circuit judge is not favored;the proper remedy is by appeal to the court of ap-peals from the order of the district court denyingthe writ.

(b) Necessity of Certificate of Probable Cause forAppeal.

In a habeas corpus proceeding in which the de-tention complained of arises out of process issuedby a state court, an appeal by the applicant for thewrit may not proceed unless a district or a circuitjudge issues a certificate of probable cause. If anappeal is taken by the applicant, the district judgewho rendered the judgment shall either issue a cer-tificate of probable cause or state the reasons whysuch a certificate should not issue. The certificate orthe statement shall be forwarded to the court of ap-peals with the notice of appeal and the file of theproceedings in the district court. If the district judgehas denied the certificate, the applicant for thewrit may then request Issuance of the certificate by

a circuit Judge. If such a request is addressed to the

court of appeals, it shall be deemed addressed to the

judges thereof and shall be considered by a circuitjudge or judges as the court deems appropriate. If

no express request for a certificate is filed, the noticeof appeal shall be deemed to constitute a requestaddressed to the judges of the court of appeals. Ifan appeal is taken by a state or its representative, acertificate of probable cause is not required.

NOTES OF ADVISORY COMMrirEE ON APPELLATE RULES

Subdivision (a). Title 28 U.S.C. § 2241(a) authorizescircuit judges to issue the writ of habeas corpus. Section2241 (b), however, authorizes a circuit judge to decline toentertain an application and to transfer it to the ap-propriate district court, and this is the usual practice.The first two sentences merely make present practiceexplicit. Title 28 U.S.C. § 2253 seems clearly to contem-plate that once an application is presented to a districtjudge and is denied by him, the remedy is an appeal fromthe order of denial. But the language of 28 U.S.C. ( 2241seems to authorize a second original application to acircuit judge following a denial by a district judge. In reGersing, 79 U.S. App. D.C. 245, 145 F. 2d 481 (D.C. Cir.,1944) and Chapman v. Teets, 241 F. 2(. 180 (9th Cir.,1957) acknowledge the availability of such a procedure.But the procedure is ordinarily a waste of time for allinvolved, and the final sentence attempts to discourageit.

A court of appeals has no jurisdiction as a court togrant an original writ of habeas corpus, and courts ofappeals have dismissed applications addressed to them.Loum v. Alvis, 263 F. 2d 836 (0th Cir., 1959); In re Berry,221 F. 2d 798 (9th Cir., 1955); Posey v. Dowd, 134 F. 2d613 (7th Cir., 1943). The fairer and more expeditiouspractice is for the court of appeals to regard an applica-tion addressed to it as being addressed to one of its mem-bers, and to transfer the application to the appropriatedistrict court in accordance with the provisions of thisrule. Perhaps such a disposition is required by the ra-tionale of In re Burwell, 350 U.S. 521, 76 S. Ct. 539, 100L. Ed. 666 (1956).

Subdivision (b). Title 28 U.S.C. § 2253 provides that anappeal may not be taken in a habeas corpus proceedingwhere confinement is under a judgment of a state courtunless the judge who rendered the order in the habeascorpus proceeding, or a circuit justice or judge, issues acertificate of probable cause. In the interest of insuringthat the matter of the certificate will not be overlookedand that, if the certificate is denied, the reasons for de-nial in the first instance will be available on any sub-sequent application, the proposed rule requires the dis-trict judge to issue the certificate or to state reasons forits denial.

While 28 U.S.C. ( 2253 does not authorize the court ofappeals as a court to grant a certificate of probablecause, In re Burwell, 350 U.S. 521, 76 S. Ct. 539, 100 L.Ed. 666 (1956) makes it clear that a court of appeals maynot decline to consider a request for the certificate ad-dressed to it as a court but must regard the request asmade to the judges thereof. The fourth sentence incor-porates the Burwell rule.

Although 28 U.S.C. § 2253 appears to require a certifi-cate of probable cause even when an appeal is taken by astate or its representative, the legislative history stronglysuggests that the intention of Congress was to require acertificate only In the case in which an appeal Is taken byan applicant for the writ. See United States ex rel. Tilleryv. Cavell, 294 F. 2d 12 (3d Cir., 1960). Four of the fivecircuits which have ruled on the point have so interpretedsection 2253. United States ex rel. Tillery v. Cavell, supra;Buder v. Bell, 306 F. 2d 71 (6th Cir., 1962); United Statesex rel. Calhoun v. Pate, 341 F. 2d 885 (7th Cir., 1965);State of Texas v. Graves, 352 F. 2d 514 (5th Cir., 1965).Cf. United States ex rel. Carrol v. LaVallee, 342 F. 2d641 (2d Cir., 1965). The final sentence makes it clear thata certificate of probable cause is not required of a stateor its representative.

Rule 22 Page 2256


RULE 23.-CUSTODY OF PRISONERS IN HABEAS CORPUS

PROCEEDINGS

(a) Transfer of Custody Pending Review.Pending review of a decision in a habeas corpus

proceeding commenced before a court, justice orjudge of the United States for the release of a pris-

oner, a person having custody of the prisoner shallnot transfer custody to another unless such transferis directed in accordance with the provisions of this

rule. Upon application of a custodian showing aneed therefor, the court, justice or Judge renderingthe decision may make an order authorizing trans-

fer and providing for the substitution of the suc-

cessor custodian as a party.

(b) )eiention or Release of Prisoner Pending Reviewof l)ecision Failing to Release.

Pending review of a decision failing or refusing

to release a prisoner in which a proceeding, the pis -

oner may be detained in the custody from which re-

lease is sought, or in other appropriate custody,

or may be enlarged upon his recognizance, with or

without surety, as may appear fitting to the court orjustice or judge rendering the decision, or to the

court of appeals or to the Supreme Court, or to

a judge or justice of either court.

c) Release of Prisoner 'ending Review of DecisionOrdering Release.

Pending review of a decision oidering the release

of a prisoner in such a proceeding, the prisoner shallbe enlarged upon his recognizance, with or withoutsurety, unless the court or justice or judge ren-

dering the decision, or the court of appeals orthe Supreme Court, or a judge or justice of eithercourt shall otherwise order.

(d) Modification of Initial Order Hespecting Custody.An initial order respecting the custody or en-

largement of the prisoner and any recognizance or

surety taken, shall govern review in the court of ap-

peals and in the Supreme Court unless for specialreasons shown to the court of appeals or to the Su-

preme Court, or to a judge or justice of either court,

the order shall be modified, or an independent orderrespecting custody, enlargement or surety shall bemade.

NOTES OF ADVISORY COMMITTEE ON Ai'PELLATE RULES

The rule is the same as Supreme Court Rule 49, asamended on June 12, 1967, effective October 2, 1967.

RULE 24.-PaOCEEDINGS IN FORMA PAUPERIS

(a) Leave to Proceed on Appeal in Forma Pauperisfrom District Court to Court of Appeals.

A party to an action in a district court who desires

to proceed on appeal in forma pauperis shall file in

the district court a motion for leave so to proceed,

together with an affidavit, showing, in the detail pre-scribed by Form 4 of the Appendix of Forms, hisinability to pay fees and costs or to give securitytherefor, his belief that he is entitled to redress, and

a statement of the issues which he intends to presenton appeal. If the motion is granted, the party may

proceed without further application to the court ofappeals and without prepayment of fees or costs in

either court or the giving of security therefor. If the

motion is denied, the district court shall state inwriting the reasons for the denial.

Notwithstanding the provisions of the precedingparagraph, a party who has been permitted to pro-ceed in an action in the district court in forma pau-pers, or who has been permitted to proceed there asone who is financially unable to obtain an adequatedefense in a criminal case, may proceed on appeal in

forma pauperis without further authorization un-less, before or after the notice of appeal is filed, thedistrict court shall certify that the appeal is nottaken in good faith or shall find that the party is

otherwise not entitled so to procced, in which eventthe district court shall state in writing the reasonsfor such certification or finding.

If a motion for leave to proceed on appeal in forma

pauperis is denied by the district court, or if the dis-trict court shall certify that the appeal is not takenin good faith or shall find that the party is otherwisenot entitled to proceed in forma pauperis, the clerkshall forthwith serve notice of such action. A motion

for leave so to proceed may be filed in the court ofappeals within 30 days after service of notice of theaction of the district court. The motion shall be ac-

companied by a copy of the affidavit filed in thedistrict court, or by the affidavit prescilibed by the

first paragraph of this subdivision if no affidavithas been filed in the district court, and by a copy

of the statement of reasons given by the districtcourt for its action.

(b) Leave to Proceed on Appeal or Rteview in FormaPauiperis in Administrative Agency Proceedings.

A party to a proceeding before an administrative

agency, board, commission or officer (including,

for the purpose of this rule, the Tax Court of the

United States) who desires to proceed on appeal or

review in a court of appeals in forma pauperis,

when such appeal or review may be had directly

in a court of appeals, shall file in the court of appeals

a motion for leave so to proceed together with the

affidavit prescribed by the first paragraph of sub-

division (a) of this rule.

(c) Form of Briefs, Appendices and Other Papers.

Parties allowed to proceed in forma pauperis may

file briefs, appendices and other papers in type-

written form, and may request that the appeal be

heard on the original record without the neces-

sity of reproducing parts thereof in any form.

NOTES OF ADVISORY COMMIrTEE ON APPELLATE RULES

Subdivision (a). Authority to allow prosecution of anappeal in forma pauperis is vested in "Ialny court of theUnited States" by 28 U.S.C. § 1915(a). The second para-graph of section 1915(a) seems to contemplate initialapplication to the district court for permission to pro-ceed in forms pauperls, and although the circuit rulesare generally silent on the question, the case law requiresinitial application to the district court. Ilayes v. UnitedStates, 258 F. 21 400 (5th Cir., 1958), cert. den. 358 U.S.856, 79 S. Ct. 87, 3 L. Ed. 2d 89 (1958); Elkins v. UnitedStates, 250 F. 2d 145 (9th Cir., 1957) see 364 U.S. 206, 80S. Ct. 1437, 4 L. Ed. 2d 1669 (1960) ; United States v. Farley,238 F. 2d 575 (2d Cir., 1956) see 354 U.S. 521, 77 S. Ct.1371, 1 L. Ed. 2d 1529 (1957). D.C. Cir. Rule 41(a) re-quires Initial application to the district court. The con-tent of the affidavit follows the language of the statute;the requirement of a statement of tile issues comprehendsthe statutory requirement of a statement of "tie natureof the . . . appeal .. . The second sentence is in ac-cord with the decision in McGann v. United States, 362

Rule 24Page 2257

u TITLE 28, APPENDIX.-RULES OF APPELLATE PROCEDURE

U.S. 309, 80 S. Ct. 725, 4 L. Ed. 2d 734 (1960). The re-quirement contained In the third sentence has no counter-part in present circuit rules, but it has been imposed bydecision in at least two circuits. Ragan v. Cox, 305 F. 2d58 (10th Cir., 1962): United States ex rel. Breedlove v.Dowd, 269 F. 2d 693 (7th Cir., 1959).

The second paragraph permits one whose indigency hasbeen previously determined by the district court to proceedon appeal it forma pauperis without the necessity of aredetermination of indigency, while reserving to the dis-trict court its statutory authority to certify that the ap-peal is not taken in good faith, 28 U.S.C. § 1915(a). andpermitting an inquiry into whether the circumstancesof the party who wi.s originaly entitled to proceed informa pauperis have changed during the course of thelitigation. Cf. Sixth Circuit Rule 26.

The final paragraph establishes a subsequent motionin the court of appeals, rather than an appeal from tileorder of denial or from the certification of lack of goodfaith, as the proper procedure for calling in question thecorrectness of the action of the district court. The simpleand expeditious motion procedure seems clearly prefer-able to all appeal. This paragraph applies only to ap-plications for leave to appeal in forma pauperis. Tileorder of a district court refusing leave to initiate an actionin the district court in fornia pauperls is reviewable oilappeal. See Roberts v. United States District Court, 339U.S. 844, 70 S. Ct. 954. 94 L. Ed. 1326 (1950).

Subdirision (b). Authority to allow prosecution informa iaiperis is vested only in a "court of the UnitedStates" (see Note to subdivision (a), above). Thus inproceedings brought directly in a court of appeals to re-view decisions of agencies or of the Tax Court, authorityto proceed in forma pauperis should be sought in thecourt of appeals. If initial review of agency action ishad in a district court, an application to appeal to a courtof appeals in forma pauperls from the Judgment of thedistrict court is governed by the provisions of sub-division (a).

TITLE VII.-GENERAL PROVISIONS

RULE 25.-FILING AND SERVICE

(a) Filing.Papers required or permitted to be filed in a court

of appeals shall be filed with the clerk. Filing maybe accomplished by mail adressed to the clerk, butfiling shall not be timely unless the papers are re-ceived by the clerk within the time fixed for filing,except that briefs and appendices shall be deemedfiled on the day of mailing if the most expeditiousform of delivery by mail, excepting special delivery,is utilized. If a motion requests relief which may begranted by a single judge, the judge may permitthe motion to be filed with him, in which event heshall note thereon the date of filing and shall there-after transmit it to the clerk.

(b) Service of all Papers IRequired.Copies of all papers filed by any party and not re-

quired by these rules to be served by the clerk shall,at or before the time of filing, be served by a partyor person acting for him on all other parties to theappeal or review. Service on a party represented bycounsel shall be made on counsel.

(c) Manner of Service.Service may be personal or by mail. Personal serv-

ice includes delivery of the copy to a clerk or otherresponsible person at the office of counsel. Serviceby mail Is complete on mailing.

(d) Proof of Service.Papers presented for filing shall contain an ac-

knowledgment of service by the person served orproof of service in the form of a statement of the

date and manner of service and of the names of theperson served, certified by the person who madeservice. Proof of service may appear on or be affixedto the papers filed. The clerk may permit papers tobe filed without acknowledgement or proof of serv-ice but shall require such to be filed promptly there-after.

NOTES OF ADVISORY ComirrTEE ON APPELLATE RULES

Tile rule that filing Is not timely unless the papersfiled are received within the time allowed is the familiarone. Ward v. Atlantic Coast Line R.R. Co., 265 F. 2d 75(5th Cir., 1959), rev'd ol other grounds 362 U.S. 396, 80S. Ct. 789, 4 L. Ed. 2d 820 (1960); Kahler-Ellis Co. v. OhioTurnpike Commission, 225 F. 2d 922 (6th Mr., 1055). Anexception is made in the case of briefs and appendicesin order to aiord the parties the maximum time fortheir preparation. By the terms of the exception, airmail delivery must be used whenever it Is the most ex-peditious manner of delivery.

A majority of tile circuits now require service of allpapers filed with the clerk. The usual provision in pres-ext rules is for service on "adverse" parties. In view ofthe extreme simplicity of service by mail, there seems tobe no reason why a party who files a paper should not berequired to serve all parties to the proceeding in the courtof appeals, whether or not they may be deemed adverse.The common requirement of proof of service is retained,but tile rule permits it to be made by simple certification,which may be endorsed ol tile copy which is filed.

RULE 26.-COMPUTATION AND EXTENSION OF TIME

(a) Computation of Time.In computing any period of time prescribed by

these rules, by an order of court, or by any applica-ble statute, the day of the act, event, or default fromwhich the designated period of time begins to runshall not be included. The last day of the periodshall be included, unless it is a Saturday, Sunday ora legal holiday, in which event the period extendsuntil the end of the next day which is not a Satur-day, Sunday or a lt.al holiday. When the period oftime prescribed or al.)wed is less than 7 days, inter-mediate Saturdays, Su 'days and legal holidays shallbe excluded in the computation. As used In this rule"legal holiday" includes New Year's Day, Washing-ton's Birthday, Memorial Day, Independence Day,Labor Day, Veterans Day, Thanksgiving Day, Christ-mas Day, and any other day appointed as a holidayby the President or the Congress of the UnitedStates. It shall also include a day appointed as aholiday by the state wherein the district court whichrendered the judgment or order which Is or may beappealed from is situated, or by the state whereinthe principal office of the clerk of the court of appealsin which the appeal is pending is located.

(b) Enlargement of Time.The court for good cause shown may upon motion

enlarge the time prescribed by these rules oi" by itsorder for doing any act, or may permit an act to bedone after the expiration of such time; but the courtmay not enlarge the time for filing a notice of appeal,a petition for allowance, or a petition for permissionto appeal. Nor may the court enlarge the time pre-scribed by law for filing a petition, to enjoin, setaside, suspend, modify, enforce or otherwise review,

or a notice of appeal from, an order of an adminis-

trative agency, board, commission or officer of the

United States, except as specifically authorized bylaw.

Rule 25 Page 2258


(c) Additional Time after Service by Mail.Whenever a party is required or permitted to do an

act within a prescribed period after service of a

paper upon him and the paper is served by mail, 3days shall be added to the prescribed period.

NOTES OF ADVISORY COMMrILE ON APPELLATE RULES

The provisions of this rule are based upon FRCP 0 (a),(b) and (e). See also Supreme Court Rule 34 and FRCrP45. Unlike FRCP 6(b), this rule, read with Rule 27, re-quires that every request for enlargement of time be niadeby motion, with proof of service on all parties. This isthe simplest, most convenient way of keeping all parties

advised of developments. By the terms of Rule 27(0) amotion for enlargement of time tinder Rule 26(b) may beentertained and acted upon immediately, subject to theright of any party to seek reconsideration. Thus the re-quirement of motion and notice will not delay the grant-ing of relief of a kind which a court is Inclined to grant asof course. Specifically, if a court is of the view that anextension of time sought before expiration of the periodoriginally prescribed or as extended by a previous orderought to be granted in effect ex parte, as FRCP 6(b) per-mits, it may grant motions seeking such relief withoutdelay.

RULE 27.-MOTIONS

(a) Content of Motions; Response; Reply.Unless another form is elsewhere prescribed by

these rules, an application for an order or other re-lief shall be made by filing a motion for such order orrelief with proof of service on all other parties. Themotion shall contain or be accompanied by any mat-

ter required by a specific provision of these rules gov-erning such a motion, shall state with particularitythe grounds on which it is based, and shall set forththe order or relief sought. If a motion is supportedby briefs, affidavits or other papers, they shall beserved and filed with the motion. Any party may filea response in opposition to a motion other than onefor a procedural order [for which see subdivision(b) 1 within 7 days after service of the motion, butmotions authorized by Rules 8, 9, 18 and 41 may be

acted upon after reasonable notice, and the courtmay shorten or extend the time for responding toany motion.

(b) Determination of Motions for Procedural Orders.

Notwithstanding the provisions of the preceding

paragraph as to motions generally, motions for pro-

cedural orders, including any motion under Rule

26(b) may be acted upon at any time, without await-

ing a response thereto. Any party adversely affected

by such action may request reconsideration, vacationor modification of such action.

(c) Power of a Single Judge to Entertain Motions.

In addition to the authority expressly conferred

by these rules or by law, a single judge of a court of

appeals may entertain and may grant or deny any

request for relief which under these rules may prop-

erly be ,ougth by motion, except that a single judge

may not dismiss or otherwise determine an appeal

or other procc !ding, and except that a court of ap-

peals may provide by order or rule that any motion

or class of motions must be acted upon by the court.

The action of a single judge may be reviewed by the

court.

(d) Form of Papers; Number of Copies.

All papers relating to motions may be typewritten.

Three copies shall be filed with the original, but the

court may require that additional copies be fur-nished.

NOTES OF ADVISORY COMMIrrTEE ON APPELLATE RULES

Subdivisions (a) and (b). Many motions seek relief ofa sort which is ordinarily unopposed or which is grantedas of course. The provision of subdivision (a) which per-mits any party to file a response in opposition to a motionwithin 7 days after its service upon him assumes that themotion is one of substance which ought not be acted uponwithout affording affected parties an opportunity to reply.A motion to dismiss or otherwise determine an appeal isclearly such a motion. Motions authorized by Rules 8, 9, 18and 41 are likewise motions of substance; but in thenature of the relief sought, to afiord an adversary anautomatic delay of at least 7 da)s is undesirable, thussuch motions may be acted upon after notice which isreasonable tinder the circumstances.

The term "motions for procedural orders" is used insubdivision (b) to describe motions which do not sub-stantially affect the rights of the parties or the ultimatedisposition of the appeal. To prevent delay in the disposi-tion of such motions, subdivision (b) provides that theym,,y be acted upon immediately without awaiting a re-sponse, subject to the right of any party who Is adverselyaffected by the action to seek reconsideration.

Subdivision (c). Within the general consideration ofprocedure on motions is the problem of the power of asingle circuit judge. Certain powers are granted to a singlejudge of a court of appeals by statute. Thus, under 28U.S.C. § 2101(f) it single judge may stay execution andenforcement of a judgment to enable it party aggrieved toobtain certiorari: under 28 U.S.C. § 2251 a judge beforewhom it habeas corpus proceeding involving a persondetained by state authority is pending may stay any pro-ceeding against the person; under 28 U.S.C. § 2253 a singlejudge may issue a certificate of probable cause. In addi-tion, certain of these rules expresily grant powe: to asingle judge. See Rules 8, 9 and 18.

This subdivision empowers a single circuit judge to actupon virtually all requests for intermediate relief whichmay be made during the course of an appeal or other pro-ceeding. By its terms lhe may entertain and act upon anymotion other than a motion to dismiss or otherwise deter-mine an appeal or other proceeding. But the relief soughtmust be "relief which under these rules may properly besought by motion."

Examples of the power conferred on a single judge bythis subdivision are: to extend the time for transmittingthe record or docketing the appeal (Rules 11 and 12); topermit intervention in agency cases (Rule 15), or substi-tution in any case (Rule 43); to permit all appeal In formapauperis (Rule 24); to enlarge any time period fixed bythe rules other than that for initiating a proceeding Inthe court of appeals (Rule 26(b) ) ; to permit the filing of abrief by amicus curiae (Rule 29); to authorize the filingof a deferred appendix (Rule 30(c), or dispense with therequirement of an appendix in a specific case (Rule 30(f),or permit carbon copies of briefs or appendices to be used(Rule 32(a)); to permit the filing of additional briefs(Rule 28(c)), or the filing of briefs of extraordinarylength (Rule 28 (g) ); to postpone oral argument (Rule

34(a) ), or grant additional time therefor (Rule 34(b) ).Certain rules require that application for the relief or

orders which tuLey authorize be made by petition. Since

relief under those rules may not properly be sought bymotion, it single judge may not entertain requests for suchrelief. Thus a single judge may not act upon requests forpermission to appeal (see Rules 5 and 6); or for man-

damus or other extraordinary writs (see Rule 21), other

than for stays or injunctions pcndente lite, authority togrant which is "expressly conferred by these rules" on asingle judge under certain circumstances (see Rulea 8 and

18); or upon petitions for rehearing (see Rule 40).A court of appeals may by order or rule abridge the

power of a single judge if it is of the view that a motion or

a class of motions should be disposed of by a panel. Exer-cise of any power granted a single judge is discretionarywith the judge. The final sentence in this subdivisionmakes the disposition of any matter by a single judge

subject to review by the court.

Rule 27Page 2259

TITLE 28, APPENDIX-RULES OF APPELLATE PROCEDURE

RULE 28.-BRIEFS

(a) Brief of the Appellant.The brief of the appellant shall contain under

appropriate headings and in the order here indi-cated:

(1) A table of contents, with page references, anda table of cases (alphabetically arranged), statutesand other authorities cited, with references to thepages of the brief where they are cited.

(2) A statement of the issues presented for review.(3) A statement of the case. The statement shall

first indicate briefly the nature of the case, thecourse of proceedings, and its disposition in the courtbelow. There shall follow a statement of the factsrelevant to the issues presented for review, withappropriate references to the record (see subdivision(e)).

(4) An argument. The argument may be precededby a summary. The argument shall contain the con-tentions of the appellant with respect to the issuespresented, and the reasons therefor, with citationsto the authorities, statutes and parts of the recordrelied on.

(5) A short conclusion stating the precise reliefsought.

(b) Brief of the Appellee.The brief of the appellee shall conform to the re-

quirements of subdivision (a) (1)-(4), except thata statement of the issues or of the case need not bemade unless the appellee is dissatisfied with thestatement of the appellant.

(c) Reply Brief.The appellant may file a brief in reply to the brief

of the appellee, and if the appellee has cross-ap-pealed, the appellee may file a brief in reply to theresponse of the appellant to the issues presented bythe cross appeal. No further briefs may be filed ex-cept with leave of court.

(d) References in Briefs to Parties.Counsel will be expected in their briefs and oral

arguments to keep to a minmum references to partiesby such designations as "appellant" and "appellee".it promotes clarity to use the designations used inthe lower court or in the agency proceedings, or theactual names of parties, or descriptive terms such as"the employee," "the injured person," "the taxpayer,""the ship," "the stevedore," etc.

(e) References in Briefs to the Record.References in the briefs to parts of the record

reproduced in the appendix filed with the brief of theappellant (see Rule 30(a)) shall be to the pages ofthe appendix at which those parts appear. If the ap-pendix is prepared after the briefs are filed, refer-ences in the briefs to the record shall be made by oneof the methods allowed by Rule 30(c). If the recordis reproduced in accordance with the provisions ofRule 30(f), or if references are made in the briefs toparts of the record not reproduced, the referencesshall be to the pages of the parts of the record in-volved, e.g., Answer p. 7, Motion for Judgment p. 2,Transcript p. 231. Intelligible abbreviations may beused. If reference is made to evidence the admissibil-ity of which is in controversy, reference shall be

made to the pages of the appendix or of the trans-script at which the evidence was identified, offered,and received or rejected.

(f) Reproduction of Statutes, Rules, Regulations,Etc.

If determination of the issues presented requiresthe study of statutes, rules, regulations, etc. or rele-vant parts thereof, they shall be reproduced in thebrief or in an addendum at the end, or they may besupplied to the court in pamphlet form.

(g) Length of Briefs.Except by permission of the court, principal briefs

shall not exceed 50 pages of standard typographicprinting or 70 pages of printing by any other processof duplicating or copying, exclusive of pages contain-ing the table of contents, tables of citations and anyaddendum containing statutes, rules, regulations,etc. And except by permission of the court, replybriefs shall not exceed 25 pages of standard typo-graphic printing or 35 pages of printing by any otherprocess of duplicating or copying.

(h) Briefs in cases involving cross appealsIf a cross appeal is filed, the plaintiff in the court

below shall be deemed the appellant for the purposesof this rule and Rules 30 and 31, unless the partiesotherwise agree or the court otherwise orders. Thebrief of the appellee shall contain the issues and ar-gument Involved in his appeal as well as the answerto the brief of the appellant.

(i) Briefs in cases involving multiple appellants orappellees

In cases involving more than one appellant orappellee, including cases consolidated for purposesof the appeal, any number of either may join in asingle brief, ard any appeliant or appellee mayadopt by reference any part of the brief of another.Parties may similarly join in reply briefs.

NOTES OF ADVISORY COMMITTEE ON APPELLATE RULESThis rule is based upon Supreme Court Rule 40. For

variations in present circuit rules on briefs see 2d Cir.Rule 17, 3d Cir. Rule 24, 5th Cir. Rule 24, and 7th Cir.Rule 17. All circuits now limit the number of pagesof briefs, a majority limiting the brief to 50 pages ofstandard typographic printing. Fifty pages of standardtypographic printing is the approximate equivalent of70 pages of typewritten text, given the page sizes requiredby Rule 32 and the requirement set out there that textproduced by a method other than standard typographicmust be double spaced.

RULE 29.-BRIEF OF AN AMIcuS CURIAE

A brief of an amicus curiae may be filed only ifaccompanied by written consent of all parties, or byleave of court granted on motion or at the requestof the court, except that consent or leave shall notbe required when the brief is presented by the UnitedStates or an officer or agency thereof, or by a State,Territory or Commonwealth. The brief may be con-ditionally filed with the motion for leave. A motionfor leave shall identify the interest of the applicantand shall state the reasons why a brief of an amicuscuriae is desirable. Save as all parties otherwise con-sent, any amicus curiae shall file its brief within thetime allowed the party whose position as to affirm-ance or reversal the amicus brief will support unlessthe court for cause shown shall grant leave for later

Rule 28 Page 2260


filing, In which event it shall specify within whatperiod an opposing party may answer. A motion ofan amicus curiae to participate in the oral argu-ment will be granted only for extraordinary reasons.


Only five circuits presently regulate the filing of thebrief of an amlcus curiae. See D.C.Cir. Rule 18(j); 1st Mr.Rule 23(10); Gth Cir. Rule 17(4); 9th Cir. Rule 18(0); 10thCir. Rule 20. This rule follows the practice of a majorityof circuits in requiring leave of court to file an amicusbrief except under the circumstances stated therein. Com-pare Supreme Court Rule 42.

RULE 30.-APPENDIX TO TIlE BRIEFS

(a) l)uty of Appellant to Prepare and File; Contentof Appendix; Time for Filing; Number of Copies.

The appellant shall prepare and file an appendixto the briefs which shall contain: (1) the relevantdocket entries in the proceeding below; (2) anyrelevant portions of the pleadings, charge, findingsor opinion; (3) the judgment, order or decision inquestion; and (4) any other parts of the record towhich the Parties wish to direct the particular atten-tion of the court. The fact that parts of the recordare not included in the appendix shall not preventthe parties or the court from relying on such parts.

Unless filing is to be deferred pursuant to the pro-visions of subdivision (c) of this rule, the appellantshall serve and file the appendix within 40 days ofthe date on which the record is filed. Ten copies ofthe appendix shall be filed with the clerk, and onecopy shall be served on counsel for each party sepa-rately represented, unless the court shall by ruleor order direct the filing or service of a lesser number.

(b) Determination of Contents of Appendix; Cost ofProducing.

The parties are encouraged to agree as to the con-tents of the appendix. In the absence of agreement,the appellant shall, not later than 10 days after thedate on which the record is filed, serve on the ap-pellee a designation of the parts of the record whichhe intends to include in the appendix and a state-ment of the issues which lie intends to present forreview. If the appellee deems it necessary to directthe particular attention of the court to parts of therecord not designated by the appellant, lie shall,within ten days after receipt of the designation, serveupon the appellant a designation of those parts. Theappellant shall include in the appendix the partsthus designated. In designating parts of the recordfor inclusion in the appendix, the parties shall haveregard for the fact that the entire record is alwaysavailable to the court for reference and examina-tion and shall not engage in unnecessary designa-tion.

Unless the parties otherwise agree, the cost of pro-ducing the appendix shall initially be paid by theappellant, but if the appellant considers that partsof the record designated by the appellee for inclusionare unnecessary for the determination of the issuespresented lie may so advise the appellee and the ap-pellee shall advance the cost of including such parts.The cost of producing the appendix shall be taxed ascosts in the case, but if either party shall causematters to be included in the appendix unnecessarilythe court may Impose the cost of producing suchparts on the party.

33-3S1 0-70-vol. 2 -- W

(c) Alternative Method of Designating Contents ofthe Appendix; How References to the Record mayhe Made in the Briefs When Alternative Methodis Used.

If the appellant shall so elect, or if the court shallso provide by rule for classes of cases or by orderin specific cases, preparation of the appendix may bedeferred until after the briefs have been filed, andthe appendix nmy be filed 21 days after service of thebrief of the appellee. Notice of the election by theappellant to defer preparation of the appendix shallbe filed and served by him within 10 days afterthe date on which the record is filed. If the prepara-tion and filing of the appendix is thus deferred, theprovisions of subdivision (b) of this Rule 30 shallapply, except that the designations referred totherein shall be made by each party at the time hisbrief is served, and a statement of the issuespresented shall be unnecessary.

If the deferred appendix authorized by this sub-division is employed, references in the briefs to therecord may be to the pages of the parts of the recordinvolved, in which event the original paging of eachpart of the record shall be indicated in the appendixby placing in brackets the number of each page atthe place in the appendix where that page begins.Or if a party desires to refer in his brief directlyto pages of the appendix, he may serve and file type-written or page proof copies of his brief within thetime required by Rule 31(a), with appropriate ref-erences to the pages of the parts of the record in-volved. In that event, within 14 days after the ap-pendix is filed lie shall serve and file copies of thebrief in the form prescribed by Rule 32(a) contain-ing references to the pages of the appendix in Placeof or in addition to the initial references to the pagesof the parts of the record involved. No other changesmay bc made in the brief as initially served and filed,except that typographical errors may be corrected.

(d) Arrangement of the Appendix.

At the beginning of the appendix there shall beinserted a list of the parts of the record which itcontains, in the order in which the parts are set outtherein, with references to the pages of the appendixat which each part begins. The relevant docket en-tries shall be set out following the list of contents.Thereafter, other parts of the record shall be setout in chronological order. When matter containedIn the reporter's transcript of proceedings is set outin the appendix, the page of the transcript at whichsuch matter may be found shall be indicated inbrackets immediately before the matter which is setout. Omissions in the text of papers or of the tran-script nust be indicated by asterisks. Immaterialformal matters (captions, subscriptions, acknowl-edgments, etc.) shall be omitted. A question and itsanswer may be contained in a single paragraph.

(e) Ieproduction of Exhibits.Exhibits designated for inclusion in the appendix

may be contained in a separate volume, or volumes,suitably indexed. Four copies thereof shall be filedwith the appendix and one copy shall be served oncounsel for each party separately represented. Thetranscript of a proceeding before an administrativeagency, board, commission or officer used in an action

Page 2261 Rule 30


in the district court shall be regarded as an exhibitfor the purpose of this subdivision.

Cr) Hearing of kppeals on the Original lecord With-out the Necessity of an Appendix.

A court of appeals may by rule applicable to allcases, o," to classes of cases, or by order in specificcases, dispense with the requirement of all appendixand permit appeals to be heard on the original rec-ord, with such copies of the record, or relevant parts

thereof, as the court may require.

NOTES OF ADVISORY COiMMITTEE ON APPELLATE RULESSubdivision (a). Ony two circuits presently require a

printed record (5th Cir. Rule 23(a); 8th Cir. Rule 10 (incivil appeals only)), and the rules and practice in thosecircuits combine to make the defference between a pilintedrecord and tile appendix, which Is now used In eight cir-cuits and In the Supreme Court in lieu of the printedrecord, largely nominal. The essential character.stics oftile appendix method are: (1) the entire record may notbe reproduced; (2) instead, the parties are to set outin an appendix to the briefs those parts of the recordwhich In their judgment tile judges must consult in orderto determine the issues presented by the appeal; (3) theappendix Is not the record but merely a selection there-from for the convenience of tie Judges of the court ofappeals; the record Is the actual trial court record, andtile record Itself !s always available to supply inadvertentomissions from tile appendix. These essentials are incor-porated, either by rule or by practice, in tile circuits thatcontinue to require tile printed record rather than tileappendix. See 5th Cir, Rule 23(a) (9) and 8th Cir. Rule10 (a)-(d).

Subditision (b). Under tile practice in six of tile eightcircuits which now use the appendix method, unless tileparties agree to use a single appendix, the appellant fileswith his brief an appendix containing the parts of therecord which he deems it essential that the court readill order to determine the questions presented. If tileappellee deems additional parts of the record necess.ary liemust Include such parts as an appendix to his brief. Theproposed rules differs from that practice. By the new rulea single appendix is to be filed. It Is to be preparedby the appellant, who must include therein those partswhich lie deems essential and tlose which the appelleedefignates as essential.

Under tile practice by which each party files his ownappendix the resulting reproduction of essential partsof the record is often fragmentary; it is not Infrequentlynecessary to piece several appendices together to arriveat a usable reproduction. Too, there seems to be atendency on the part of some appellants to reproduce lessthan what is necessary for a determination of tile issuespresented (see Moran Towing Corp. v. M. A. GamminoConstruction Co., 363 F. 2d 108 (1st Cir. 1966); Walters v.Shari Music Publishing Corp., 298 F. 2d 205 (2d Cir. 1962)and cases cited therein; Mforrison v. Texas Co.. 289 F. 2d382 (7th Cir. 1961) andi cases cited therein), a tendencywhich Is doubtless encouraged by tile requirement inpresent rules that tile appellee reproduce in his separatelyprepared appendix such necessary parts of the record asare not included by tile appellant.

Under tile proposed rule responsibility for tile plcpara-tion of tile appendix is placed on the appellant. If theappellee feels that tile appellant has omitted essentialportions of the record, he may require the appellant toinclude such portions in the appendix. The appellant isprotected against a demand that lie reproduce partswhich lie considers unnecessary by tile provisions entitlinghim to require the appellee to advance tile costs of re-producing such parts and authorizing denial of costs formatter unnecessarily reproduced.

Subdivision (c). Tills subdivision permits the appellantto elect to defer the production of tile appendix to thebriefs until the briefs of both sides are written, andautthorizes a court of appeals to require such deferredfiling by rule or order. Tile advantage of this method ofpreparing the appendix Is that it permits the parties todetermine what parts of the record need to be repro-duced inI tile light of the ssues actually presented by thebriefs. Often neither side Is In a position to say precisely

what is needed until tile briefs are completed. Once tileargument on both sides is known, it should be possibleto confine tile matter reproduced In tile appendix to thatwhich is essential to a determination of the appeal or re-view. This method of preparing tile appendix is presentlyin use in the Tenth Circuit (Rule 17) and In other circuitsin review of agency proceedings, and It has proven itsvalue in reducing the volume required to be reproduced.When tile record Is long, use of this method is likely toresult in substantial economy to tile parties.

Subdirision (e). The purpose of this subdivision Is toreduce the cost of reproducing exhibits. While subdivision(a) requires that 10 copies of the appendix be filed, unlessthe court requires a lesser number, subdivision (e) permitsexhibits necessary for tile determination of all alpeal tobe bound separately, and requires only 4 copies of sucha separate voliume or volumes to be filed add a singlecopy to be served oil counsel.

Subdirisv)i (/). This subdivision authorizes a court ofappeals to dispense with tile appendix method of repro-ducing parts of the record antd to hear appeals ol the orig-inal record and such copies of It as tile court may require.

Since 1962 tle Ninth Circuit has permitted all appealsto be heard on the original record and a very limited num-ber of copies. Under the practice as adopted In 1062, ainyparty to an appeal could elect to have the appeal heardonl the original record and two copies thereof rather thanon the printed record theretofore required. The resultingsubstantial .;aving of printing costs led to tile election oftile new practice tn virtually all cases, and by 1967 tileuse of printed records had ceased. By a recent amend-ment, tile Ninth Circuit has abolished tile printed recordaltogether. Its rules now pro% ide that all appeals are to beheard oil tile original record, and it has reduced tile ntm-ber of copies required to two sets of copies of the trans-mitted original papers (excluding copies of exhibits, whichneed not be filed unless specifically ordered). See 9 Cir.Rule 10. as armended June 2, 1967, effective September 1,1967. Tile Eighth Circuit permits appeals Ill crimtnal casesand In habeas corpus and 28 U.S.C. § 2255 proceedingsto be heard on the original record and two copies thereof.See 8 Cir. Rule ii (i)-(jJ). Tile Tenth Circuit permitsappeals in all cases to be heard ol tile original record andfour copies thereof whentver tile record consists of twolunidred pages or less. See 10 Cir. Rule 17(a). This sub-division expressly authorizes tile continuation of the prac-tices in the Eigilh, Ninth and Tenth Circuits.

The judges of the Court of Appeals for tile Ninth Circuithave expressed complete satisfaction with tile practicethere in use and have suggested that attention be calledto tile advantages which it oifers in terms of reducingcost.

RULE 31.-FILING AND SERVICE OF BRIEFS

(a) Time for Serving and Filing Briefs.The appellant shall serve and file his brief within

40 days after the date on which the record is filed.The appellee shall sc-ve and file his brief within30 days after service of the brief of the appellant.The appellant may serve and file a reply brief within14 days after service of the brief of the appellee, but,except for good cause shown, a reply brief must befiled at least 3 days before argument.

(b) Number of Copies to be Filed and Served.Twenty-five copies of each brief shall be filed with

the clerk, unless the court by order in a particularcase shall direct a lesser number, and two copies shallbe served on counsel for each party seperately repre-sented. If a party is allowed to file typewritten rib-bon and carbon copies of the brief, the original and

three legible copies shall be filedwith the clerk, and

one copy shall be served on counsel for each party

separately represented.

(c) Consequence of Failure to File Briefs.If an appellant falls to file his brief within the time

provided by this rule, or within the time as extended,

Rule 31 Page 2262


an appellee may move for dismissal of the appeal. Ifan appellee fails to file his brief, he will not be heardat oral argument except by permission of the court.

NOTES OF ADVISORY COMIAI TEL ON APPELLATE RULES

A majority of the circuits now require the brief oi theappellant to be filed within 30 days from tile date on . hichthe record is filed. But ill those circuits an exchan-ge ofdesignations is unnecessary in the preparation of the ap-peidix. The appellant files with Ilis brief in appendixcontaining the parts of the record which he deems es-seltial. If the appellee considers other pIarts essential, lieIncludes those pirts il his Own appendix. Sice the pro-posed rule requires the appellant to file witl his briefan appendix containing necessary parts of tile record asdesiginated by both parties, the rule allows the aplellant40 days in order to provide time for the exchange of desig-nations respecting tile content of the appendix (see Rle30(b) ).

RULE 32.-Foam oF BRIEFS, TIlE APPENDIX AND OTHER

PAPERS

(a) lorm of Briefs and tlie Appendix.Briefs and appendices may be produced by stand-

ard typographic printing or by any duplicating orcopying process which produces a clear black imageon white paper. Carbon copies of briefs and appen-dices may not be submitted without permission ofthe court, except in behalf of parties allowed toproceed in forma pauperis. All pi'inted matter nlustappear in at least 11 point type on opaque, unglazedpaper. Briefs and appendices produced by the stand-ard typographic process shall be bound in volumeshaving pages 6CR by 9!/.1 inches and type matter 4!by 71 inches. Those produced by any other processshall be bound in volumes having pages not ex-ceeding 8 !.', by 11 inches and type mnatter not exceed-ing 61, by 91/.2 inches, with double spacing betweeneach line of text. In patent cases the pages of briefsand appendices may be of such size as is necessaryto utilize copies of patent documents. Copies of thereporter's transcript and other papers reproducedin a manner authorized by this rule may be insertedin the appendix; such pages nmay be informally re-numbered if necessary.

If briefs are produced by conmercial printing orduplicating firms, or, if produced otherwise and thecovers to be described are available, the cover of thebrief of the appellant should be blue; that of theappellee, red; that of an intervenor or amicus curiae,green; that of any reply brief, gray. The coverof the appendix, If separately printed, should bewhite. The front covers of the briefs and of appen-dices, If separately printed, shall contain: (1) thename of the court and the number of the case; (2)the title of the case (see Rule 12(a) ) ; (3) the natureof the proceeding in the court (e.g., Appeal; Petitionfor Review) and the name of the court, agency orboard below; (4) the title of the document (e. g.Brief for Appellant, Appendix) ; and (5) the namesand addresses of counsel representing the party onwhose behalf the document is filed.

(b) Form of Other Papers.Petitions for rehearing shall be produced in a

manner prescribed by subdivision (a). Motions andother papers may be produced in like manner, orthey may be typewritten upon opaque, unglazed

paper 81/2 by 11 inches in size. Lines of typewrittentext shall be double spaced. Consecutive sheets shall

be attached at the left margin. Carbon copies maybe used for filing and service if they are legible.

A motion or other paper addressed to the courtshall contain a caption setting forth the name ofthe court, the title of the case, the file number, anda brief descriptive title indicating the purpose oftle paper.

NOTES OF ADVISORY CO.IMITTEE ON APPELLATE RULES

Only two methods of printing are now generallyrecognized by the circuits-standard typographic printingand the offset duplicating proces' (multillth). A third,mimeographing, is permitted in the Fifth Circuit. TheDistrict of Columbia, Ninth, and 'entl Circuits permitrecords to be reproduced by copying processes. The Com-mittee feels that recent and impending advanlL's In thearts of duplicating and copying warrant experimentationwith less costly forms of reproduction than those nowgenerally authorized. The proposed rule permits, in effect,the use of any process other than the carbon copy processwhichl produces a clean, readable page. What constitutessuch is left in first instance to the parties and ulti-mately to the court to determine. The final sentence ofthe first paragraph of subdivision (a) is added to allowthe use of multilith, mimeograph, or other forms ofcopies of the reporter's original transcript whenever suchare a' -illable.

RULE 33.-PREIIEARING CONFERENCE

The court may direct the attorneys for the partiesto appear before the court or a judge thereof for aprehearing conference to consider the silmplifica-tion of the issues and such other matters as may aidin the disposition of the proc2eding by the court. Thecourt or" judge shall make an order which recitesthe action taken at the conference and the agree-ments made by the parties as to any of the mat4,!rsconsidered and which limits the issues to those notdisposed of by admission oi' agreements of counsel,and such order when entered controls the subsequentcourse of the proceeding, unless modified to preventmanifest injustice.

NOTES OF ADVISORY COM1IMITTEE ON APPELLATE RULES

The uniform rule for review or c..lorcement of ordersof administrative agencies, boards, commissions or ofli-cers (see the general note following Rule 15) authorizesa prehearing conference in agency review proceedings.The same considerations which make a prehearing con-ference desirable in such proceedings may be present inIcertain cases on appeal from the district courts. The pro-posed rule is based upon subdivision 11 of the presentuniform rtle for review of agency orders.

RULE 34.-ORAL ARGUMENT

(a) Notice of Argunent; lostponement.

The clerk shall advise all parties of the time andplace at which oral argument will be heard. A re-quest for postponement of the argument must bemade by motion filed reasonably in advance of thedate fixed for hearing.

(h) lime Allowed for Argument.Unless otherwise provided by rule for all cases or

for classes of cases, each side will be allowed 30 min-ut3s for argument. If counsel is of the opinion that

additional time is necessary for the adequate pres-entation of his argument, he may request suchadditional time as ie deems necessary. Requestsmay be made by letter addressed to the clerk reason-ably in advance of the date fixed for the argumentand shall be liberally granted if cause therefor isshown. A party is not obliged to use all of the time

Page 2263 Rule 34


allowed, and the court may terminate the argumentwhenever in its judgment further argument isunnecessary.

(c) Order and Content of Argument.The appellant is entitled to open and conclude

the argument, The opening argument shall includea fair statement of the case. Counsel will not be per-mitted to read at length from briefs, records orauthorities.

(d) Cross and Separate Appeals.A cross or separate appeal shall be argued with

the initial appeal at a single argument, unless thecourt otherwise directs. If a case involves a cross-appeal, the plaintiff in the action below shall bedeemed the appellant for the purpose of this ruleunless the parties otherwise qgree or the courtotherwise directs. If separate appellants support thesame argument, care shall be taken to avoid dupli-cation of argument.

(e) Non-Appearance of Parties.If the appellee fails to appear to present argu-

ment, the court will hear argument on behalf ofthe appellant, if present. If the appellant fails to ap-pear, the court may hear argument on behalf of theappellee, if his counsel is present. If neither partyappears, the case will be decided on the briefs unlessthe court shall otherwise order.

(f) Submission on Briefs.By agreement of the parties, a case may be sub-

mitted for decision on the briefs, but the court maydirect that the case be argued.

(g) Use of Physical Exhibits at Argument; Removal.If physical exhibits other than documents are to

be used at the argument, counsel shall arrange tohave them placed in the court room before the courtconvenes on the date of the argument. After theargument counsel shall cause the exhibits to beremoved from the court room unless the court other-wise directs. If exhibits are not reclaimed by coun-sel within a reasonable time after notice is given bythe clerk, they shall be destroyed or otherwise dis-posed of as the clerk shall think best.


A majority of circuits now limit oral argument to thirtyminutes for each side, with the provision that additionaltime may be made available upon request. The Commit-tee is of the view that thirty minutes to each side is suffi-cient in most cases, but that where additional time isnecessary it should be freely granted on a proper show-Ing of cause therefor. It further feels that the matter oftime should be left ultimately to each court of appeals,subject to the spirit of the rule that a reasonable timeshould be allowed for argument. The term "side" is usedto indicate that the time allowed by the rule is affordedto opposing interests rather than to individual parties.Thus if multiple appellants or appellees have a commoninterest, they constitute only a single side. If counselfor multiple parties who constitute a single side feel thatadditional time is necessary, they may request it.

In other particulars this rule follows the usual prac-tice among the circuits. See 3d Cir. Rule 31: 6th Cir.Rule 20; 10th Cir. Rule 23.

RULE 35.-DETERMINATION OF CAUSES BY THE COURT

IN BANC

(a) When Hearing or Rehearing in Bane Will beOrdered.

A majority of the circuit judges who are in regularactive service may order that an appeal or other

proceeding be heard or reheard by the court of ap-peals in bane. Such a hearing or rehearing is notfavored and ordinarily will not be ordered except(1) when consideration by the full court is necessaryto secure or maintain uniformity of its decisions, or12) when the proceeding involves a question ofexceptional importance.

(b) Suggestion of a Party for Hearing or RehearinginI Bane.

A party may suggest the appropriateness of aheaaing or rehealing in bane. The clerk shall trans-mit any such suggestion to the judges of the courtwho are in regular active service but a vote will notbe taken to determine whether the cause shall beheard or reheard in bane unless a judge in regularactive service or a judge who was a member of thepanel that rendered a decision sought to be reheardrequests a vote on such a suggestion made by a party.

(c) inime f,'r Suggestion of a Party for Rehearing inBane; Suggestion Does Not Stay Mandate.

If a party desires to suggest a rehearing in bane,the suggestion must be made within the time pre-scribed by Rule 40 for filing a petition for rehearing,whether the suggestion is made in such petition orotherwise. The pendency of such a suggestionwhether or not included in a petition for rehearingshall not affect the finality of the judgment of thecourt of appeals or stay the issuance of the mandate.

NOTES OF ADvisoRY COMIMITTEE ON APPELLATE RULES

Statutory authority for in banc hearings is found in28 U.S.C. § 46(c). The proposed rule is responsive to theSupreme Court's view in Western Pacific Ry. Corp. v.Western Pacific Ry. Co., 345 U.S. 247, 73 S. Ct. 656, 97L Ed. 986 (1953), that litigants should be free to sug-gest that a particular case is appropriate for considera-tion by all the judges of a court of appeals. The ruleis addressed to the procedure whereby a party may sug-gest the appropriateness of convening the court in banc.It does not affect the power of a court of appeals toinitiate in bane hearings sun spontc.

The provision that a vote will not be taken as a resultof the suggestion of the party unless requested by a judgeof the court in regular active service or by a judge whowas a member of the panel that rendered a decisionsought to be reheard is intended to make , clear that asuggestion of a party as such does not require any actionby the court. See Western Pacific Ry. Corp. v. WesternPacific Ry. Co., supra, 345 U.S. at 262, 73 S. Ct. 656. Therule merely authorizes a suggestion, imposes a time limiton suggestions for rehearings in bane, and provides thatsuggestions will be directed to the judges of the courtin regular active service.

In practice, the suggestion of a party that a case bereheard in bane is frequently contained In a petition forrehearing, commonly styled "petition for rehearing inbanc." Such a petition is in fact merely a petition for arehearing, with a suggestion that the case be reheard inbane. Since no response to the suggestion, as distinguishedfrom the petition for rehearing, is required, the panelwhich heard the case may quite properly dispose of thepetition without reference to the suggestion. In such acase the fact that no response has been made to thesuggestion does not affect the finality of the judgmentor the issuance of the mandate, and the final sentenceof the rule expressly so provides.

RULE 36.-ENTRY OF JUDGMENT

The notation of a judgment in the docket con-stitutes entry of the judgment. The clerk shall pre-par'e, sign and enter the judgment following receiptof the opinion of the court unless the opinion directssettlement of the form of the judgment, in which

Rule 35 Page 2264


ecent the clerk shall prepare, sign and enter thejudgment following final settlement by the court.If a judgment is rendered without an opinion, theclerk shall prepare, sign and enter the judgmentfollowing instruction from the court. The clerk shall,on the date Judgment is entered, mail to all parti(r:,a copy of the opinion, if any, or of the judgmcnl ifno opinion was written, and notice of the date ofentry of the judgment.

NOTES OF AnvisoRy CoMhIr'EE ON APPELLATE RULES

This is the typical rule. See Ist Cir. Rule 20; 3d Cir.Rule 32; 6th Cir. Rule 21. At present, uncertainty existsas to the date of entry of Judgment when the opiniondirects subsequent settlement of the precise terms ofthe judgment, a common practice In cases involving en-forcement of agency orders. See Stern and Gressman,Supreme Court, Practice, p. 203 (3d Ed., 1062). The prin-ciple of finality suggests that In such cases entry ofjudgment should be delayed until approval of the Judg-ment in final form.

RULE 37.-INTEREST ON JUDGMENTS

Unless otherwise provided by law, if a judgmentfor money in a civil case is affirmed, whatever in-terest is allowed by law shall be payable from thedate the judgment was entered in the district court.If a judgment is modified o1 reversed with a directionthat a judgment for money be entered in the districtcourt, the mandate shall contain instructions withrespect to allowance of interest.

NOTES OP ADVISORY CoMMrirrTEE ON APPELLATE RULES

The first sentence makes it clear that If a money judg-ment is afimrmed InI the court of appeals, the interest whichattaches to money judgments by force of law (see 28 U.S.C.S1061 and § 2411) upon their initial entry is payable asif no appeal had been taken, whether or not the mandatemakes mention of interest. There has been some confusionon this point. See Blair v. Durham, 139 F. 2d 260 (6thCir., 1943) and cases cited therein.

In reversing or modifying the judgment of the districtcourt, the court of appeals may direct the entry of amoney judgment, as, for example, when the court of ap-peals reverses a judgment notwithstanding tile verdictand directs entry of judgment on the verdict. In such acase the question may arise as to whether interest is torun from the date of entry of the judgment directed bythe court of appeals or from the date on which the judg-ment would have been entered in the district court exceptfor the erroneous ruling corrected on appeal. In Briggs v.Pennsylvania R. Co., 334 U.S. 304, 68 S. Ot. 1039, 92 L. Ed.1403 (1948), the Court held that where the mandate ofthe court of appeals directed entry of judgment upon averdict but made no mention of interest from the dateof the verdict to the date of the entry of the judgmentdirected by tile mandate, the district court was powerlessto add such interest. The second sentence of the proposedrule is a reminder to tile court, the clerk and counsel ofthe Brtggs rule. Since the rule directs that the matter ofinterest be disposed of by the mandate, in cases whereinterest Is simply overlooked, a party who conceives him-self entitled to interest from a date other than the dateof entry of judgment in accordance with the mandateshould be entitled to seek recall of the mandate for dp-termination of the question.

RULE 38.-DAMAGES FOR DELAY

If a court of appeals shall determine that an ap-

peal is frivolous, it may award just damages and

single or double costs to the appellee.

NOTES OP ADvIsoRY COMMITTEE ON APPELLATE RULES

Compare 28 U.S.C. § 1012. While both the statute andthe usual rule on the subject by courts of appeals (FourthCircuit Rule 20 is a typical rule) speak of "damages fordelay," the courts of appeals quite properly allow damages,

attorney's fees and other expenses incurred by an appelleeif the appeal is frivolous without requiring a showing thatthe appeal resulted on delay. See Dunscombe v. Sayle, 340F. 2d 311 (5th Cir., 1965), cert. den., 382 U.S. 814, 86S. Ct.32, 15 L. Ed. 2d 62 (1965); Lowe v. Willacy, 230 F. 2d 170J9th Cir., 1056); Griffith Wellpoint Corp. v. Munro-Lang-stroth, Inc., 269 F. 2d 64 (Ist Cir., 1959): Ginsburg v.Stern, 295 F. 2d 698 (3d Cir., 1961 ). The subjects of inter-est and damages are separately regulated, contrary to thepresent practice of combining the two (see Fourth Cir-cult Rule 20) to make It clear that the awards are dis-tinct and independent. Interest is provided for by law;damages are awarded by the court in its discretion in thecase of a frivolous appeal as a matter of justice to theappellee and as a penalty against the appellant.

RULE 39.-COSTS

(a) To Whiom Allo~ed.

Except as otherwise provided by law, if an appealis dismissed, costs shall be taxed against the appel-lant unless otherwise agreed by the parties or or-

dered by the court; if a judgment is affirmed, costsshall be taxed against the appellant unless otherwiseordered; if a judgment is reversed, costs shall betaxed against the appellee unless otherwise ordered;if a judgment is affirmed or reversed in part, or isvacated, costs shall be allowed only as ordered by the

court.

(h) Cosb, For and Against the United Slates.

In cases involving the United States or an agencyor officer thereof, if an award of costs against theUnited States is authorized by law, costs shall be

awarded in accordance with the provisions of sub-division (a) ; otherwise, costs shall not be awarded

for or against the United States.

(c) Costs of Briefs, Appendices, and Copies of Records.

The cost of printing or otherwise producing neces-sary copies of briefs, appendices, or copies of recordsauthorized by Rule 30(f) shall be taxable in the

court of appeals at rates not higher than those gen-erally charged for such work in the area where theclerk's office is located. A party who desires such costs

to be taxed shall state them in an itemized and veri-

fied bill of costs which le shall file with the clerk,with proof of service, within 14 days after the entry

of judgment.

(d) Clerk to Insert Costs in Mandate.The clerk shall prepare and certify an itemized

statement of costs taxed in the court of appeals forinsertion in the mandate. If the mandate has been

issued before final determination of costs, the state-ment, or any amendment thereof, may be added tothe mandate at any time upon request of the clerk

of the court of appeals.

(e) Costs on Appeal Taxable in tIhe )istrict Courts.

Costs incurred in the preparation and transmis-

sion of the record, the cost of the reporter's tran-script, if necessary for the determination of the ap-

peal, the premiums paid for cost of supersedeas

bonds or other bonds to preserve rights pending ap-

peal, and the fee for filing the notice of appeal shall

be taxed in the district court as costs of the appeal

in favor of the party entitled to costs under this rule.

NOTES ON ADvisoRy COMMITTEE ON APPELLATE RULES

Subdivision (a). Statutory authorization for taxation ofcosts is found in 28 U.S.C. § 1920. The provisions of thissubdivision follow the usual practice in the circuits. Afew statutes contain specific provisions in derogation of

Rule 39Page 2265


these general provisions. (See 28 U.S.C. § 1928, which for-bids the award of costs to a successful plaintiff in a patentinfringement action under the circumstances describedby the statute.) These statutes are controlling in cases towhich they apply.

Subdivision (b). The rules of the courts of appeals atpresent connonly deny costs to the United States exceptas allowance may be directed by statute. Those rules werepromulgated at a time when the United States was gen-erally invulnerable to an award of costs against it, andthey appear to be based on the view tlt if the UnitedStates is not subject to costs if it loses, it ought not beentitled to recover costs if it wins.The number of cases affected by such rules has been

greatly reduced by the Act of July 18, 1966, 80 Stat. 308 (1U.S. Code Cong. & Ad. News, p. 349 (1966)), 89th Cong.,2d Sess., which amended 28 U.S C. § 2412, the former gel-eral bar to the award of costs against the United States.Section 2412 as amended generally places the UnitedStates on the same footing as private parties with respectto the award of costs in civil cases. But the United Statescontinues to enjoy Immunity from costs in certain cases.By its terms amended section 2412 authorizes an awardof costs against the United States only in civil actions,and it excepts from its general authorization of an awardof costs against the United States cases which are "other-wise specifically provided (for) by statute." Furthermore,the Act of July 18, 1966, supra, provides that the amend-ments of section 2412 which it effects shall apply only toactions filed subsequent to the date of its enactment. Thesecond clause continues in effect, for these and all othercases in which the United States eijoys immunity fromcosts, the presently prevailing rule that the United Statesmay recover costs as the prevailing party only if It wouldhave suffered them as the losing party.

Subdivision (c). While only five circuits (D.C. Cir. Rule20(d); 1st Cir. Rule 31(4): 3d Cir. Rule 35(4); 4th Cir.Rule 21(4); 9th Cir. Rule 25, as amended June 2, 1967)presently tax the cost of printing briefs, the proposedrule makes the cost taxable in keeping with the principleof this rule that all cost items expended in the prosecutionof a proceeding should be borne by the unsuccessfulparty.

Subdivision (c). The costs described in this subdivisionare costs of the appeal and, as such, are within the under-taking of the appeal bond. They are made taxable in thedistrict court for general convenience. Taxation of thecost of the reporter's transcript is specifically authorizedby 28 U.S.C. k 1920, but in the absence of a rule somedistrict courts have held themselves without authorityto tax the cost (Perlman v. Feldmann, 116 F. Supp. 102(D. Conn., 1953); Firtag v. Gendleman, 152 F. Supp. 226(D.D.C., 1957); Todd Atlantic Shipyards Corps. v. TheSouthport, 100 F. Stipp. 763 (E.D.S.C., 1951). Provision fortaxation of the cost of premiums paid for supersedeasbonds is common in the local rules of district courts andthe practice is established in the Second, Seventh, andNinth Circuits. Berner v. Britigh Commonwealth PacificAir Lines, Ltd., 362 F. 2d 799 (2d Cir. 1966); Land Obero-esterreich v. Glide, 93 F. 2d 292 (2d Cir., 19,,"); In reNorthern Ind., Oil Co., 192 F. 2d 139 (7th Cir., 1951); Lunnv. F. W. Woolworth, 210 F. 2d 159 (9th Cir., 1954).

RULE 40.-PETITION FOR REHEARING

(a) Time 'or Filing; Content; Answer; Action byCourt I Granted.

A petition for rehearing may be filed within 14days after entry of judgment unless the time is short-

ened or enlarged by order. The petition shall statewith particularity the points of law or fact which in

the opinion of the petitioner the court has overlooked

or misapprehended and shall contain such argument

in support of the petition as the petitioner desires

to present. Oral argument in support of the petitionwill not be permitted. No answer to a petition for re-

hearing will be received unless requested by the court,

but a petition for rehearing will ordinarily not be

granted in the absence of such a request. If a petition

for rehearing is granted the court may make a finaldisposition of the cause without reargument or mayrestore it to the calendar for reargument or resub-mission or may make such other orders as are deemedappropriate under the circtumstances of the particu-lar case.

(b) l"orn of Petition; Lengti.The petition shall be in a form prescribed by Rule

32(a), and copies shall be served and filed as pre-scribed by Rule 31(b) for the service and filing ofbriefs, Except by permission of the court, a petitionfor rehearing shall not exceed 10 pages of standardtypographic printing or 15 pages of printing by anyother process of duplicating or copying.

NOTES OF' ADvisoRy COMMITTEE ON APPELLATE RULES

This is the usual rule among the circuits, except thatthe express prohibition against filing a reply to the peti-tion is found only in the rules of the Fourth, Sixth, andEighth Cir,aits (it is also contained in Supreme CourtRule 58(3) ). It Is included to save time and expense tothe party victorious on appeal. In the very rare instancesin which a reply is useful, the court will ask for it.

RULE 41.-ISSUANCE OF MANDATE; STAY OF MANDATE

(a) Date of Issuance.The mandate of the court shall issue 21 days after

the entry of judgment unless the time is shortenedor enlarged by order. A certified copy of the judg-ment and a copy of the opinion of the court, if any,and any direction as to costs shall constitute themandate, unless the court directs that a formalmandate issue. The timcly filing of a petition forrehearing will stay the mandate until dispositionof the petition unless otherwise ordered by the court.If the petition is denied, the mandate shall issue 7days after entry of the order denying the petitionunless the time is shortened or enlarged by order.

(b) Stay of Mandate Pending Application forCertiorari.

A stay of the mandate pending application to theSupreme Court for a writ of certiorari may begranted upon motion, reasonable notice of whichshall be given to all parties, The stay shall not exceed30 days unless the period is extended for cause shown.If during the period of the stay there is filed with theclerk of Ve court of appeals a notice from the clerkof the Supreme Court that the party who has ob-tained the stay has filed a petition for the writ inthat court, the tay shall continue until final dispo-sition by the Supreme Court. Upon the filing of acopy of an order of the Supreme Court denying thepetition for writ of certiorari the mandate shall issueimmediately. A bond or other security may be re-quired as a condition to the grant or continuance ofa stay of the mandate


The proposed rule follows the rule or practice in a ma-jority of circuits by which copies of the opinion and thejudgment serve in lieu of a formal mandate in theordinary case. Compare Supremp Court Rule 59. Although28 U.S.C. § 2101(c) permits a writ of certiorari to be filedwithin 90 days after entry of judgment, seven of theeight circuits which now regulate the matter of stayspending application for certiorari limit the initial stay ofthe mandate to the 30-day period provided in the pro-posed rule. Compare D.C. Cir. Rule 27(e).

Rule 40 Page 2266


RULE 42.-VOLUNTARY DISMISSAL

(a) l)ismissal in the District Court.If an appeal has not been docketed, the appeal may

be dismissed by the district court upon the filing inthat court of a stipulation for dismissal signed byall the parties, or upon motion and notice by theappellant.

(b) l)ismissal in the Court of Appeals.If the parties to all appeal or other proceeding

shall sign and file with the clerk of the court ofappeals an agi 2ement thlat the proceeding be dis-missed, specifying the terms as a payment of costs,and shall pay whatever fees are due, the clerk shallenter the case dismissed, but no mandate or otherprocess shall issue without an order of the court.Al appeal may be dismissed on motion of the ap-pellant upon such terms as may be agreed upon bythe parties or fixed by the court.


Subdivision (a). This subdivision is derived fromFRCP 73(a) without change of substance.

Subdivision (b). The first sentence Is a common pro-vision in present circuit rules. The second sentence Isadded. Compare Supreme Court Rule 60.

RULE 43.-SUBSTITUTION OF PARTIES

(a) I)eath of a Party.If a party dies after a notice of appeal is filed or

while a proceeding is otherwise pending in the courtof appeals, the personal representative of the de-ceased party may be substituted as a party on motionfiled by the representative or by any party with theclerk of the court of appeals. The motion of a partyshall be served upon the representative in accordancewith the provisions of Rule 25. If the deceased partyhas no representative, any party may suggest thedeath on the record and proceedings shall then behad as the court of appeals may direct. If a partyagainst whom an appeal may be taken dies afterentry of a judgment or order in the district courtbut before a notice of appeal is filed, an appellantmay proceed as if death had not occurred. After thenotice of appeal is filed substitution shall be ef-fected in the court of appeals in accordance with thissubdivision. If a party entitled to appeal shall diebefore filing a notice of appeal, the notice of appealmay be filed by his personal representative, or if liehas no personal representative, by his attorney ofrecord within the time prescribed by these rules.After the notice of appeal is filed substitution shallbe effected in the court of appeals in accordancewith this subdivision.

(b) Substitution for Other Causes.If substitution of a party in the court of appeals is

necessary for any reason other than death, substitu-tion shall be effected in accordance with the proce-dure prescribed in subdivision (a).

(c) Public Officers; Death or Separation fromn Oice.(1) When a public officer is a party to an appeal

or other proceeding in the court of appeals in hisofficial capacity and during its pendency dies, re-signs or otherwise ceases to hold office, the actiondoes not abate and his successor is automaticallysubstituted as a party. Proceedings following the sub-stitution shall be in the name of the substituted

party, but any misnomer not affecting the substantialrights of the parties shall be disregarded. An orderof substitution may be entered at any time, but theomission to enter such an order shall not affect thesubstitution.

(2) When a public officer is a party to an appealor other proceeding in his official capacity lie may bedescribed as a party by his official title rather thanby name; but the court may require his name tohe added.


Subdivzsion (a). The first three sentences described aprocedure similar to the rule on substitution In civil ac-tions in the district court. See FRCP 25(a). Tile fourthsentence expressly authorizes an appeal to be takenagainst one who has died after the entry of judgment.Compare FRCP 73(b), which impliedly authorizes suchan appeal.

The sixth sentence authorizes an attorney of recordfor the deceased to take an appeal on behalf of successorsill interest if the deceased has no representative. At pres-ent, i" a party entitled to appeal dies before the notice ofappeal is filed, the appeal can presumably be taken onlyby his legal representative and must be taken withinthe time ordinarily prescribed. 13 Cyclopedia of FederalProcedure (3d Ed.) § 63.21. The states commonly makespecial provisions for the event of the death of a partyentitled to appeal, usually by extending the time other-wise prescribed. Rules of Civil Procedure for SuperiorCourts of Arizona, Rule 73(t), 16 A.R.S.; New Jersey Rev.Rtules 1:3-3: New York Civil Practice Law and Rules, Sec.1022; Wisconsin Statutes Ann. 274.01(2). The provisionin the proposed rule is derived from California Code ofCivil Procedure, Sec. 941.

Subdivision (c). This subdivision is derived fromFRCP 25(d) and Supreme Court Rule 48, with appropri-ate changes.

RULE 44.-CASES INVOLVING CONSTITUTIONAL QUES-TIONS WHERE UNITED STATES Is NOT A PARTY

It shall be the duty of a party who draws in ques-tion the constitutionality of any Act of Congress inany proceeding in a court of appeals to which theUnited States, or any agency thereof, or any officeror employee thereof, as such officer or employee, isnot a party, upon the filing of the record, or as soonthereafter as the question is raised in the court ofappeals, to give immediate notice in writing to thecourt of the existence of said question. The clerkshall thereupon certify such fact to the AttorneyGeneral.


This rule is now found in the rules of a majority ofthe circuits. It Is in response to the Act of August 24, 1937(28 U.S.C. § 2403), which requires all courts of theUnited States to advise the Attorney General of theexistence of an action or proceeding of the kind describedin the rule.

RULE 45.-DUTIES OF CLERKS

(a) General Provisions.The clerk of a court of appeals shall take the oath

and give the bond required by law. Neither theclerk nor any deputy clerk shall practice as an at-torney or as counselor in any court while he con-tinues in office. The court of appeals shall be deemedalways open for the purpose of filing any properpaper, of issuing and returning process and of mak-ing motions and orders. The office of the clerk withthe clerk or a deputy in attendance shall be openduring business hours on all days except Saturdays,Sundays, and legal holidays, but a court may provide

Page 2267 Rule 45


by local rule or order that the office of its clerk shallbe open for specified hours on Saturdays or on par-ticular legal holidays other than New Year's Day,Washington's Birthday, Memorial Day, Independ-ence Day, Labor Day, Veterans Day, ThanksgivingDay and Christmas Day.

(b) The Docket; Calendar; Other Records Required.The clerk shall keep a book, known as the docket,

in such form and style as may be prescribed by theDirector of the Administrative Office of the UnitedStates Courts with the approval of the Judicial Con-ference of the United States, and shall enter thereineach case. Cases shall be assigned consecutive filenumbers. The file number of each case shall be notedon the folio of the docket whereon the first entry ismade. All papers filed with the clerk and all process,orders and judgments shall be entered chronologi-cally in the docket on the folio assigned to the case.Entries shall be brief but shall show the nature ofeach paper filed or judgment or order entered. Theentry of an order or judgment shall show the date theentry is made. The clerk shall keep a suitable indexof cases contained in the docket.

The clerk shall prepare, under the direction of thecourt, a calendar of cases awaiting argument. Inplacing cases on the calendar for argument, he shallgive preference to appeals in criminal cases and toappeals and other proceedings entitled to preferenceby law.

The clerk shall keep such other books and recordsas may be required from time to time by the Directorof the Administrative Office of the United StatesCourts with the approval of the Judicial Conferenceof the United States, or as may be required by thecourt.

(c) Notice of Orders or Judgments.Immediately upon the entry of an order or judg-

ment the clerk shall serve a notice of entry by mailupon each party to the proceeding together with acopy of any opinion respecting the order or judgment,and shall make a note in the docket of the mailing.Service on a party represented by counsel shall bemade on counsel.

(d) Custody of Records and Papers.The clerk shall have custody of the records and

papers of the court. He shall not permit any originalrecord or paper to be taken from his custody exceptas authorized by the orders or instructions of thecourt. Original papers transmitted as the record onappeal or review shall upon disposition of the casebe returned to the court or agency from which theywere received. The clerk shall preserve copies ofbriefs and appendices and other printed papers filed.


The duties imposed upon clerks of the courts of appealsby this rule are those imposed by rule or practice in amajority of the circuits The second sentence of sub-division (a) authorizing the closing of the clerk's officeon Saturday and non-national legal holidays follows asimilar provision respecting the district court clerk's officefound in FRCP 77(c) and in FRCrP 56.

RULE 46.-ATTORNEYS

(a) Admission to the Bar of a Court of Appeals;Eligibility; 'rocedure for Admission.

An attorney who has been admitted to practicebefore the Supreme Court of the United States, or

the highest court of a state, or another United Statescourt of appeals, or a United States district court(including the district courts for the Canal Zone,Guam and the Virgin Islands), and who is of goodmoral and professional character, is eligible foradmission to the bar of a court of appeals.

An applicant shall file with the clerk of the courtof appeals, on a form. approved by the court andfurnished by the clerk, an application for admidssioncontaining his personal statement showing his eligi-bility for membership. At the foot of the applicationthe applicant shall take and suoscribe to the follow-ing oath or affirmation:

I - . . ..------------------------- do solemnly

swear (or affirm) that I will demean myself asan attorney and counselor of this court, up-rightly and according to law; and that I willsupport the Constitution of the United States.ereafter, upon written or oral motion of a mem-

ber of the bar of the court, the court will act uponthe application. An applicant may be admitted byoral motion in open court, but it is not necessarythat he appear before the court for the propose ofbeing admitted, unless the court shall otherwiseorder. An applicant shall upon admission pay to theclerk the fee prescribed by rule or order of the court.

(b) Suspension or Disbarment.When it is shown to the court that any member

of its bar has been suspended or disbarred frompractice in any other court of record, or has beenguilty of conduct unbecoming a member of the barof the court, he will be subject to suspension or dis-barment by the court. The member shall be affordedan opportunity to show good cause, within suchtime as the court shall prescribe, why he should notbe suspended or disbarred. Upon his response to therule to show cause, and after hearing, if requested,or upon expiration of the time prescribed for aresponse if no response is made, the court shallenter an appropriate order.

(c) Disciplinary Power of the Court over Attorneys.A court of appeals may, after reasonable notice

and an opportunity to show cause to the contrary,and after hearing, if requested, take any appropri-ate disciplinary action against any attorney whopractices before it for conduct unbecoming a mem-ber of the bar or for failure to comply with theserules or any rule of the court.

NOTES OF ADVISORY COMMrrTEE ON APPELLATE RULES

Subdivision (a). The basic requiremant of membershipin the bar of the Supreme Court, or of the highest courtof a state, or in another court of appeals or a district courtis found, with minor variations, in the rules of tencircuits. The only other requirement in those circuits isthat the applicant be of good moral and professionalcharacter. In the District of Columbia Circuit applicantsother than members of the District of Columbia Districtbar or the Supreme Court bar must claim membershipin the bar of the highest court of a state, territory orpossession for three years prior to application for ad-mission (D.C. Cir. Rule 7). Members of the District ofColumbia District bar and the Supreme Court bar againexcepted, applicants for admission to the District ofColumbia Circuit bar must meet precisely defined prelawand law school study requirements (D.C. Cir. Rule 71/).

A few circuits now require that application for ad-mission be made by oral motion by a sponsor member inopen court. The proposed rule permits both the appli-cation and the motion by the sponsor member to be in

Page 2268Rule 46


writing, and permits action on the motion without theappearance of the applicant or the sponsor, unlesi thecourt otherwise orders.

Subdivision (b). The provision respecting suspensionor disbarment is uniform. Third Circuit Rule 8(3) istypical.

Subdivision (c). At present only Fourth Circuit Rule36 contains an equivalent provision. The purpose of thisprovision is to make explicit the power of a court of ap-peals to impose sanctions less serious than suspensionor disbarment for the breach of rules. It also affordssome measure of control over attorneys who are notmembers of the bar of the court. Several circuits permita non-member attorney to file briefs and motions, mem-bership being required only at the time of oral argument.And several circuits permit argument pro hac vice bynon-member attorneys.

RULE 47.-RULES BY COURTS OF APPEALS

Each court of appeals by action of a majority of

the circuit judges in regular active service may from

time to time make and amend rules governing itspractice not inconsistent with these rules. In allcases not provided for by rule, the courts of appealsmay regulate their practice in any manner not in-

consistent with these rules. Copies of all rules madeby a court of appeals shall upon their promulgationbe furnished to the Administrative Office of theUnited States Courts.

NOTES OF ADvisoRY COMMITTEE ON APPELLATE RULES

This rule continues the authority now vested in indi-vidual courts of appeals by 28 U.S.C. § 2071 to make rulesconsistent with rules of practice and procedure promul-gated by the Supreme Court.

RULE 48.-TIT'.E

These rules may be known and cited as the Federal

Rules of Appellate Procedure.

APPENDIX OF FORMS

Form 1. Notice of Appeal to a Court of Appeals froma Judgment or Order of a District Court.

United States District Court for theDistrict of

File Number ...

A. B., Plaintiffv. Notice of Appeal

C. D., Defendant

Notice is hereby given that C. D., defendant abovenamed, hereby appeals to the United States Court ofAppeals for the --------------- Circuit (from thefinal judgment) (from the order (describing it))entered in this action on the ---- day of ---------

Signed: ------------ --------Attorney for C. D.

Address: ----------------------

NOTECounsel for the appellant is requested to furnish the

clerk of the district court witl a sufficient number ofcopies of the original notice to permit the clerk to servea copy on each party other than the appellant.

Form 2. Notice of Appeal to a Court of Appeals from

a Decision of the Tax Court.

Tax Court of the United States

Washington, D.C.

A. B., Petitioner

Commissioner of Internal Docket No

Revenue, Respondent

Notice of Appeal

Notice is hereby given that A. B. hereby appeals to

the United States Court of Appeals for the --------

-------- Circuit from [that part of] the decision of

this court entered in the above captioned proceed-

ing on the --------- day of --------- , 19-- [relat-

ing to --------------- .Signed:---------------------

Counsel for A. B.

Address:--------------------

NOTE

Use the language enclosed in brackets if the appeal isfrom a designated part of a decision rather than from theentire decision. Counsel for the appellant Is requested tofurnish the clerk of the Tax Court witl a sufficient num-ber of copies of the original notice to permit tile clerk toserve a ccpy on eacl party other than the appellant.

Form 3. Petition for Review of Order of an Agency,

Board, Commission or Officer.

United States Court of AppeaLh for the ----------Circuit

A. B, PetitionerU.

XYZ Commission, Petition for Review.

Respondent I

A. B. hereby petitions the court for review of the

Order of the XYZ Commission (describe the order)

entered on -------- ,- 19_.

Signed: ----------------------

Attorney for ,etitioner.

Address:-------------------

NOTE

If the statute authorizing review specifies the title ofthe paper to be filed to initiate the proceeding In the courtof appeals (as, for example, a petition to set aside theorder, a notice of appeal) the title specified in the statuteshould be used and the appropriate changes made in theabove statement. Rule 15(c) requires the petitioner toprovide the clerk with a copy for each respondent.

Form ,4. Affidavit to Accompany Motion for Leave to

Appeal in Forma Pauperis.

United Stat's District Court for the ------------

District of----------

United States of America

V. No -.--

A.B.

Affidavit in Support of Motion to Proceed on Appealin Forma Pauperis

I --------------------- being first duly sworn,depose and say that I am the ---------------------in the above-entitled case; that in support of mymotion to proceed on appeal without being required

Page 2269 Rule 48


to prepay fees, costs or give security therefor, I statethat because of my poverty I am unable to pay thecosts of said proceeding or to give security therefor;that I believe I am entitled to redress; and that theissues which I desire to present on appeal are thefollowing:

I further swear that the responses which I havemade to the questions and instructions below relat-ing to my ability to pay the cost of prosecuting theappeal are true.

1. Are you presently employed?a. If the answer is yes, state the amount of your

salary or wages per month and give the name andaddress of your employer.

b. If the answer is no, state the date of your lastemployment and the amount of the salary and wagesper month which you received.

2. Have you received within the past twelvemonths any Income from a business, profession orother form of self-employment, or in the form ofrent payments, interest, dividends, or other source?

a. If the answer is yes, describe each source ofincome, and state the amount received from eachduring the past twelve months.

3. Do you own any cash or checking or savingsaccount?

a. If the answer is yes, state the total value of theitems owned.

4. Do you own any real estate, stocks, bonds, notes,automobiles, or other valuable property (excludingordinary household furnishings and clothing) ?

a. If the answer is yes, describe the property andstate its approximate value.

5. List the persons who are dependent upon youfor support and state your relationship to thosepersons.

I understand that a false statement or answer toany questions in this affidavit will subject me to pen-alties for perjury.

SUBSCRIBED AND SWORN TO before me this ---------day of ,19_

Let the applicant proceed without prepayment ofcosts or fees or the necessity of giving securitytherefor.

District Judge.

Page 2270Forin 4

RULES OF CIVIL PROCEDURE FOR TIE UNITED STATES DISTRICT COURTS

AMENDED TO DECEMBEiR 31, 1969

ANALYSIS OF RULESIV. Parties

Rule 23.1. Derivative ActionfI by Shareholders.Rule 23.2. Actions Relating to Unincorporated

Associations.

VI. TrialsRule 44.1. Determination of Foreign Law.

VIII. Provisional and Final Remedies and SpecialProceedings

Rule 65.1. Security: Proceedings Against Sureties.

Supplemental Rules for Certain Admiralty andMaritime Claims

Rule

A. Scope of Rules.B. Attachment and Garnishment: Special Provisions.C. Actions In Ren: Special Provisions.D. Possessory, Petitory, and Partition Actions.E. Actions in Ren and Quasi in Rem: General

Provisions.F. Limitation of Liability.

I. SCOPE OF RULES-ONE FORM OF ACTION

RULE I.-SCOPE OF RULES

These rules govern the procedure in the UnitedStates district courts in all suits of a civil naturewhether cognizable as cases at law or in equity orin admiralty, with the exceptions stated ilI Rule 81.They shall be construed to secure the just, speedy,and inexpensive determination of every action. (Asamended Feb. 28, 1966, eff. July 1, 1966.)

NOTES OF ADVISORY COMMITTEE ON RULES

This is the fundamental change necessary to effectunification of the civil and admiralty procedure. Justas the 1938 rules nbolished the distinction between ac-tions at law and stilts In equity, this change wouldabolish the distinction between civil actions and suits inadmiralty. See also Rule 81.

II. COMMENCEMENT OF ACTION; SERVICE OFPROCESS, PLEADINGS, MOTIONS, AND ORDERS

RULE 4.-PROCESS

(f) Territorial Limits of Effective Service.All process other than a subpoena may be served

anywhere within the territorial limits of the statein which the district court is held, and, when author-ized by a statute of the United States or by theserules, beyond the territorial limits of that state. Inaddition, persons who are brought in as parties pur-suant to Rule 14, or as additional parites to a pend-ing action or a counterclaim or cross-claim thereinpursuant to Rule 19, may be served in the mannerstated in paragraphs (1)-(6) of subdivision (d) ofthis rule at all places outside the state but withinthe United States that are not more than 100 milesfrom the place in whvich the action is commenced,

Page 2271

or to which it is assigned or transferred for trial;and persons required to respond to an order of com-mitment for civil contempt may be served at thesame places. A subpoena may be served withinthe territorial limits provided in Rule 45.

(As amended Feb. 28, 1966, eff. July 1, 1966.)

NOTES OF ADVISORY COMMTrrTEE ON RULES

The wording of Rule 4(f) is changed to accord withthe amendment of Rule 13(h) referring to Rule 19 asamended.

RULE 6.-TIME

(h) Enlargemen.When by these rules or by a notice given there-

under or by order of court an act is required orallowed to be done at or within a specified time,the court for cause shown may at any time in itsdiscretion (1) with or without motion or notice orderthe period enlarged if request therefor is made beforethe expiration of the period originally prescribedor as extended by a previous order, or (2) upon mo-tion made after the expiration of the specified pe-riod permit the act to be done where the failureto act was the result of excusable neglect; but itmay not extend the time for taking any action underRules 50(b), 52(b), 59(b), (d) and (e), and 60(b),except to the extent and under the conditions statedin them.

(c) Rescinded. Feb. 28, 1966, eff. July 1, 1966.

(As amended Feb. 28, 1966, eff. July 1, 1966; Dec. 4,1967, eff. July 1, 1968.)


1968 AMENDMENTThe amendment eliminates the references to Rule 73,

which is to be abrogated.P.L. 88-139, § 1, 77 Stat. 248, approved on October 10,

1963, amended 28 UB.C. § 138 to read as follows: .Thedistrict court shall not hold formal terms." Thus Rule6(c) is rendered unnecessary, and it is rescinded.

III. PLEADINGS AND MOTIONS

RULE 8.-GENERAL RULES OF PLEADING

(e) Pleading to be Concise and Direct; Consistency.* * * * *

(2) A party may set forth two or more statementsof a claim or defense alternately or hypothetically,either in one count or defense or in separate countsor defenses. When two or more statements aremade in the alternative and one of them if made in-dependently would be sufficient, the pleading is notmade insufficient by the insufficiency of one or moreof the alternative statements. A party may also

TITLE 28, APPENDIX.-RULES OF CIVIL PROCEDURE

state as many separate claims or defenses as he hasregardless of consistency and whether based on legal,equitable, or maritime grounds. All statementsshall be made subject to the obligations set forthin Rule 11.

(As amended Feb. 28, 1966, eft. July 1, 1966.)

NOTES OF ADvIsoRy COMMITTEE ON RULES

The change here is consistent with the broad purposesof unification.

RULE 9.-PLEADING SPECIAL MATTERS

(i) Admiralty and Maritime Claims.

A pleading or count setting forth a claim for re-lief within the admiralty and maritime jurisdictionthat is also within the jurisdiction of the districtcourt on some other ground may contain a state-ment identifying the claim as an admiralty or mari-time claim for the purposes of Rule 14(c), 26(a),38(e), 82 and the Supplemental Rules for CertainAdmiralty and Maritime Claims. If the claim iscognizable only in admiralty it is an admiralty ormaritime claim for those purposes whether so iden-tified or not. The amendment of a pleading to addor withdraw an identifying statement is governedby the principles of Rule 15. The reference in Title28, U.S.C. § 1292(a) (3), to admiralty cases shall beconstrued to mean admiralty and maritime claimswithin the meaning of this subdivision (h).

(As amended Feb. 28, 1966, eff. July 1, 1966; Dec. 4,1967, eft. July 1, 1968.)

NOTES OF' ADvisoRY COMMITTEE ON RULES1968 AMENDMENT

The amendment eliminates the reference to Rule 73which is to be abrogated and transfers to Rule 9(h) thesubstance of Subsection (h) of Rule 73 which preservedthe right to an interlocutory appeal in admiralty caseswhich is provided by 28 U.S.C. § 1292(a) (3).

1966 AMENDMENT

Certain distinctive features of the admiralty practicemust be preserved for what are now suits in admiralty.This raises the question: After unification, when asingle form of action is established, how will the counter-part of the present suit in admiralty be identifiable?In part the question is easily answered. Some claimsfor relief can only be suits in admiralty, either becausethe admiralty jurisdiction is exclusive or because no non-maritime ground of federal jurisdiction exists. Manyclaims, however, are cognizable by the district courtswhether asserted in admiralty or in a civil action, as-stuning the existence of a nonmaritime ground of Juris-diction. Thus at present the pleader has power to deter-mine procedural consequences by the way in which heexercises the classic privilege given by the saving-to-suit-ors clause (28 U.S.C. ; 1333) or by equivalent statutoryprovisions. For example, a longshoreman's claim forpersonal injuries suffered by reason of tile unseaworthi-ness of a vessel may be asserted in a suit in admiralty or,If diversity of citizenship exists, in a civil action. Oneof the important procedural consequences Is that in thecivil action either party may demand a jury trial, whilein the suit in admiralty there is no right to jury trialexcept as provided by statute.

It is no part of the purpose of unifiaction to injecta right to jury trial into those admirality cases in whichthat right Is not provided by statute. Similarly as willbe more specifically noted below, there is no dispositionto change the present law as to interlocutory appeals in

admiralty, or as to the venue of suits in admiralty; and,of course, there is no disposition to inject into the civilpractice as it now is the distinctively maritime remedies(maritime attachment and garnishment, actions in rem,possessory, petitory and partition actions and limitationof liability). The unified rules must therefore providesome device for preserving the present power of thepleader to determine whether these historically maritimeprocedures shall be applicable to his claim or not; thepleader must be afforded some means of designating hisclaim as the counterpart of the present suit in admiralty,where its character as such is not clear.

The problem Is different from the similar one concern-Ing the identification of claims that were formerly suitsin equity. While that problem is not free from complexi-ties, it is broadly true that the modern counterpart of thesuit in equity is distinguishable from the former actionat law by the character of the relief sought. This modeof identification is possible in only a limited categoryof admiralty cases. In large numbers of cases the reliefsought in admiralty is simple money damages, indistin-guishable from the remedy afforded by the common law.This is true, for example, in the case of the longshore-man's action for personal injuries stated above. Afterunification has abolished the distinction between civilactions and suits in admiralty, the complaint in such anaction would be almost completely ambiguous as to thepleader's intentions regarding tha procedure invoked.The allegation of diversity of citizenship might be re-garded as a clue indicating an intention to proceed asat present under the saving-to-suitors clause; but this,too, would be ambiguous if there were also reference to theadmiralty jurisdiction, and the pleader ought not be re-quired to forego mention of all available jurisdictionalgrounds.

Other methods of solving the problem were carefullyexplored, but the Advisory Committee concluded thatthe preferable solution is to allow the pleader who nowhas power to determine procedural consequences by filinga suit in admiralty to exercise that power under unifica-tion, for the limited instances in which proceduraldifferences will remain, by a simple statement in hispleading to the effect that the claim is an admiralty ormaritime claim.

The choice made by the pleader in identifying or infailing to identify his claim as an admiralty or maritimeclaim is not an irrevocable election. The rule providesthat the amendment of a pleading to add or withdraw anidentifying statement is subject to the principles of Rule15.

RULE 12.-DEFENSES AND OBJECTIONS-WIEN AND

How PRESENTED-By PLEADING OR MOTION-MO-TION FOR JUDGMENT ON TilE PLEADINGS

(b) How Presented.Every defense, in law or fact, to a claim for relief

in any pleading, whether a claim, counterclaim,cross-claim, or third-party claim, shall be assertedin the responsive pleading thereto if one is required,except that the following defenses may at the optionof the pleader be made by motion: (1) lack of juris-diction over the subject matter, (2) lack of jurisdic-tion over the person, (3) improper venue, (4) in-sufficiency of process, (5) insufficiency of service ofprocess, (6) failure to state a claim upon whichrelief can be granted, (7) failure to join a partyunder Rule 19. A motion making any of thesedefenses shall be made before pleading if a furtherpleading is permitted. No defense or objection iswaived by being joined with one or more other de-fenses or objections in a responsive pleading ormotion. If a pleading sets forth a claim for reliefto which the adverse party is not required to servea responsive pleading, he may assert at the trialany defense in law or fact to that claim for relief.

Rule 9 Page 2272


If, on a motion asserting the defense numbered (6)to dismiss for failure of the pleading to state aclaim upon which relief can be granted, mattersoutside the pleading are presented to and not ex-cluded by the court, the motion shall be treated asone for summary judgment and disposed of as pro-vided in Rule 56, and all parties shall be given rea-sonable opportunity to present all material madepertinent to such a motion by Rule 56.

(g) Consolidation of l)efense in Motion.A party who makes a motion under this rule

may join with it any other motions herein providedfor and then available to him. If a party makesa motion under this rule but omits therefrom anydefense or objection then available to him whichthis rule permits to be raised by motion, he shallnot thereafter make a motion based on the defenseor objection so omitted, except a motion as pro-vided in subdivision (h)(2) hereof on any of thegrounds there stated.

(h) Waiver or Preservation of C(eriain I)efenses.(1) A defense of lack of jurisdiction over the

person, improper venue, insufficiency of process, orinsufficiency of service of process is waived (A) ifomitted from a motion in the circumstances de-scribed in subdivision (g), or (B) if it is neithermade by motion under this rule nor included in aresponsive pleading or an amendment thereof per-mitted by Rule 15(a) to be made as a matter ofcourse.

(2) A defense of failure to state a claim upon whichrelief can be granted, a defense of failure to join a

party indispensable under Rule 19, and an objectionof failure to state a legal defense to a claim may bemade in any pleading permitted or ordered underRule 7(a), or by motion for judgment on the plead-ings or at the trial on the merits.

(3) Whenever it appears by suggestion of the par-ties or otherwise that the court lacks jurisdictionof the subject matter, the court shall dismiss theaction. (As amended Feb. 28, 1966, eff. July 1, 1966.)


Subdivision (b) (7). The terminology of this subdivi-sion is changed to accord w.th the amendment of Rule19. See the Advisory Committee's Note to Rule 19, asamended, especially the third paragraph therein beforethe caption "Subdivision (c)."

Subdivision (g). Subdivision (g) has forbidden a de-fendant who makes a preanswer motion under this rulefrom making a further motion presenting any defenseor objection which was available to him at the time hemade the first motion and which he could have included,but did not in fact include therein. Thus if the defend-ant moves before answer to dismiss the complaint forfailure to state a claim, he is barred from making a fur-ther motion presenting the defense of improper venue,if that defense was available to him when he made hisoriginal motion. Amended subdivision (g) is to the sameeffect. This required consolidation of defenses and ob-jections in a Rule 12 motion is salutary in that it worksagainst piecemeal consideration of a case. For excep-tions to the requirement of consolidation, see the lastclause of subdivision (g), referring to new subdivision(h) (2).

Subdivision (h). The question has arisen whether anomitted defense which cannot be made the basis of a sec-ond motion may nevertheless be pleaded in the answer.Subdivision (h) called for waiver of "0 * * defensesand objections which he Idefendantl does not pre-

sent * * * by motion * or, if lie has made nomotion, In his answer * . If the clause "if he hasmade no motion," was read literally, it seemed that theomitted defense was waived and could not be pleadedin the answer. On the other hand, the clause might beread as adding nothing of substance to the precedingwords; in that event it appeared that a defense was notwaived by reason of being omitted from the motion andmight be set up in the answer. The decisions were di-vided. Favoring waiver, see Keefe v. Derounian, 6 F.R.D.11 (N.D. Ill. 1046); Elbinger v. Precision Metal WorkersCorp., 18 F.R.D. 467 (E.D, Wis. 1956); see also Rensing v.Turner Aviation Corp., 166 F. Supp. 790 (N.D. Ill. 1958);P. Belersdorf & Co. v. Duke Laboratories, Inc., 10 F.R.D. 282(S.D.N.Y. 1950); Neset v. Chribtensen, 92 F. Supp. 78 (E.D.N.Y. 1950). Opposing waiver, see Phillips v. Baker, 121F. 2d 752 (9th Cir. 1941); Crum v. Graham, 32 F.H.D. 173(D. Mont. 1963) (regretfully following the Phillips case):see also Birnbaum v. Birrell, 9 F.R.D. 72 (S.D.N.Y. 1948);Johnson v. Joseph Schlitz Brewing Co., 33 F. Supp. 176(E.D. Tenn. 1940); cf. Carter v. American Bus Lines, Inc.,22 F.R.D. 323 (D. Neb. 1958).

Amend subdivision (hi (1) (A) eliminates the ambi-guity and states tlat certain specified defenses whichwere available to a party when lie made a preanswer mo-tion, but which he omitted from the motion, are waived.The specified defenses are lack of jurisdiction over theperson, improper venue, insufficiency of process, and in-sufficiency of service of process (see Rule 12(b) (2)-(5) ).A party who by motion invites the court to pass upon athreshold defense should bring forward all the spclfieddefenses lie then has and thus allow the court to do areasonably complete Job. The waiver reinforces thepolicy of subdivision (g) forbidding successive motions.

By amended subdivision (hi (1) (B), the specified de-fenses, even if not waived by the operation of (A), arewaived by the failure to raise them by a motion underRule 12 or in the responsive pleading or any amendmentthereof to which the party is entitled as a matter ofcourse. The specified defenses are of such a characterthat they should not be delayed and brought tip for thefirst time by means of an application to the court toamend the responsive pleading.

Since the language of the subdivisions is made clear,the party is put on fair notice of the effect of his actionsand omissions and can guard himself against unintendedwaiver. It is to be ILoted that while the defenses specifiedin subdivision (h) (1) are subject to waiver as there pro-vided, the more substantial defenses of failure to state aclaim upon which relief can be granted, failure to join aparty indispensable under Rule 19, and failure to state alegal defense to a claim (see Rule 12(b) (6), (7), (f) ), aswell as the defense of lack of jurisdiction over the subjectmatter (see Rule 12(b) (1)), are expressly preservedagainst waiver by amended subdivision (hI (2) and (3).

RULE 13.-COUNTERCLAIM AND CROSS-CLAIM

(h) Joinder of Additional Parties.

Persons other than those made parties to the

original action may be made parties to a counter-claim or cross-claim in accordance with the pro-

visions of Rules 19 and 20.



Rule 13(h), dealing with the joinder of additionalparties to a counterclaim or cross-rlaim, has partaken ofsome of the textual difficulties of Rule 19 on necessaryJoinder of parties. See Advisory Committee's Note toRule 19, as amended; cf. 3 Moore's Federal Practice, Par.13.39 (2d ed. 1963), and Supp. thereto; 1A Barron &Holtzoff, Federal Practice and Procedure § 399 (Wright ed.1960). Rule 13(h) has also been inadequate in failing tocall attention to the fact that a party pleading a counter-claim or cross-claim may join additional persons whenthe conditions for permissiva Joinder of parties underRule 20 are satisfied.

Page 2273 Rule 13


The amendment of Rule 13(h) supplies the latter omls-sion by expressly referring to Rule 20, as amended, andalso Incorporates by direct reference the revised criteriaand procedures of Rule 19, as amended. Hereafter, forthe purpose of determining who must or may be joined asadditional parties to a counterclaim or cross-claim, theparty pleading the claim Is to be regarded as a plaintiffand the additional parties as plaintiffs or defendants asthe c-ise may be, and amended Rules 19 and 20 are to beapplied in the usual fashion. See also Rules 13(a) (com-pulsory counterclaims) and 22 (Interpleader).

The amendment of Rule 13(h), like the amendment ofRule 19, does not attempt to regulate Federal jurisdictionor venue. See Rule 82. It should be noted, however, thatin some situations the decisional law has recognized"ancillary" Federal jurisdiction over counterclaims andcross-clains and "ancillary" venue as to parties to theseclaims.

RULE 14.-THIRD-PARTY PRACTICE

(a) When Defendant May Bring In Third Party.At any time after commencement of the action

a defending party, as a third-party plaintiff, maycause a summons and complaint to be served upona person not a party to the action who is or may beliable to him for all or part of the plaintiff's claimagainst him. The third-party plaintiff need notobtain leave to make the service if he files the third-party complaint not later than 10 days after heserves his original answer. Otherwise he must ob-tain leave on motion upon notice to all parties tothe action. The person served with the summonsand third-party complaint, hereinafter called thethird-party defendant, shall make his defenses tothe third-party plaintiff's claim as provided in Rule12 and his counterclaims against the third-partyplaintiff and cross-claims against other third-partydefendants as provided In Rule 13. The third-partydefendant may assert against the plaintiff any de-fenses which the third-party plaintiff has to theplaintiff's claim. The third-party defendant mayalso assert any claim against the plaintiff arisingout of the transaction or occurrence that Is the sub-ject matter of the plaintiff's claim against the third-party plaintiff. The plaintiff may assert any claimagainst. the third-party defendant arising out of thetransaction or occurrence that is the subject matterof the plaintiff's claim against the third-party plain-tiff, and the third-party defendant thereupon shallassert his defenses as provided In Rule 12 and hiscounter-claims and cross-claims as provided in Rule13. Any party may move to strike the third-partyclaim, or for its severance or separate trial. Athird-party defendant may proceed under this ruleagainst any person not a party to the action whois or may be liable to him for all or part of theclaim made in the action against the third-partydefendant. The third-party complaint, if withinthe admiralty and maritime jurisdiction, may be inrem against a vessel, cargo, or other property sub-Ject to admiralty or maritime process in rem, inwhich case references in this rule to the summonsinclude the warrant of arrest, and references to thethird-party plaintiff or defendant include, whereappropriate, the claimant of the property arrested.

(c) Admiralty and Maritime Claims.When a plaintiff asserts an admiralty or maritime

claim within the meaning of Rule 9(h), the de-

fendant or claimant, as a third-party plaintiff, maybring in a third-party defendant who may be whollyor partly liable, either to the plaintiff or to the third-party plaintiff, by way of remedy over, contribution,or otherwise on account of the same transaction,occurrence, or series of transactions or occurrences.In such a case the third-party plaintiff may alsodemand judgment against the third-party defendantin favor of the plaintiff, in which event the third-party defendant shall make his defenses to the claimof the plaintiff as well as to that of the third-partyplaintiff in the manner provided in Rule 12 and theaction shall proceed as if the plaintiff had com-menced it against the third-party defendant as wellas the third-party plaintiff. (As amended Feb. 28,1966, eff. July 1, 1966.)


Rule 14 was modeled on Admiralty Rule 50. An fi-portant feature of Admiralty Rule 56 was that it allowedImpleader not only of a person who might be liable tothe defendant by way of remedy over, but also of anyperson who might be liable tr. the plaintiff. The im-portance of this provision was that the defendant wasentitled to insist that the plaintiff proceed to judgmentagainst the third-party defendant. In certain cases thiswas a valuable implementation of a substantive right.For example, In a case of ship collision where a findingof mutual fault is possible, one shipowner, if sued alone,faces the prospect of an absolute judgment for the fullamount of the damage suffered by an Innocent thirdparty; but if he can implead the owner of the other ves-sel. and if mutual fault is found, the judgment againstthe original defendant will be in the first instance onlyfor a moiety of the damages; liability for the remainderwill be conditioned oil the plaintiff's inability to collectfrom the third-party defendant.

This feature was originally incorporated in Rule 14, butwas eliminated by the amendment of 1946, so that underthe amended rule a third party could not be impleadedon the basis that he might be liable to the plaintiff. Oneof the reasons for the an'endment was that the CivilRule, unlike the Admiralty Rule. did not require theplaintiff to go to judgment against the third-party de-fendant. Another reason was that where jurisdiction de-pended on diversity of citizenship the impleader of anadversary having the same citizenship as the plaintiffwas not considered possible.

Retention of the admiralty practice in those cases thatwill be counterparts of a. suit in admiralty is clearlydesirable.

RULE 15.-AMENDED AND SUPPLEMENTAL PLEADINGS

(c) Relation Back of Amendments.Whenever the claim or defense asserted in the

amended pleading arose out of the conduct, trans-action, or occurrence set forth or attempted to beset forth in the original pleading, the amendmentrelates back to the date of the original pleading.An amendment changing the party against whom aclaim is asserted relates back if the foregoing pro-vision is satisfied and, within the period providedby law for commencng the action against him, theparty to be brought in by amendment (1) has re-ceived such notice of the institution of the actionthat he will not be prejudiced in maintaining hisdefense on the merits, and (2) knew or should haveknown that, but for a mistake concerning the iden-tity of the proper party, the action would have beenbrought against him.

The delivery or mailing of process to the UnitedStates Attorney, or his designee, or the Attorney

Rule 14 Page 2274

TITLE 28, APPENDIX,-RULES OF CIVIL PROCEDURE

General of the United States, or an agency or officerwho would have been a proper defendant if named,satisfies the requirement of clauses (1) and (2)hereof with respect to the United States or anyagency or officer thereof to be brought into the ac-tion as a defendant.

(As amended Feb. 28, 1966, eft. July 1, 1966.1

NOTES OF ADvisoay COMMITrEE ON RULES

Rule 15(c) Is amplified to state more clearly when anamendment of a pleading changing the party againstwhom a claim is asserted (including an amendment tocorrect a misnomer or misdescription of a defendant)shall "relate back" to the date of the original pleading.

The problem has arisen most acutely In certain actionsby private parties against officers or agencies of theUnited States. Thus sn individual denied social securitybenefits by the Secretary of Health, Education, and Wel-fare may secure review of the decision by bringing a civilaction against that officer within sixty days. 42 U.S.C.§ 405(g) (Supp. IIr, 1962). In several recent cases theclaimants instituted timely action but mistakenly namedas defendant the United States, the Deparmient of HEW,the "Federal Security Administration" (a nonexistentagency), and a Secretary who had retired from the officenineteen (lays before. Discovering their mistakes, theclaimants moved to amend their complaints to name theproper defendant; by this time the statutory sixty-dayperiod had expired. The motions were denied on theground that the amendment "would amount to the com-mencement of a new proceeding and would not relateback In time so as to avoid the statutory provision * * *that suit be brought within sixty days * * * " Cohn v.Federal Security Adm., 199 F. Supp. 884, 885 (W.D.N.Y.1961); see also Cunningham v. United States, 199 F. Supp.541 (W.D. Mo. 1958); Hall v. Department of HEW, 199 F.Supp. 833 (S.D. Tex. 1960); Sandridge v. Folsom, Secre-tary of HEW, 200 F. Supp. 25 (M.D. Tenn 1959). [TheSecretary of Health, Education, and Welfare has approvedcertain ameliorative regulations under 42 U.S.C. § 405(g).See 29 Fed. Reg. 8209 (June 30, 1964); Jacoby, The Effectof Recent Changes in the Law of "Nonstatutory" JudicialReview, 53 Geo. L.J. 19, 42-43 (1964): tee also Simmonsv. United States Dept. HEW, 328 F. 2d 86 (3d Cir. 1964).]

Analysis in terms of "new proceeding" Is traceable toDavis v. L. L. Cohen & Co., 268 U.S. 638 (1925), andMellon v. Arkansas Land & Lumber Co., 275 U.S. 460(1928), but those cases antedate the adoption of theRules which import different criteria for determiningwhen an amendment is to "relate back". As lower courtshave continued to rely on the Davis and Mellon casesdespite the contrary Intent of the Rules, clarification ofRule 15(c) is considered advisable.

Relation back is intimately connected with the policy ofthe statute of limitations. The policy of the statute lim-Iting the time for stilt against the Secretary of HEW wouldnot have been offended by allowing relation back in thesituations described above. For the government was puton notice of the claim within the stated period-in theparticular instances, by means of the initial delivery ofprocess to a responsible government official (see Rule 4(d)(4) and (5). In these circumstances, characterization ofthe amendment as a new proceeding Is not responsive tothe realty, but Is merely question-begging; and to deny re-lation back Is to defeat unjustly the claimant's oppor-tunity to prove his case. See the full discussion by Byse,Suing the "Wrong" Defendant in Judicial Review of Fed-eral Administrative Action: Proposals for Reform, 77Harv. L. Rev. 40 (1963); see also Ill. Civ. P. Act § 46(4).

Much the same question arises in other types of actionsagainst the government (see Byse, supra, at 45 n. 15). Inactions between private parties, the problem of relationback of amendments changing defendants has generallybeen better handled by the courts, but incorrect criteriahave sometimes been applied, leading sporadically todoubtful results. See 1A Barron & Holtzoff, Federal Prac-tice & Procedure §451 (Wright ed. 1960); 1 Id. § 186(1960); 2 Id. § 543 (1961); 3 Moore's Federal Practice, par.15.15 (Cum. Supp. 1962); Annot., Change In Party After

Statute of Limitations Has Run, 8 A.L.R. 2d 6 (1949).Rule 15(c) has been amplified to provide a general solu-tion. An amendment changing the party against whoma claim Is asserted relates back if the amendment satisfiesthe usual condition of Rule 15(c) of "arising out of theconduct * * * set forth * * * In the original pleading."and if, within the applicable limitations period, the partybrought In by amendment, first, received such notice ofthe Institution of the action-the notice need not beformal-that he would not be prejudiced In defendingthe action, and, second, knew or should have known thatthe action would have been brought against him initiallyhad there not been a mistake concerning the identity ofthe proper party. Revised Rule 15(c) goes on to providespecifically in the government cases that the first andsecond requirements are satisfied when the governmenthas been notified In the manner there described (seeRule 4(d( (4) and (5). As applied to the governmentcases, revised Rule 15(c) further advances the objectivesof the 1961 amendment of Rule 25(d) (substitution ofpublic officers).

The relation back of amendments changing plaintiffsis not expressly treated in revised Rule 15(c) since theproblem is generally easier. Again the chief considera-tion of policy Is that of the statute of limitations, andthe attitude taken in revised Rule 15(c) toward changeof defendints extends by analogy to amendments chang-ing plaintiffs. Also relevant is the amendment of Rule17(a) (real party in interest). To avoid forfeitures ofjust claims, revised Rule 17(a) would provide that noaction shall be dismissed on the ground that it is notprosecuted in the name of the real party In Interest untila reasonable time has been allowed for correction of thedefect In the manner there stated.

IV. PARTIES

RULE 17.-PARTIES PLAINTIFF AND DEFENDANT;

CAPACITY

(a) Real Party in Interest.

Every action shall be prosecuted in the name ofthe real party in Interest. An executor, adminis-

trator, guardian, bailee, trustee of an express trust,a party with whom or in whose name a contract hasbeen made for the benefit of another, or a party

authorized by statute may sue In his own name

without joining with him the party for whose bene-fit the action is brought; and when a statute of the

United States so provides, an action for the use or

benefit of another shall be brought In the name of

the United States. No action shall be dismissed on

the ground that it is not prosecuted in the name of

the real party in interest until a reasonable time

has been allowed after objection for ratification of

commencement of the action by, or joinder or sub-

stitution of, the real party in interest; and such

ratification, joinder, or substitution shall have the

same effect as if the action had been commenced

in the name of the real party in Interest.



The minor change in the text of the rule is designedto make It clear that the specific instances enumeratedare not exceptions to, but illustrations of, the rule.These illustrations, of course, carry no negative implica-tion to the effect that there are not other Instances ofrecognition as the real party in interest of one whosestanding as such may be In doubt. The enumeration issimply of cases In which there might be substantial doubtas to the issue but for the specific enumeration. Thereare other potentially arguable cases that are not excludedby the enumeration. For example, the enumerationstates that the promisee In a contract for the benefit ofa third party may sue as real party in Interest; It does

Rule 17Page 2275


not say, because it is obvious, that the third-party bene-ficiary may sue (when the applicable law gives him thatright.)

The rule adds to the illustrative list of real parties Ininterest a bailee-meaning, of course, a bailee suing onbehalf of the bailor with respect to the property balled.(When the possessor of property other than the ownersues for an invasion of the possessory interest he is thereal party in interest.) The word "bailee" Is added pri-marily to preserve the admiralty practice whereby theowner of a vessel as ballee of the cargo, or the master ofthe vessel as bailee of both vessel and cargo, sues f'jrdamage to either property interest or both. But thereis no reason to limit such a provision to maritime situa-tions. The owner of a warehouse in which householdfurniture is stored is equally entitled to sue on behalf ofthe numerous owners of the furniture stored. Cf. Gulf.Oil Corp. v. Gilbert, 330 U.S. 501 (1947).

The provision that no action shall be dismissed on theground that it is not prosecuted in the name of the realparty in interest until a reasonable time has been allowed,after the objection has been raised, for ratification, sub-stitution, etc., is added simply in the interests of justice.In its origin the rule concerning the real party in interestwas permissive In purpose: it was designed to allow anassignee to sue in his own name. That having beenaccomplished, the modern function of the rule in itsnegative aspect is simply to protect the defendant againsta subsequent action by the party actually entitled torecover, and to insure generally that the judgment willhave its proper effect as res judicata.

This provision keeps pace with the law its it Is actuallydeveloping. Modern decisions are inclined to be lenientwhen an honest mistake has been made in choosing theparty in whose name the action is to be filed-in bothmaritime and nonmaritime cases. See Levinson v. Deu-pree, 345 U.S. 648 (1953); Link Aviation, Inc. v. Downs,325 F. 2d 613 (D.C. Cir. 1963). The provision should not bemisunderstood or distorted. It is intended to preventforfeiture when determination of the proper party to sueis dillcuit or when an understandable mistake has beenmade. It does not mean, for example, that, following anairplane crash in which all aboard were killed, an actionmay be filed in the name of John Doe (a fictitious per-son), as personal representative of Richard Roe (anotherfictitious person), in the hope that at a later time theattorney filing the action may substitute the real nameof the real personal representative of a real victim, andhave the benefit of suspension of the limitation period.It does not even mean, when an action is filed by thepersonal representative of John Smith, of Buffalo. in thegood faith belief that he was aboard the flight, that upondiscovery that Smith is alive and well, having missed thefatal flight, the representative of James Brown, of SanFrancisco, an actual victim, can be substituted to takeadvantage of the suspension of the limitation period. Itis, in cases of this sort, intended to insure against for-feiture and injustice-in short, to codify in broad termsthe salutary principle of Levinson v. Deupree, 345 U.S.648 (1953), and Link Aviation, Inc. v. Downs, 325 F. 2d 613(D.C. Cir. 1963).

RULE 18.-JOINDER OF CLAIMS AND REMEDIES

(a) Joinder of Claims.A party asserting a claim to relief as an original

claim, counterclaim, cross-claim, or third-party

claim, may join, either as independent 0: as alter-nate claims, as many claims, legal, equitable, or

maritime, as he has against an opposing party.


NOTES OF ADVISORY COMMITTEE ON RULESThe Rules "proceed upon the theory that no incon-

venience can result from the Joinder of any two or morematters in the pleadings, but only from trying two ormore matters together which have little or nothing incommon." Sunderland, The New Federal Rules, 45W.Va.L.Q. 3, 13 (1938); see Clark, Code Pleading 58 (2ded. 1947). Accordingly, Rule 18(a) has permitted a party

to plead multiple claims of all types against an opposingparty, subject to the court's power to direct an appro-priate procedure for trying the claims. See Rules 42(b),20(b), 21.

The liberal policy regarding Joinder of claims in thepleadings extends to cases with multiple parties. How-ever, the language used in the second sentence of Rule18(a)-"f the requirements of Rules 19 [necessary joinderof partiesl, 20 1permissive Joinder of parties1, and 22 [In-terpleaderl are satisfled"-has led some courts to infer thatthe rules regulating Joinder of parties are intended to carryback to Rule 18(a) and to impose some special limits onJoinder of claims in multiparty cases. In particular, Rule20(a) has been read as restricting the operation of Rule18(a) in certain situations in which a number of partieshave been permissively joined in an action. In FederalHousing Admr. v. Christianson, 26 F. Supp. 419 (D. Conn.1939), the indorsee of two notes sued the three comakersof one note, and sought to join in the action a count on asecond note which had been made by two of the three de-fendants. There was no doubt about the propriety of theJoinder of the three parties defendant, for a right to reliefwas being asserted against all three defendants which aroseout of a single "transaction" (the first note) and a ques-tion of fact or law "common" to all three defendantswould arise in the action. See the text of Rule 20(a).The court, however, refused to allow the Joinder of thecount on the second note. on the gruund that this rightto relief, assumed to arise from a distinct transaction,did not involve a question common to all the defendantsbut only two of them. For analysis of the Christiansoncase and other authorities, see 2 Barron & H1oltzoff, FederalPractice & Procedure, § 533.1 (Wright ed. 1961); 3 Moore'sFederal Practice, par. 18.04131 (2d ed. 1963).

If the court's view 's followed, it becomes necessary toenter at the pleading stage into speculations about theexact relation between the claim sought to be joinedagainst fewer than all the defendants properly joined inthe action, and the claims asserted against all the defend-ants. Cf. Wright, Joinder of Claims and Parties UnderModern Pleading Rules, 36 Minn.L. Rev. 580, 605-06(1952). Thus if it could be found in the Christiansonsituation that the claim on the second note arose out ofthe same transaction as the claim on the first or out ofa transaction forming part of a "series," and that anyquestion of fact or law with respect to the second notealso arose with regard to the first, it would be held thatthe claim on the second note could be joined in the com-plaint. See 2 Barron & Holtzoff, supra, at 199; see alsoId. at 198 n. 60.4; cf. 3 Moore's Federal Practice, supra,at 1811. Such pleading niceties provide a basis for de-laying and wasteful manpuver. It is more compatiblewith the design of the Rules to allow the claim to bejoined in the pleading, leaving the question of possibleseparate trial of that claim to be later decided. See 2Barron & Holtzoff, supra, § 533.1; Wright, supra, 36 Minn.L.Rev. at 604-11; Developments in the Law-MultipartyLitigation in the Federal Courts, 71 Harv. 874, 970-71(1958): Commentary, Relation Between Joinder of Partiesand Joinder of Claims, 5 F.R.Serv. 822 (1942). It is in-structive to note that the court In the Christianson case,while holding that the claim on the second note couldnot be joined as a matter of pleading, held open. thepossibility that both claims would later be consolidatedfor trial under Rule 42(a). See 26 F. Supp. 419.

Rule 18(a) is now amended not only to overcome theChristianson decision and similar authority, but also tostate clearly as a comprehensive proposition, that a partyasserting a claim (an original claim, counterclaim, cross-claim, or third-party claim) may join as many claims ashe has against an opposing party. See Noland Co., Inc.v. Graver Tank & Mfg. Co., 301 F. 2d 43, 49-51 (4th Cir.1962); but cf. C. W. Humphrey Co. v. Security Alum. Co.,31 F. R.D. 41 (E.D. Mich 1962) This permitted Joinderof claims is not affected by the fact that there are mul-tiple parties in the action. The Joinder of parties isgoverned by other rules operating independently.

It is emphasized that amended Rule 18(a) deals onlywith pleading. As already indicated, a claim properlyjoined as a matter of pleading need not be proceeded withtogether with the other claim if fairness or conveniencejustifies separate treatment.

Rule 18 Page 2276


Amended Rule 18(a), like the rule prior to amendment,does not purport to deal with questions of jurisdictionor venue which may arise with respect to claims properlyjoined as a matter of pleading. See Rule 82.

See also the amendment of Rule 20(a) and the Ad-visory Committee's Note thereto.

Free joinder of claims and remedies is one of the basicpurposes of unifncation of the admiralty and civil proce-dure. Tie amendment accordingly provides for the In-clusion in the rule of maritime claims as well as thosewhich are legal and equitable in character.

RULE 19.-JOINDER OF PERSONS NEEDED FOR JUST

ADJUDICATION

(a) 'ersons to be Joined if Feasible.

A person who is subject to service of process andwhose joinder will not deprive tl court of juris-

diction over the subject matter of the action shall

be joined as a party in the action if (1) in hisabsence complete relief cannot be accorded amongthose already parties, or (2) he claims an Interest

relating to the subject of the action and is so situ-

ated that the disposition of the action in his absence

may (I) as a practical matter Impair or impede hisability to protect that Interest or (it) leave any of the

persons already 'aarties subject to a substantial riskof incurring double, multiple, or otherwise incon-

sistent obligations by reason of his claimed interest.If he has not been so joined, the court shall order

that he be made a party. If he should join as aplaintiff but refuses to do so, he may be made a

defendant, or, in a proper case, an involuntary

plaintiff. If the joined party objects to venue and

his Joinder would render the venue of the action

improper, he shall be dismissed from the action.

(b) Determination by Court Whenever Joinder notFeasible.

If a person as described In subdivision (a) (1) -(2)hereof cannot be made a party, the court shall de-

termine whether in equity and good conscience the

action should proceed among the parties before it,

or should be dismissed, the absent person being thus

regarded as indispensable. The factors to be con-

sidered by the court include: first, to what extent ajudgment rendered in the person's absence might be

prejudicial to him or those already parties; second,

the extent to which, by protective provisions in thejudgment, by the shaping of relief, or other meas-

ures, the prejudice can be lessened or avoided; third,

whether a judgment rendered in the person's ab-sence will be adequate; fourth, whether the plaintiff

will have an adequate remedy if the action is dis-

missed for nonjoinder.

(c) Pleading Reasons for Nonjoinder.A pleading asserting a claim for relief shall state

the names, if known to the pleader, of any persons

as described in subdivision (a) (1)-2) hereof who

are not joined, and the reasons why they are notjoined.

(d) Exception of Class Actions.

This rule is subject to the provisions of Rule 23.(As amended Feb. 28, 1966, eff. July 1, 1966.)


General ConsiderationsWhenever feasible, the persons materially interested in

the subject of an action-see the more detailed descrip-tion of these persons In the discussion of new subdivl-

33-381 O-70-vl. 2- 47

sion (a) below-should be joined as parties so that theymay be heard and a complete disposition made, Whenthis comprehensive joinder cannot be accomplished-asituation which may be encountered in Federal courtsbecause of limitations on service of process, subjectmatter jurisdiction, and venue-the case should be ex-amined pragmatically and a choice made between thealternatives of proceeding with the action in the absenceof particular interested persons, and dismissing theaction.

Even if the court is mistaken in itz decision to proceedin the absence of an interested person, it does not bythat token deprive itself of the power to adjudicate asbetween the parties already before it through proper serv.,ice of process. But the court can make a legally bindingadjudication only between the parties actually joined Inthe action. It is true that an adjudication between theparties before the court may on occasion adversely affectthe absent person as a practical matter, or leave a partyexposed to a later Inconsistent, recovery by the absentperson. These are factors whica should be considered Indeciding whether the action should proceed, or shouldrather be dismissed; but they do not themselves negate thecourt's power to adjudicate as between the parties whohave been joined.

Defects in the Original RuleThe foregoing propositions were well understood in the

older equity practice, see Hazard, Indispensable Party:T''e Historical Origin of a Procedural Phantom, 61 Colum.L.Rev. 1254 (1961), and Rule 19 could be and often wasapplied in consonance with them. But experience showedthat the rule was defective in its phrasing and did notpoint clearly to the proper basis of decision.

Textual defects.-(1) The expression "persons * * *who ought to be parties if complete relief Is to beaccorded between those already parties," appearing inoriginal subdivision (b), was apparently intended as adescription of the persons whom It would be desirableto join In the action, all questions of feasibility of join-der being put to one side; but it was not adequatelydescriptive of those persons.

(2) Tie word "Indispensable," appearing in originalsubdivision (b), was apparently intended as an inclusivereference to the Interested persons in whose absence itwould be advisable, all factors having been considered,to dismiss the action. Yet the sentence Implied thatthere might be Intcrested persons, not "indispensable."in whose absence the action cught also to be dismissed.Further, it seemed at least superflcially plausible toequate the word "indispensable" with the expression"having a joint interest," appearing In subdivision (a).See United States v. Washington Inst. of Tech., Inc., 138F. 2d 25, 26 (3d Cir. 1943); cf. Chlidester v. City of Newark,162 F. 2d 598 (3d Cir. 1947). But persons holding aninterest technically "Joint" are not always so related toan action that it would be unwise to proceed withoutjoining all of them, whereas persons holding an interestnot technically "Joint" may have this relation to anaction. See Reed, Compulsory Joinder of Parties inCivil Actions, 55 Mlich. L. Rev 327, 356 ff., 483 (1957).

(3) The use of "indispensable" and "Joint interest" inthe context of original Rule 13 directed attention to thetechnical or abstract character of the rights or obliga-tions of the persons whose joinder was in question, andcorrespondingly distracted httention from the pragmaticconsiderations which should be controlling.

(4) The original rule, in dealing with the feasibility ofjoining a person as a party to the action, besides referringto whether the person was "subject to the jurisdictionof the court as to both service of process and venue,"spoke of whether the person could be made a party "with-out depriving the court of jurisdiction of the partiesbefore it." Tue second quoted expression used "Jurisdic-tion" in the sense of the competence of the court overthe subject matter of the action, and in this sense theexpression was apt. However, by a familiar confusion,the expression seems to have suggested to some that theabsence from the lawsuit of a person who was "indis-pensable" or "who ought to be [a] partly]" itself de-prived the court of the power to adjudicate as betweenthe parties already joined. See Samuel Goldwyn, Inc. v.United Artists Corp., 113 F. 2d 703, 707 (3d Cir. 1940);

Page 2277 Rule 19


McArthur v. Rosenbaum Co. of Pittsburgh, 180 F. 2d617, 621 (3d Cir. 1949); cf, Calcote v. Texas Pac. Coal &Oil Co., l7 F. 2d 216 (5th Cir. 1946), cert. denied, 329U.S. 782 (1946), noted In 56 Yale L.J. 1088 (1947); Reed,supra, 55 Mlich L. Rev. at 332-34.

Failure to point to correct basis of decision. Theoriginal rule did not state affirmatively what factors wererelevant in deciding whether the action should proceedor be dismissed when joinder of interested persons wasinfeasible. In some Instances courts did not undertaikethe relevant inquiry or were misled by the "jurisdiction"fallacy. In other instances there was undue preoccupa-tion with abstract classifications of rights or obligations,as against consideration of the particular consequencesof proceeding with the action and the ways by whichthese consequences might be ameliorated by the shapingof final relic) or other precautions.

Although these difficulties cannot be said to have beengeneral analysis of the cases showed that there was goodreason for attempting to strengthen the rule. The lit-erature also indicated how the rule should be reformed.See Reed, supra (discussion of the important case ofShields v. Barrow, 17 How. (58 U.S.) 130 (1854), appearsat 55 Mich. L. Rev., p. 340 ff.); Hazard, supra; N.Y.Temporary Comm. oil Courts. First Preliminary Report,Legis. Doc. 1957, No. 0(b). pp. 28, 233; N.Y. JudicialCouncil, Twelfth Ann. Rep., Legis. Doe. 1946, No. 17, p.163: Joint Comm. on Michigan Procedural Revision, FinalReport, Pt. III, p. 69 11960); Note, Indispensable Partiesits the Federal Courts, 65 Harv. L. Rev. 1050 (1952); De-velopments in the Law-Multiparty Litigation iu theFederal Courts, 71 Harv. L. Rev. 874, 879 (1958); Mich.Gen. Court Rules, R. 205 (effective Jan. 1, 1963); N.Y.Civ. Prac. Law & Rules, § 1001 (effective Sept. 1, 1963).

The Amended Rule

New subdivision (a) defines tile persons whose joinderIn the action is desirable. Clause (1) stresses the desira-bility of joining those persons iii whose absence thecourt would be obliged to grant partial or "hollow"rather than complete relief to the parties before thecourt. The interests that are being furthered here arenot only those of the parties, but also that of the publicin avoiding repeated lawsuits on the same essential sub-ject matter. Clause (2) (1) recognizes the importanceof protecting the person whose joinder is i questionagainst the pratical prejudice to him which may arisethrough a disposition o1 the action in his absence. Clause(2) (i1) recognizes the need for considering whether aparty may be left, after the adjudication, in a positionwhere a person not joined cain subject him to a double orotherwise inconsistent liability. See Reed, supra, 55 Mich.L. Rev. at 330, 338; Note, supra, 65 Harv. L. Rev. at1052-57; Developments in the Law, supra, 71 Harv. L.Rev. at 881-85.

The subdivision (a) definition of persons to be joinedis not couched in terms of the abstract nature of theirinterests-"Joint," "united," "separable," or the like. SeeN.Y. Temporary Comm. ois Courts, First Preliminary Re-port, supra; Developments in the Law, supra, at 880. Itshould be noted particularly, however, that the descrip-tion is not at variance with the settled authorities hold-ing that a tortfeasor with the usual "Joint-and-several"liability is merely a permissive party to all action againstanother with like liability. See 3 Moore's Federal Practice2153 (2d ed. 1963); 2 Barron & Holtzoff, Federal Practice& Procedure § 513.8 (Wright ed. 1961). Joinder of thesetortfeasors continues to be regulated by Rule 20; com-pare Rule 14 on third-party practice.

If a person as described iii subdivision (a) (1) (2) isamenable to service of process and his joinder would notdeprive the court of jurisdiction in the sense of com-petence over the action, he should be joined as a party;and If he has not been joined, the court should orderhim to be brought into the action. If a party joinedhas a valid objection to the venue and chooses to assertIt, he will be dismissed from the action.

Subdivision (b).-When a person as described in sub-division (a) (1)-(2) cannot be made a pirty, the courtis to determine whether in equity and good consciencethe action should proceed among the parties alreadybefore it, or should be dismissed. That this decision isto be made in the lighst of pragmatic considerations has

often been acknowledged by the courts. See Roos v.Texas Co., 23 F. 2d 171 (2d CI. 1927), cert. denied, 277U.S. 587 (1928); Niles-Bcment-Pond Co. v. Iron Moulders'Union, 254 U.S. 77, 80 (1920). The subdivision sets outfour relevant considerations drawn from the experiencerevealed in the decided cases. The factors are to a certainextent overlapping, and they are not intended to excludeother considerations which may be applicable in particularsituations.

The first factor brings in a consideration of what a judg-ament in the action would mean to the absentee. Wouldthe absentee be adversely affected in a practical sense,and if so, would the prejudice be immediate and serious,or remote and minor? The possible collaterial conse-quences of the judgment upon tile parties already joinedare also to be appraised. Would any party be exposedto a fresh action by tile absentee, and if so, how seriousis tile threat? See the elaborate discussion In Reed,supra; cf. A. L. Smith Iron Co. v. Dickson, 141 F. 2d 3(2d Cir 1944); Caldwell Mfg. Co. v, Unique Balance Co.,18 F R.D. 258 (S.D.N.Y. 1955).

The second factor calls attention to the measures bywhich prejudice may be averted or lessened. The "shap-ing of relief" is a familiar expedient to this end. See, e.g.,the award of money damages in lieu of specific relief wherethe latter might affect all absentee adversely. Ward v.Deavers, 203 F. 2d 72 (D C. Cir. 1953); Miller & Lux, Inc. v.Nickel, 141 F. Supp. 41 (N.D. Calif. 1956). On tile use of"protective provisions," see Rocs v. Texas Co., supra; At-wood v. Rhode Island Hosp. Trust Co., 275 Fed. 513, 519(1st Cir. 1921), cert. denied, 257 U.S. 661 (1922); cf. Stumpfv. Fidelity Gas Co., 294 F. 2d 886 (9th Cir. 1961); and thegeneral statement in National Licorice Co. v. Labor Board,309 U.S. 350, 363 (1940).

Sometimes the party is himself able to take measures toavoid prejudice. Thus it defendant faced with a prospectof a second suit by an absentee may be in a position tobring the latter into the action by defensive Interpleader.See Hudson v. Newell, 172 F. 2d 848, 852 mood., 176, F. 2d546 (5th Cir. 1949); Gauss v. Kirk, 198 F. 2d 83, 86 (D.C.Cir. 1952); Abel v. Brayton Flying Service, Inc., 248 F. 2d713, 716 (5th Cir. 1957) (suggestion of possibility of coun-terclain under Rule 13(h)); cf. Parker Rust-Proof Co. v.Western Union Tel. Co., 105 F. 2d 976 (2d Cir. 1939) cert.denied, 308 U.S. 597 (1939). See also the absentee maysometimes be able to avert prejudice to himself by volun-tarily appearing in the action or intervening on an ancil-lary basis. See Developments in the Law, supra, 71 Harv.L. Rev. at 882: Annot., Intervention or Subsequent Joinderof Parties as Affecting Jurisdiction of Federal Court Basedon Diversity of Citizenship, 134 A.L.R. 335 (1941); Johnsonv. Middleton, 175 F. 2d 535 (7th Cir. 1949) ; Kentucky Nat.Gas Corp. v. Duggins, 165 F, 2d 1011 (6th Cir. 1948); Mc-Comb v. McCormack, 159 F. 2d 219 (5th Cir. 1947). Thecourt should consider whether this, In turn, would imposeundue hardship on the absentee. (For the possibility ofthe court's informing an absentee of the pelzdency of theaction, see comment under subdivision (c) below.)

Tile third factor-whether an "adequate" judgment canbe rendered in the absence of a given person-calls atten-tion to the extent of the relief that can be accorded amongthe parties joined. It meshes with the other factors, espe-cially the "shaping of relief" mentioned under the secondfactor. Cf. Kroese v. General Steel Castings Corp., 179F. 2d 760 (3d Cir. 1949), cert. denied, 339 U.S. 983 (1950).

The fourth factor, looking to the practical effects of adismissal, indicates that the court should considerwhether there is any assurance that the plaintiff, if dis-missed, could sue effectively In another forum where betterjoinder would be possible. See Fitzgerald v. llaynes, 241F. 2d 417, 420 (3d Cir. 1957); Fouke v. Schenewerk, 197 F.2d. 234, 236 (5th Cir. 1952); cf. Warfield v. Marks, 190 F.2d. 178 (5th Cir. 1951).

The subdivision uses the word "Indispensable" only in aconclusory sense, that is, a person is "regarded as indis-pensable" when he cannot be made a party and, upon con-sideration of the factors above mention, it is determinedthat in his absence it would be preferable to dismiss theaction, rather than to retain it.

A person may be added as a party at any stage of the ac-tion on motion or on the court's initiative (see Rule 21);and a motion to dismiss, on the ground that a person hasnot been joined and justice requires that the action should

Rule 19 Page 2278


not proceed in his absence, may be made as late as the trialon the merits (see Rule 12(h) (2), as amended; cf. Rule12(b)(7),asamended). Ilowever, when the moving partyIs seeking dismissal in order to protect himself against alater sult by the absent person (subdivision (at (2) (Hi)),ana Is not seeking vicariously to protect the absent personagainst a prejudicial judgment (subdivision (a) (2) (1),his undue delay In making the motion can properly becounted against him its a reason for denying the motion.A joinder question should be decided with reasonablepromptness, but decision may properly be deferred if ade-quate Information is not available at the time. Thus therelationship of an absent person to the action, and thepractical effects of an adjudication upon him and others,may not be sufficiently revealed at the pleading stage: Insuch a case it would be appropriate to defer decision untilthe action was further advanced. Cf. Rule 12(d).

The amended rule makes no special provision for theproblem arising In suits against subordinate Federal offi-cials where it has often been set up as a defense that somesuperior officer must be joined. Frequently this defensehas been accompanied by or intermingled with defenses ofsovereign community or lack of consent of the UnitedStates to suit. So far as the issue of joinder can be iso-lated from the rest, the new subdivision seems betteradapted to handle It than the predecessor provision. Seethe discussion in Johnson v. Kirkland, 290 F. 2d 440, 446-47 (5th Cir. 1961) (stressing the practical orientation ofthe decisions); Shaughnessy v. Pedreiro, 349 U.S. 48, 54(1955). Recent legislation, P.L. 117-748, 76 Stat. 744, ap-proved October 5, 1962, adding §§ 1361, 1391(e) to Title 28,U.S.C., vests original jurisdiction in the District Courtsover actions In the nature of mandamus to compel cficialsof the United States to perform their legal duties, andextends the range of service of process and liberalizesvenue in these actions. If, then, It is found that a par-ticular official should be joined in the action, the legisla-tion will make It easy to bring him In.

Subdivision (c) parallels the predecessor subdivision (c)of Rule 19. In some situations it may be desirable to ad-vise a person who has not been joined of the fact that theaction is pending, and In particular cases the court in itsdiscretion may Itself convey this information by directinga letter or other Informal notice to the absentee.

Subdivision (d) repeats the exception contained in thefirst clause of the predecessor subdivision (a).

RULE 20.-PERMISSIVE JOINDER OF PARTIES

(a) Permissive Joinder.All persons may join in one action as plaintiffs if

they assert any right to relief jointly, severally, orin the alternative in respect of or arising out of thesame transaction, occurrence, or series of transac-tions or occurrences and if any question of law or factcommon to all these persons will arise in the action.All persons (and any vessel, cargo or other propertysubject to admiralty process in rem) may be joinedin one action as defendants if there Is assertedagainst them jointly, severally, or in the alternative,any right to relief in respect of or arising out of thesame transaction, occurrence, or series of transac-tions or occurrences and if any question of law or factcommon to all defendants will arise in the action. Aplaintiff or defendant need not be interested in ob-taining or defending against all the relief demanded.Judgment may be given for one or more of the plain-tiffs according to their respective rights to relief, andagainst one or more defendants according to theirrespective liabilities.



See the amendment of Rule 18(a) and the AdvisoryCommittee's Note thereto. It has been thought that alack of clarity in the antecedent of the word "them," asit appeared in two places in Rule 20(a), contributed to the

view, taken by some courts, that this rule limited thejoinder of claims in certain situations of permissive partyjoinder. Although the amendment of Rule 18(a) shouldmake clear that this view is untenable, It has been con-sidered advisable to amend Rule 20(a) to eliminate anyambiguity. See 2 Barron & Iloltzof, Federal Practice &Procedure 202 (Wright Ed. 1961).

A basic purpose of unilication of admiralty and civil pro-cedure is to reduce barriers to Joinder; hence the referenceto "any vessel," etc.

RULE 23.-CLAss ACTIONS

(a) Prerequisites io i Class Action.One or more members of a class may stIe or be sued

as representative parties on behalf of all only if (1)the class is so ntLaerous that joinder of all membersis impracticable, (2) there are questions of law orfact common to the class, (3) the claims or defensesof the representative parties are typical of the claimsor defenses of the class, and (4) the representativeparties will fairly and adequately protect the in-terests of the class.

(b) ('lass Actions Maintainable,An action may be maintained as a class action if

tile prerequisites of subdivision ta) are satisfied, andIn addition:

(1) the prosecution of separate actions by oragainst individual melnbers of the class would createa risk of

(A) inconsistent or val'ying adjudications with re-spect to individual members of the class which wouldestablish incompatible standards of conduct for theparty opposing the class, or

(B) adjudications with respect to individual mem-bers of the class which would as a practical matterbe dispositive of the interests of the other membersnot parties to the adjudications or substantially im-pair or impede their ability to protect their interests;or

(2) the party opposing the class has acted or re-fused to act on grounds generally applicable to tileclass, thereby making alppropriate final injunctive re-lief or corresponding declaratory relief with respectto the class as a whole; or

(3) the court finds that tle questions of law or factcommon to the members of the class predominateover any questions affecting only individual mem-bers, and that a class action is superior to otheravailable methods for the fair and efficient adjudica-tion of the controversy. The matters pertinent tothe findings include: tA) the interest of members ofthe class in individually controlling the prosecutionor defense of separate actions; fB the extent andnature of any litigation concerning the controversyalready commenced by or against members of theclass; (C) the desirability or undesirability of con-centrating the litigation of the claims in the partic-ular forum; tD) the difficulties likely to be encoun-tered in the management of a class action.

(c) l)etermination by Order Whether Class Actionto be Maintaim ed; Notice; Judgment; ActionsConducted Partially as Class Actions.

(1) As soon as practicable after tile commence-ment of an action brought as a class action, the courtshall determine by order whether it is to be so main-tained. An order under this subdivision may be con-ditional, and may be altered or amended before thedecision on the merits.

Page 227/9 Rule 23


(2) In any class action maintained under subdivi-sion (b) (3), the court shall direct to the membersof the class the best notice practicable under thecircumstances, including individual notice to allmembers who can be identified through reasonableeffort. The notice shall advise each member that(A) the court will exclude him from the class if heso requests by a specified date; (B) the judgment,whether favorable or not, will inctlde all memberswho do not request exclusion; and (C) any memberwho does not request exclusion may, if lie desires,enter an appearance through his counsel.

(3) The judgment in an action maintained as aclass action under subdivision (b) (1) or (b) (2),whether or not favorable to the class, shall includeand describe those whom the court finds to be mem-bers of the class. The judgment in an action main-tained as a class action under subdivision (b) (3),whether or not favorable to the class, shall includeand specify or describe those to whom the noticeprovided in subdivision (c) (2) was directed, andwho have not requested exclusion, and whom thecourt finds to be members of the class.

(4) When appropriate (A) an action may bebrought or maintained as a class action with respectto particular issues, or (B) a class may be dividedinto subclasses and each subclass treated as a clas ,and the provisions of this rule shall then be construedand applied accordingly.

(d) Orders in Conduct of Actions.In the conduct of actions to which this rule

applies, the court may make appropriate orders:(1) determining the course of proceedings or pre-scribing measures to prevent undue repetition orcomplication in the presentation of evidence or argu-ment; (2) requiring, for the protection of the mem-bers of the class or otherwise for the fair conductof the action, that notice be given in such manneras the court may direct to some or all of the mem-bers of any step in the action, or of the proposedextent of the judgment, or of the opportunity ofmembers to signify whether they consider the rep-resentation fair and adequate, to intervene and pre-sent claims or defenses, or otherwise to come into theaction; (3) imposing conditions on the representa-tive parties or on intervenors; (4) requiring that thepleadings be amended to eliminate therefrom allega-tions as to representation of absent persons, andthat the action proceed accordingly; (5) dealing withsimilar procedural matters. The orders may becombined with an order under Rule 16, and may bealtered or amended as may be desirable from timeto time.

(e) Dismissal or Compromise.A class action shall not be dismissed or compro-

mised without the approval of the court, and noticeof the proposed dismissal or compromise shall be

given to all members of the class in such manner asthe court directs. (As amended Feb. 28, 1966, eff.

July 1, 1966.)

NOTES OF ADVISORY COMMrrTEE ON RULES

Difficulties with the original rule. The categories ofclas actions in the original rule we, defined in termsof the abstract nature of the rights involved: the so-called "true" category was defined as involving "Joint,common, or secondary rights"; the "hybrid" category,

as involving "several" rights related to "specific prop-erty": th. "spurious" category, as Involving "several"rights affected by a common question and related to com-mon relief. It was thought that the definitions accuratelydescribed the situations amendable to the class-suit de-vice, and also would Indi,:ate the proper extent of thejudgment in each category, which would in turn help todetermine the res judicata effect of the ji'dgment Ifquestioned in a later action. Thus the judgments in"true" and "hybrid" class actions would extend to theclass (although in somewhat different ways); the Judg-ment in a "spurious" class action would extend only tothe parties including intervenors. See Moore, FederalRules of Civil Procedure: Some Problems Raised by thePreliminary Draft, 25 Geo. L.J. 551, 570-76 (1937).

In practice, the terms "Joint," "common," etc., whichwere used as the basis of the Rule 23 classification provedobscure and uncertain. Set Chaffee, Some Problems ofEquity 245-46, 256-57 (1950); Kalven & Rosenfield, TheContemporary Function of the Class Suit, 8 U. of Chi. L.Rev. 084, 707 & ]i. 73 (1941); Keeffe, Levy & Donovan, LeeDefeats Ben Hur, 33 Corn. L.Q. 327, 329-36 (1948); De-velopments In the Law: Multiparty Litigation in theFederal Courts, 71 Harv. L. Rev. 874, 931 (1958); AdvisoryCommittee's Note to Rule 19, as amended. The courtshad considerable difficulty with these terms. See, e.g.,Gullo v. Veterans' Coop. 11. Assn., 13 F.R.D. 11 (D.D.C.1952); Shipley v. Pittsburgh & L. E. R. Co., 70 F. Supp.870 (W.D. Pa. 1947); Deckert v. Independence SharesCorp., 27 1.'. Supp. 763 (E.D. Pa. 1939), rev'd, 108 F. 2d 51(3d Cir. 1939), rev'd, 311 U.S. 282 (1940), on remand, 39F. Supp. 592 (E.D. Pa. 1941), rev'd sub nom. Pennsyl-vania Co. for Ins. on Lives v. Deckert, 123 F. 2d 979 (3dCir. 1941) (see Chafee. supra, at 264-65).

Nor did the rule provide an adequate guide to theproper extent of the judgments in class actions. First.we find instances of the courts classifying actions as"true" or intimating that the judgments would be de-cisive for the class where these results seemed appro-priate but were reached by dint of depriving the word"several" of coherent meaning. See, e.g., System Fed-eration No. 91 v. Reed, 180 F. 2d 991 (0th Cir. 1950);Wilson v. City of Paducah, 100 F. Supp. 116 (W.D. Ky.1951); Citizens Banking Co. v. Monticello State Bank,143 F. 2d 261 (8th Cir. 1944); Redmond v. CommerceTrust Co., 144 F. 2d 140 (8th Cir. 1944), cert. denied, 323U.S. 770 (1944); United States v. American Optical Co.,97 F. Supp. 66 (N.D. Ill. 1951): (National Hairdressers'& C. Assn. v. Philad Co., 34 F. Supp. 264 (D. Del 1940);41 F. Supp. 701 (D. Del. 1940), aff'd mem,, 129 F. 2d 1020(3d Cir. 1942). Second, we find cases classified by thecourts as "spurious" in which, on a realistic view, it wouldseem fitting for th- judgments to extend to the class.See, e.g., Knapp v. Bankers Sec. Corp., 17 F.R.D. 245(E.D. Pa. 1954); aff'd 230 F. 2d 717 (3d Cir. 1956); Gleseckev. Denver Tramway Corp., 81 F. Supp. 957 (D. Del. 1949);York v. Guaranty Trust Co., 143 F. 2d 503 (2d Cir. 1944),rev'd on grounds not here relevant, 326 U.S. 90 (1945)(see Chafee, supra, at 208); cf. Webster Eisenlohr, Inc.v. Kalodner, 145 F. 2d 316, 320 (3d Cir. 1044), cert. de-nied, 325 U.S. 807 (1945). But cf. the early decisions,Duke of Bedford v. Ellis [19011, A.C. 1; Sheffield Water-works v. Yeomans, L.R. 2 Ch. App. 8 (1866); Brown v.Vermuden, 1 Ch. Cas. 272, 22 Eng. Rep. 796 (1676).

The "spurious" action envisaged by original Rule 23was in any event an anomaly because, although denomi-nated a "class" action and pleaded as such, It was sup-posed not to adjudicate the rights or liabilities of anyperson not a party. It was believed to be an advantageof the "spurious" category that it would invite decisionsthat a member of the "class" could, like a member ofthe class in a "true" or "hybrid" action, Intervene on anancillary basis without being required to show an In-

dependent ba'is of Federal jurisdiction, and have thebenefit of the date of the commencement of the actionfor purposes of the statute of limitations. See 3 Moore'sFederal Practice, pars. 23.10[1l, 23.12 (2d ed. 1963).These results were attained in some instances but not inothers. On the statute of limitations, see Union Carbide

& Carbon Corp. v. Nisley, 3CJ F. 2d 501 (10th Cir. 1961),pet. cert. dism., 371 U.S. 801 (1963); but cf. P. W. Husserl,Inc. v. Newman, 25 F.R.D. 264 (S.D.N.Y. 1960); Athas v.

Rule 23 Page 2280


Day, 161 F. Supp. 916 (D. Colo. 1958). On ancillary in-tervention, see Amen v. Black, 234 F. 2d 12 (10th Cir.1950), cert. granted, 352 U.S. 888 (1950), diem. on stip.,355 U.S. 600 (1958); but. cf. Wagner v. Kemper, 13 F.R.D.128 (W.D. Mo. 1952). The results, however, call hardlydepend upon the mere appearance of a "spurious" cate-gory In the rule; they should turn no more basic con-siderations. See discussion of subdivision (c) (1) below.

Finally, the original rule did not squarely address itselfto the question of the measures that might be takenduring the course of the action to assure procedural fair-ness, particularly giving notice to members of the class,which may in turn be related in some instances to theextension of the judgment to the class. See Chafee,supra, at 230-31; Keeffe, Levy & Donovan, supra; De-velopments in the Law, supra, 71 Harv. L. Rev. at 937-38;Note, Binding Effect of Class Actions, 67 Harv. L. Rev.1059, 1062-65 (1954); Note, Federal Class Actions: ASuggested Revision of Rule 23, 46 Colum. L. Rev. 818,833-30 (1940); Mich. Gen. Court R. 208.4 (effective Jan. 1,1963); Idaho R. Civ. P. 23(d); Minn. R. Civ. P. 23.04;N. Dak. R. Civ. P. 23(d).

The amended rule describes in more practical termsthe occasions for maintaining class actions; providesthat all class actions maintained to the end as such willresult in judgments Including those whom the court findsto be members of the class, whether or not the judgmentIs favorable to the class; and refers to the measures whichcan be taken to assure the fair conduct of these actions.

Subdivision (a) states the prerequisites for maintain-ing any class action in terms of the numerousness of theclass making joinder of the members impracticable, theexistence of questions common to the class, and the de-sired qualifications of the representative parties. SeeWeinstein, Revision of Procedure; Some Problems in ClassActions, 9 Buffalo L. Rev. 433, 458-59 (1960); 2 Barron &Holtzoff, Federal Practice & Procedure § 562, at 265, § 572,at 351-52 (Wright ed. 1901). These are necessary butnot sufficient conditions for a class action. See, e.g.,Giordano v. Radio Corp. of Am., 183 F. 2d 558, 560 (3dCir. 1950); Zachman v. Erwin, 186 F. Supp. 681 (S. D. Tex.1959); Balm & Blank, Inc. v. Warren Connelly Co., Inc.,19 F.R.D. 108 (S.D.N.Y. 1950). Subdivision (b) describesthe additional elements which in varying situationsjustify the use of a class action.

Subdivision (b) (1). The difficulties which would belikely to arise if resort were had to separate actions byor against the individual members of the class here fur-nish the reasons for, and the principal key to, the pro-priety and value of utilizing the class-action device. Theconsiderations stated under clauses (A) and (B) arecomparable to certain of the elements which define thepersons whose joinder in al action is desirable as statedin Rule 19(a), as amended. See amended Rule 19(a) (2)(i and (1i), and the Advisory Committee's Note thereto;Hazard, Indispensable Party; The Historical Origin of aProcedural Phantom, 61 Colum. L. Rev, 1254, 1259-60(1961); cf. 3 Moore, supra. par. 23.08, at 3435.

Clause (A): One person may have rights against, orbe under duties toward, numerous persons constitutinga class, and be so pc-ttloned that conflicting or varyingadjudications in lawsuits with individual members of theclass might establish incompatible standards to governhis conduct. The class action device can be used effec-tively to obviate the actual or virtual dilemma whichwould thus confront the party opposing the class. Thematter has been stated thus: "The felt necessity for aclass action Is greatest when the courts are called uponto order or sanction the alteration of the status quo incircumstances such that a large number of persons are ina position to call on a single person to alter the statusquo, or to complain if it is altered, and the possibilityexists that Ithel actor might be called upon to act ininconsistent ways." Loulsell & Hazard, Pleading and Pro-cedure; State and Federal 719 (1962); see Supreme Tribeof Ben-Hur v. Cauble, 255 U.S. 356, 36-67 (1921). ToIllustrate: Separate actions by individuals against a mu-nicipality to declare a bond issue invalid or condition orlimit It, to prevent or limit the making of a particularappropriation or to compel or invalidate an assessment,might create a risk of inconsistent or varying determina-tions. In the same way, individual litigations of the

rights and duties of riparian owners, or of landowners'rights and duties respecting a claimed nuisance, couldcreate a possibility of incompatible adjudications. Ac-tions by or against a class provide a ready and fair meansof achieving unitary adjudication. See Maricopa CountyMun. Water Con. Dist. v. Looney, 219 F. 2d 529 (9th Cir.1955); Rank v. Krug, 142 F. Supp. 1, 154-59 (S.D. Calif.1956), on app., State of California v. Rank, 293 F. 2d 340,348 (9th Cir. 1961); Gart v. Cole, 263 F. 2d 244 (2d Cir.1959), cert. denied 359 U.S. 978 (1959); cf. Martinez v.Maverick Cty. Water Con. & Imp. Dist., 219 F. 2d 666(5th Cir. 1955); 3 Moore, supra, par. 23.11[2), at 3458-59.

Clause (B) : This clause takes In situations where thejudgment in a nonclass action by or against an indi-vidual member of the class, while not technically con-cluding the other members, might do so as a practicalmatter. The vice of an individual action would lie in thefact that the other members of the class, thus practicallyconcluded, would have had no representation in the law-suit. In an action by policy holders against a fraternalbenefit association attacking a financial reorganization ofthe society, it would hardly have been practical, if indeedit would have been possible, to confine the effects of avalidation of the reorganization to the individual plain-tiffs. Consequently a class action was called for withadequate representation of all members of the class. SeeSupreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356 (1921);Waybright v. Columbian Mut. Life Ins. Co., 30 F. Supp.885 (W.D. Tenn. 1939); cf. Smith v. Swoinste.!t, 16 How.157 U.S.) 288 (1853). For much the same reas)n actionsby shareholders to compel the declaration of a dividend,the proper recognition and handling of redemption orpre-emption rights, or the like (or actions by the cor-poration for corresponding declarations of rights), shouldordinarily be conducted as class actions, although thematter has been much obscured by the insistence thateach shareholder has an individual claim. See Knapp v.Bankers Securities Corp., 17 F.R.D. 245 (E.D. Pa. 1954),aff'd, 230 F. 2d 717 (3d Cir. 19561; Glesecke v. DenverTramway Corp., 81 F. Supp. 957 (D. Del. 1949); Zahn v.Transamerica Corp., 162 F. 2d 36 (3d Cir. 1947); Speedv. Transamerica Corp., 100 F. Supp. 461 (D. Del. 1951);Sobel v. Whittier Corp., 95 F. Supp. 643 (E.D. Mich. 1951),app. dism., 195 F. 2d 361 (0th Cir. 1952); Goldberg v. Whit-tier Corp., 111 F. Supp. 382 (E.D. Mich. 1953); Dann v.Studebaker-Packard Corp., 288 F. 2d 201 (0th Cir. 1901);Edgerton v. Armour & Co., 94 F. Supp. 549 (S.D. Calif.1950); Ames v. Mengel Co., 190 F. 2d 344 (2d Cir. 1051).(These shareholders' actions are to be distinguished fromderivative actions by shareholders dealt with in newRule 23.1). The same reasoning applies to an actionwhich charges a breach of trust by an indenture trusteeor other fiduciary similarly affecting the members of alarge class of security holders or other benefic'aries, andwhich requires an accounting or like measures to restorethe subject of the trust. See Boesenberg v. ChicagoT. & T. Co., 128 F. 2d 245 (7th Cir. 1942); Citizens Bank-ing Co. v. Monticello State Bank, 143 F. 2d 261 (8th Cir.1944); Redmond v. Cormnerce Trust Co., 144 F. 2d 140(8th Cir. 1944), cert. denied, 323 U.S. 776 (1944); cf.York v. Guaranty Trust Co., 143 F. 2d 503 (2d Cir. 1944),rev'd on grounds not here relevant, 326 U.S. 99 (1945).

In various situations an adjudication as to one or moremembers of the class will necessarily or probably haveail adverse practical effect on the interests of othermembers who should therefore be represented in thelawsuit. This is plainly tile case when claims are madeby numerous persons against a fund insufficient to satisfyall claims. A class action by or against representativemembers to settle the validity of the clahisl as a whole.or in groups, followed by separate proof of the amount ofeach valid claim and proportionate distribution of thefund, meets tile problem. Cf. Dickinson v. Burnham, 197F. 2d 973 (2d Cir. 1952), cert. denied, 344 U.S. 875 (1952);3 Moore, supra, at par. 23.09. The same reasoning ap-plies to an action by a creditor to set aside a fraudulentconveyance by the debtor and to appropriate the prop-erty to his claim, when the debtor's assets are insufficientto pay all creditors' claims. See Hefferman v. Bennett &Armour, 110 Cal. App. 2d 564, 243 P. 2d 846 (1952); cf.City & County of San Francisco v. Market Street ny., 95

Rule 23Page 2281


Cal. App. 2d 648, 213 P. 2d 780 (1950). Similar prob-lems, however, can arise in the absence of a fund eitherpresent or potential. A negative or mandatory injunc-tion secured by one of a numerous class may disable theopposing party from performing claimed duties towardthe other members of the class or materially affect hisability to do so. An adjudication as to movie "clearancesand runs" nominally affecting only one exhibitor wouldoften have practical effects on all the exhibitors in thesame territorial area. Cf. United States v. ParamountPictures, Inc., 66 F. Supp. 323, 341-46 (S.D.N.Y. 1946);334 U.S. 131, 144-48 (1948). Assuming a sufficiently nu-merous class of exhibitors, a class action would be ad-visable. (Here representation of subclasses of exhibitorscould become necessary; see subdivision (c) (3) (B).)

Subdivision (b) (2). This subdivision is intended toreach situations where a party has taken action or re-fused to take action with respect to a class, and finalrelief of an Injunctive nature or of a correspondingdeclaratory nature, settling the legality of the behaviorwith respect to the class as a whole, is appropriate.Declaratory relief "corresponds" to injunctive relief whenas a practical matter it affords injunctive relief or servesas a basis for later lnjunctl,'. relief. The subdivisiondoes not extend to cases in whilca the appropriate finalrelief relates exclusively or predominantly to money dam-ages. Action or inaction is directed to a class within themeaning of this subdivision even If it has taken effector is threatened only as to one or a few members of theclass, provided it is based on grounds which have generalapplication to the class.

Illustrative are various actions in the civil-rightsfield where a party Is charged with discriminating unlaw-fully against a class, usually one whose members are In-capable of specific enumeration. See Potts v. Flax, 313F. 2d 284 (5th Cir. 1963); Bailey v. Patterson, 323 F. 2d201 (5th Cir. 1963), cert. denied, 377 U.S. 972 (1964);Brunson v. Board of Trustees of School District No. 1,Clarendon City, S.C.. 311 F. 2d 107 (4th Cir. 1962), cert.denied, 373 U.S. 933 (1963); Green v. School Bd. of Roa-noke, Va., 304 F. 2d 118 (4th Cir. 1962); Orleans ParishSchool Bd. v. Bush, 242 F. 2d 156 (5th Cr. 1957), cert.denied, 354 U.S. 921 (1957); Mannings v. Board of PublicInst. of Hlllsborugh County, Fla., 277 F. 2d 370 (5th Cr.1060); Northcross v. Board of Ed. of City of Memphis,302 F. 2d 818 (6th Cir. 1962), cert. denied 370 U.S. 944(1962); Frasier v. Board uf Trustees of Univ. of N.C., 134F. Supp. 589 (M.D.N.C. 1955, 3-judge court), aff'd, 350U.S. 979 (1956). Subdivision (b) (2) Is not limited tocivil-rights cases. Thus an action looking to specific ordeclaratory relief could be brought by a numerous classof purchasers, say retailers of a given description, againsta seller alleged to have undertaken to sell to that classat prices higher than those set for other puchasers, sayretailers of another lescription, when the applicable lawforbids such a pricing differential. So also a patenteeof a machine, charged with selling or licensing the ma-chine on condition that purchasers or licensees alsopurchase or obtain licenses to use an ancillary unpatent-ed machine, could be sued on a class basis by a numerousgroup of purchasers or licensees, or by a numerous groupof competing sellers or licensors of the unpatented ma-chine, to test the legality of the "tying" condition.

Subdivision (b) (3). In the situations to which thissubdivision relates, class-action treatment is not asclearly called for as in those described above, but itmay nevertheless be convenient end desirable dependingupon the particular facts. Subdivision (b) (3) encom-passes those cases in which a class action would achieveeconomies of time, effort, and expense, and promote,uniformity of decision as to persons similarly situated,without sacrificing procedural fairness or bringing aboutother undesirable results. Cf. Chafee, supra, at 201.

The court is required to find, as a condition of hold-Ing that a class action may be maintained under thissubdivision, that the questions common to the class pre-dominate over the questions affecting individual mem-bers. It is only where this predominance exists thateconomies can be achieved by means of the class-actiondevice. In this view, a fraud perpetrated on numerouspersons by the use of similar misrepresentations may bean appealing situation for a class action, and it may re-

main so despite the need, if liability Is found, for separatedetermination of the damages suffered by individualswithin the class. On the other hand, although havingsome common core, a fraud case may be unsuited fortreatment as a class action if there was material varia-tion in the representation made or In the kinds or degreesof reliance by the persons to whom they were addressed.See Oppenheimer v. F. J. Young & Co., Inc., 144 F. 2d 387(2d Cir. 1944); Miller v. National City Bank of N.Y., 166F. 2d 723 (2d Cir. 1948); and for like problems in othercontexts, see Hughes v. Encyclopaedia Brittanica, 199 F. 2d295 (7th Cir. 1952); Sturgeon v. Great Lakes Steel Corp.,143 P. 2d 819 (6th Cir. 1944). A "mass accident" result-ing in injuries to nunerous persons is ordinarily not ap-propriate for a class action because of the likelihood thatsignificant questions, not only of damages but of liabilityand defenses of liability, would be present, affecting theidividuals in different ways. In these circumstances anaction conducted nominally as a class action would de-generate in practice into multiple lawsuits separatelytried. See Pennsylvania R.R, v. United States, 111 F.Supp. 80 (D.N.J. 1953); cf. Weinstein, supra, 9 BuffaloL.Rev. at 469. Private damage claims by numerous Indi-viduals arising out of concerted antitrust violations mayor may not involve predominating common questions.See Union Carbide & Carbon Corp. v. Nisley, 300 F. 2d 561(10th Cir. 1961), pet cert, dism., 371 U.S. 801 (1063); cf.Weeks v. Bareco Oil Co., 125 F. 2d 84 (7th Cir. 1941);Kainz v. Anheuser-Busch, Inc., 194 F. 2d 737 (7th Cir.1952); Ress v. Andorson, Clayton & Co., 20 F.R.D. 466 (S.D. Calif. 1957).

That common questions predominate is not itself suffi-cdent to justify a class action under subdivision (b) (3),for another method of handling the litigious situationmay be available which has greater practical advantages.Thus one or more actions agreed to by the parties astest or model actions may be preferable to a class action;or it may prove feasible and preferable to consolidateactions. Cf. Weinstein, supra, 9 Buffalo L. Rev. at 438-54.Even when a number of separate actions ale proceedingsimultaneously, experience shows that the burdens on theparties and the courts can sometimes be reduced byarrangements for avoiding repetitious discovery or thelike. Currently the Coordinating Committee on Multi-ple Litigation in the United States District Courts (asubcommittee of the Committee on Trial Practice andTechnique of the Judicial Conference of the UnitedStates) is charged with developing methods for expedit-ing such massive litigation. To reinforce the point thatthe court with the aid of the parties ought to assess therelative advantages of alternative procedures for han-dling the total controversy, subdivision (b) 13) requires,as a further condition of maintaining the class action, thatthe court shall find that that procedure is "superior" tothe others in the particular circumstances.

Factors (A)-(D) are listed, non-exhaustively, as perti-nent to the findings. The court is to consider tile in-terests of individual members of the class in controllingtheir own litigations and carrying them on as they seefit. See Weeks v. Bareco Oil Co.. 125 F. 2d 84, 88-90,93-94 (7th Cir. 1941) (anti-trust action); see also Pent-land v. Dravo Corp., 152 F. 2d 851 (3d Cir. 1945), andChaffee, supra, at 273-75, regarding policy of Fair LaborStandards Act 0l 1938, § 16(b), 29 U.S.C. § 216(b), priorto amendment by Portal-to-Portal Act of 1947, § 5(a).

[The present provisions of 29 U.S.C. § 210(b) are not in-tended to be affected by Rule 23, as amended.]

In this connection the court should Inform itself ofany litigation actually pending by or against the indi-viduals. The interests of individuals in conducting sep-arate lawsuits may be so strong as to call for denial of aclass action. On the other hand, these interests may betheoretic rather than practical; the clnis may have a highdegree of cohesion and prosecution of he action throughrepresentatives wo.old be quite unr",)jectionab,. or theamounts at stake fo individuals may be so small thatseparate suits would be impracticable. The burdenthat separate suits would impose on the party opposingthe class, or upon the court calendars, may also fairli,be considered. (See the discussion, under subdivision kc)(2) below, of the right of members to be exclude': fromthe class upon their request.)

Rule 23 Page 2282

TITLE 28, APPENDIX-RULES OF CIVIL PROCEDURE

Also pertinent Is the question of the desirability of con-centrating the trial of the claims in the particular forumby means of a class action, in contrast to allowing theclaims to be litigated separately In forums to which theywould ordinarily be brought. Finally, the court shouldconsider the problems of management which are likelyto arise in the conduct of a class action.

Subdivision (c) (1). In order to give clear definitionto the action, this provision requires the court to deter-mine, as early in the proceedings as may be practicable,whether an action brought as a class action is to be somaintained. The determination depends in each case onsatisfaction of the terms of subdivision (a) and the rele-vant provisions of subdivision (b).

An order embodying a determination can be condition-al; the court may rule, for example, that a class actionmay be maintained only if the representation is Improvedthrough Intervention of additional parties of a statedtype. A determination once made can be altered oramended before the decision on the merits if, upon fullerdevelopment of the facts, the original determination ap-pears unsound. A negative determination means thatthe action should be stripped of its character as a classaction. See subdivision (d) (4). Although an actionthus becomes a nonclass action, the court may still berecepti':e to Interventions before the decision on themerits so that the litigation may cover as many interestsas can be conveniently handled; the questions whetherthe intervenors in the nonclass action shall be permittedto cltim "ancillary" jurisdiction or the benefit of thedate of the commencement of the action for purposesof the statute of limitations are to be decl'.id by refer.ence to the laws governing Jurisdiction and limitations asthey apply in particular contexts.

Whether the court should require notice to be givento members of the class of Its intention to make a deter-mination, or of the order embodying it, is left to thecourt's discretion under subdivision (d) (2).

Subdivision (c) (2) makes special provision for classactions maintained under subdivision (b) (3). Asnoted in the discussion of the latter subdivision, theinterests of the individuals In pursuing their own litiga-tions may be so strong here as to warrant denial of aclass action altogether. Even when a class action Ismaintained under subdivision (b) (3), thl; individualinterest is respected. Thus the court Is required to di-rect notice to the members of the class of the right ofeach member to be excluded from the class upon hisrequest. A member who does not request exclusion may,if he wishes, enter an appearance In the action throughhis counsel; whether or not he does so, the judgment inthe action will embrace him.

The notice, seting forth the alternatives open to themembers of ne class, is to be the best practicable underthe circumstances, and shall include individual noticeto the members who can be identified through reason-able effort. (For further discussion of this notice, seethe statement under subdivision (d) (2) below.)

Subdivision (c) (3). The judgment in a class actionmaintained as such to the end wil' unbrace the class,that Is, in a clsss action under subuivision (b) (1) or(b) (2), those found by the court to be class members;in a class action under subdivision (b) (3), those towhom the notice prescribed by subdivision (c) (2) wasdirected, excepting those who requested exclusion or whoare ultimately found by the court not to be members ofthe class. The Judgment has this scope whether It isfavorable or unfavorable to the class. In a (b) (1) or(b) (2) action the judgment "describes" the members ofthe class, but need not specify the individual members;in a (b) (3) action the judgment "specifies" the Indi-vidual members who have been identified and describedthe others.

Compare subdivision (c) (4) as to actions conductedas class actions only with respect to particular issues.Where the class-action character of the lawsuit is basedsolely on the existence of a "limited fund," the Judgment,while extending to all claims of class members againstthe fund, has ordinarily left unaffected the personalclaims of nonappearing members against the debtor.See 3 Moore, supra, par. 23.11141.

Hitherto, In a few actions conducted as "spurious" classactions and thus nominally designed to extend only to

parties and others intervening before the determinationof liability, courts have held or intimated that class mem-bers might be permitted to intervene after a decisionon the merits favorable to their interests, in order tosecure the benefits of the decision for themselves, althoughthey would presumably be unaffected by an unfavorabledecision. See, as to the propriety of this so-called "one-way" intervention in "spurious" actions, the conflictingviews expressed In Union Carbide & Carbon Corp. v.Nisley, 300 F. 2d 561 (10th Cir. 1961), pet. cert. dism., 371U.S. 801 (1963); York v. Guaranty Trust Co., 143 F. 2d503, 529 (2d Cir. 1944), rev'd on grounds not here rele-vant, 326 U.S. 99 (1945); Pentland v. Dravo Corp., 152F. 2d 51, 856 (3d Cir. 1945); Speed v. Transamerica Corp.,100 F. Supp. 461, 463 (D. Del. 1051); State WholesaleGrocers v. Great AtI. & Pac. Tea Co., 24 F.R.D. 510 (N.D.Ill. 1959); Alabama Ind. Serv. St-at. Assn. v. Shell Pet Corp.,28 F. Supp. 386, 390 (N.D. Ala. 1939); Tolliver v. CudahyPacking Co., 39 F. Supp. 337, 339 (E.D. Tenn, 1941); Kal-ven & Rosenfield, supra, 8 U. of Chi. L. Rev. 684 (1941);Comment, 53 Nw. U.L. Rev. 627, 632-33 (1958); Develop-ments in the Law, supra, 71 Harv. L. Rev. at 935; 2 Barron& Holtzoff, supra, § 58; but cf. Lockwood v. HerculesPowder Co., 7 F.R.D. 24, 28-29 (W.D. Mo. 1947); Abram v.San Joaquin Cotton Oil Co., 46 F. Supp. 969, 976-77 (S.D.Calif. 1942); Chaffee, supra, at 280, 285; 3 Moore, supra,par. 23.12, at 3476. Under proposed subdivision (c) (3),one-way intervention is excluded; the action will havebeen early determined to be a class or nonclass action,and In the former case the Judgment, whether or notfavorable, will include the class, as above stated.

Although thus declaring that the judgment In a classaction includes the class, as defined, subdivision (c) (3)does not disturb the recognized principle that the courtconducting the action cannot predete:mine the res Judi-cats effect of the Judgment; this can be tested only in asubsequent action. See Restatement, Judgments 1 86,comment (h), § 116 (1942). The court, however, Inframing the judgment In any suit brought as a classaction, must decide what its extent or coverage shall be,and if the matter Is carefully considered, questions ofres judicata are less likely to be raised at a later timeand If raised will be more satisfactorily answered. SeeChafee, supra, at 294; Weinstein, supra, 9 Buffalo L. Rev.at 460.

Subdivision (c) (4). This provision recognizes that anaction may be maintained as a class action as to particularIssues only. For example, in a fraud or similar case theaction may retain its "class" character only through theadjudication of liability to the class; the members of theclass may thereafter be required to come In individuallyand prove tWe amounts of their respective claims.

Two or more classes may be represented In a singleaction. Where a class is found to Include subclasses di-vergent In interest, the class may be divided correspond-ingly, and each subclass treated as a class.

Subdivision (d) is concerned with the fair and efficientconduct of the action and lists some types of orders whichmay be appropriate.

The court should consider how the proceedings are tobe arranged In sequence. and what measures should betaken to simplify the proof and argument. See sub-division (d) (1). The orders resulting from this con-sideration, like the others referred to in st: )division (d),may be combined with a pretrial order under Rule 16,and are subject to modification as the case proceeds.

Subdivision (d) (2) sets out a non-exhaustive list ofpossible occasions for orders requiring notice to the class.Such notice Is not a novel conception. For example, in"limited fund" cases, members of the class have beennotified to present individual claims after the basic classdecision. Notice has gone to members of a class so thatthey might express any opposition to the representation,see United States v. American Optical Co., 97 F. Supp. 66(N.D. Ill. 1951), and 1950-51 CCH Trade Cases 64573-74(par. 62869); cf. Weeks v. Bareco Oil Co., 125 F. 2d 84, 94(7th Cir. 1941), and notice may encourage interventionsto lmprcve the representation of the class. Cf. Oppen-heimer v. F, J. Young & Co., 144 F. 2d 387 (2d Cir. 1944).Notice has been used to poll members on a proposedmodification of a consent decree. See record in Sam FoxPublishing Co. v. United States, 306 U.S. 683 (1961).

Rule 23Page 2283


Subdivision (d) (2) does not require notice at anystage, but rather calls attention to its availability andinvokes the court's discretion. In the degree that there iscohesiveness or unity in the class and the representationis effective, the need for notice to the class will tendtoward a minimum. These indicators suggest that noticeunder subdivision (d) (2) may be particularly useful andadvisable In certain class actions maintained under sub-division (b) (3), for example, to permit members of theclass to object to the representation. Indeed, under sub-division (c) (2), notice must be ordered, and is not merelydiscretionary, to give the members in a subdivision (b)(3) class action an opportunity to secure exclusion fromthe class. This mandatory notice pursuant to subdivi-sion (c) (2), together with any discretionary notice whichthe court may find it advisable to give under subdivision(d) (2), Is designed to fulfill requirements of due processto which the class action procedure is of course subject.See Hansberry v. Lee, 311 U.S. 32 (1940); Mullane v.Central Hanover Bank & Trust Co., 339 U.S. 306 (1950);cf. Dickinson v. Burnham, 197 F. 2d 973. 979 (2d Mr.1952), and studies cited at 979 n. 4; see also All AmericanAirways, Inc. v. Elderd, 209 F. 2d 247, 249 (2d Cir. 1954):Gqrt v. Cole, 263 F. 2d 244, 248-49 (2d Cir. 1959), cert.denied, 359 U.S. 978 (1959).

Notice to members of the class, whenever employedunder amended Rule 23. should be accommodated to theparticular purpose but need not comply with the formali-ties for service of process. See Chafee, supra, at 230-31:Brendle v. Smith, 7 F.R.D. 119 (S.D.N.Y. 1946). The factthat notice Is given at one stage of the action does notmean that it must be given at subsequent stages. Notice1, available fundamentally "for the protection of themembers of the class or otherwise for the fair conductof the action" and should not be used merely as a devicefor the undesirable solicitation of claims. See the dis-cussion in Cherner v. Transitron Electronic Corp., 201F. Supp. 934 (D. Mass. 1962) ; Hormel v. United States, 17F.R.D. 303 (S.D.N.Y. 1955).

In appropriate cases the court should notify interestedgovernment agencies of the pendency of the action or ofparticular steps therein.

Subdivision (d) (3) reflects the possibility of condition-Ing the maintenance of a class action, e.g., on thestrengthening of the representation, see subdivision (c)(1) above; and recognizes that the imposition of condli-tions on intervenors may be required for the proper andefficient conduct of the action.

As to orders tinder subdivision (d) (4), see subdivision(c) (1) above.

Subdivision (e) requires approval of the court, afternotice, for the dismissal or compromise of any classaction,

RULE 23,1.-DEIVATIVE ACTIONS BY SHAREHOLDERS

In a derivative action brought by one or moreshareholders or members to enforce a right of acorporation or of an unincorporated association, thecorporation or association having failed to enforcea right which may properly be asserted by it, thecomplaint shall be verified and shall allege (1) thatthe plaintiff was a shareholder or member at thetime of the transaction of which he complains orthat his share or membership thereafter devolvedon him by operation of law, and (2) that the actionis not a collusive one to confer jurisdiction on acourt of the United States which it would not other-wise have. The complaint shall also allege withparticularity the efforts, if any, made by the plain-till to obtain the action he desires from the directorsor comparable authority and, if necessary, from theshareholders or members, and the reasons for hisfailure to obtain the action or for not making theeffort. The derivative action may not be main-tained if it appears that the plaintiff does not fairlyand adequately represent the interests of the share-holders or members similarly situated in enforcing

the right of the corporation or association. The ac-

tion shall not be dismissed or compromised without

the approval of the court, and notice of the proposed

dismissal or compromise shall be given to share-

holders or members in such manner as the court

directs, (Added Feb. 28, 1966, eff. July 1, 1966.)


A derivatihe action by a shareholder of a corporationor by a member of an unincorporated association has dis-tinctive aspects which require the special provisions setforth In the new rule. The next-to-the-last sentencerecognizes that the question of adequacy of representa-tion may arise when the plaintiff is one of a group ofshareholders or members. Cf. 3 Moore's Federal Practice,par. 23.08 (2d ed. 1963).

The court has inherent power to provide for the con-duct of the proceedings in a derivative action, includingthe power to determine the course of the proceedings andrequire that any appropriate notice be given to share-holders or members.

RULE 23.2 -ACTIONS RELATING TO UNINCORPORATEDASSOCIATIONS

An action brought by or against the members of

an unincorporated association as a class by naming

certain members as representative parties may bemaintaincd only if it appears that the representa-

tive parties will fairly and adequately protect theinterests of the association and its members. In

the conduct of the action the court may make ap-

propriate orders corresponding with those describedin Rule .23(d), and the procedure for dismissal or

compromise of the action shall correspond with thatprovided in Rule 23(eI. (Added Feb. 28, 1966, eff,

July 1, 1966.)

NOTES OF ADVISORY CoMMTrrEE ON RULES

Although an action by or against representatives ofthe membership of an unincorporated association hasoften been viewed as a class action, the real or mainpurpose of this characterization has been to give "entitytreatment" to the association when for formal reasons itcannot sue or be stied as a Jural person under Rule 17(b).See Louiiell & Hazard, Pleading and Procedure: State andFederal 718 (1962); 3 Moore's Federal Practice, par. 23.08(2d ed. 1963); Story, J. in West v. Randall, 29 Fed. Cas.718, 722 -23, No. 17,424 (C.C.D.R.I, 1820); and, for ex-amples, Gibbs v. Buck. 307 U.S. 66 (1939); Tunstall v.Brotherhood of Locomo'Ave F. & E., 148 F. 2d 403 (4th CIr.1945); Oskoian v. Cannel, 269 F. 2d 311 (1st Cir. 1959).Rule 23.2 deals separal.ely with these actions, referringwhere appropriate to Rlle 23.

RULE 24.-INTERVENTION

(a) Intervention of Right.Upon timely application anyone shall be permitted

to intervene in an action: (1) when a statute of the

United States confers an unconditional right to in-

tervene; or (2) when the applicant claims an inter-

est relating to the property or transaction which is

the subject of the action and he is so situated that

the di.position of the action may as a practical

matter impair or impede his ability to protect that

interest, unless the applicant's interest is adequately

represented by existing parties.

** 4 5

(As amended Feb. 28, 1bo6, elf. July 1, 1966,)

NOTES O' ADVISORY COMMITIEE ON RuLrsIn attempting to overcome certain difficulties which

have arisen in the application of present Rule 24(a) (2)and (3), this amendment draws upon the revision of therelated Rules 19 (joinder of persons needed for just

Rule 23.1 Page 2284


adjudication) and 23 (class actions), and the reasoningunderlying that revision.

Rule 24(a) (3) as amended in 1948 provided for inter-vention of right where the applicant established that hewould be adversely affected by the distribution or disposi-tion of property involved in an action to which he had notbeen made a party. Significantly, some decided casesvirtually disregarded the language of this provision.Thus Professor Moore states: "The concept of a fund hasbeen applied so loosely that it is possible for a court tofind a fund In almost any in personam action." 4 Moore'sFederal Practice, par. 24.09 [31, at 55 (2d ed. 1962), andsee, e.g., Formulabs, Inc. v. Hartley Pen Co., 275 F. 2d 52(9th Cir. 1960). This development was quite natural, forRule 24(a) (3) was unduly restricted. If an absenteewould be substantially affected in a practical sense by thedetermination made In an action, he should, as a generalrule, be entitled to intervene, and his right to do so shouldnot depend on whether there is a find to be distributedor otherwise disposed of. Intervention of right is hereseen to be a kind of counterpart to Rule 19(a) (2) (1) onJol,ader of persons needed for a just adjudication: where,upon motion of a party In an action, an absentee shouldbe joined so that lie may protect his interest which as apractical matter may be substantially impaired by thedisposition of the action, lie ought to have a right to in-tervene in the action on his own motion. See Louisel, &Hazard, Pleading and Procedure: State and Federal 749-50(1062).

The general purpose of original Rule 24(n) (2) was toentitle an absentee, purportedly represented by a party, tointervene in the action if lie could establish with fairprobability that the representation was inadequate.Thus, where an action is being prosecuted or defended bya trustee, a beneficiary of tile trust should have a right tointervene if he can show that the trustee's representationof his interest probably is inadequate; similarly a mem-ber of a class should have the right to intervene in a classaction if he can show the inadequacy of the representa-tion of his interest by the representative parties beforethe court.

Original Rule 24(a) (2), however, made it a conditionof intervention that "the applicant is or may be boundby a judgment in the action," and this created difficultieswith Intervention in class actions. If the "bound" lan-guage was read literally in the sense of res judicata, itcould defeat intervention in some meritorious cases. Amember of a class to whom a judgment in a class actionextended by its terms (see Rule 23(c) (3), as amended)might be entitled to show in a later action, when thejudgment in the class action was claimed to operate asres judicata against him, that the "representative" in theclass action had not In fact adequately represented him.If he could make this showing, the class-action judgmentmight be held not to bind him. See Hansberry v. Lee, 311U.S. 32 (1940). If a class member sought to intervene inthe class action proper, while it was still pending, ongrounds of inadequacy of representation, he could be metwith the argument: if the representation was in factinadequate, he would not be "bound" by the judgmentwhen it was subsequently asserted against him as resjudicata, hence he was not entitled to intervene; if therepresentation was in fact adequate, there was no occasionor ground for intervention. See Sam Fox Publishing Co.v. United States, 366 U.S. 683 (1961); cf. Sutphen Estates,Inc. v. United States. 342 U.S. 19 (1951). This reasoningmight be linguistically justified by original Rule 24(a)(2) ; but it could lead to poor results. Compare the dis-cusston in International M. & I. Corp. v. Von Clemm, 301F. 2d 857 (2d Cir. 1962); Atlantic Refining Co. v. StandardOil Co., 304 F. 2d 387 (D.C. Cir. 1962). A class memberwho claims that his "representative" does not adequatelyrepresent him, and is able to establish that propositionwith sufficient probability, should not be put to the riskof having a judgment entered in the action which by itsterms extends to him, and be obliged to test the validityof the judgment as applied to his interest by a later col-lateral attack. Rather he should, as a general rule, beentitled to intervene in the action.

The amendment provides that an applicant is entitledto Intervene in an action whe.i his position is comparableto that of a person under Rule 19(a) (2) (i), as amended,

unless his Interest Is already adequately represented inthe action by existing parties. The Rule 19(a) (2) (i)criterion imports practical considerations, and the dele-tion of the "bound" language similarly frees the rulefrom undue preoccupation with strict considerations ofres judicata.

The representation whose adequacy comes into questionunder the amended rule is not confined to formal repre-sentation like that provided by a trustee for his bene-ficiary or a representative party In a class action for amember of the class. A party to an action may providepractical representation to the absentee seeking inter-vention although no such formal relationship existsbetween them, and the adequacy of this practical repre-sentation will then have to be weighed. See Interna-tional M. & I. Corp. v. Von Clemm, and Atlantic RefiningCo. v. Standard Oil Co., both supra; Wolpe v. Poretaky,144 F. 2d 505 (D.C. Cir. 1944), cert. denied, 323 U.S. 777(1944); cf. Ford Motor Co. v. Bisanz Bros., 249 F. 2d 22(8th Cir. 1957); and generally, Annot., 84 A.L.R. 2d 1412(1961).

An intervention of right under the amended rule maybe subject to appropriate conditions or restrictions re-sponsive among other things to the requirements ofefficient conduct of the proceedings.

V. DEPOSITIONS AND DISCOVERY

RULE 25.-DEPOSITIONS PENDING ACTION

(a) When Depositions lay be Taken.Any party may take the testimony of any person,

including a party, by deposition upon oral exainina-tion or written interrogatories for the purpose ofdiscovery or for use as evidence in the action or forboth purposes. After commencement, of the actionthe deposition may be taken without leave of court,except that leave, granted with or without notice,must be obtained if notice of the taking is served bythe plaintiff within 20 days after commencementof the action. The attendance of witnesses may becompelled by the use of subpoena as provided in Rule

45. Depositions shall be taken only in accordance

with these rules, except that in admiralty and mari-

time claims within the meaning of Rule 9(h) deposi-

tions may also be taken under and used in accord-

ance with sections 863, 864, and 865 of the Revised

Statutes (see note preceding 28 U.S.C. § 1781). The

deposition of a person confined in prison may be

taken only by leave of court on such terms as the

court prescribes.


NOTFS OF ADVISORY COMMITTEN ON RUL-S

The requirement that the plaintiff obtain leave ofcourt in order to serve notice of taking of a depositionwithin 20 days after commencement of the action givesrises to difficulties when the prospective deponent isabout to become unavailable for examination. Theproblem is not confined to admiralty, but has been ofspecial concern in that context because of the mobilityof Vessels and their personnel. When Rule 26 wasadopted as Admiralty Rule 30A in 1961, the problem wasalleviated by permitting depositions de bene esse, forwhich leave of court is not required. See Advisory Com-mittee's Note to Admiralty Rule 30A (1961).

A continuing study is being made in the effort to devisea modification of the 20-day rule appropriate to both thecivil and admiralty practice to the end that Rule 26(a)shall state a uniform rule applicable alike to what arenow civil actions and stilts in admiralty. Meanwhile,the exigencies of maritime litigation require preservation,for the time being at least, of the traditional de bene esseprocedure for the post-unification counterpart of thepresent suit in admiralty. Accordingly, the amendment

Rule 26Page 2285


provides for continued availability of that procedure inadmiralty aiid maritime clills within tile ieaning ofRule 9(h).

VI. TRIALS

RULE 38.-JURY TRIAL OF RIGHT

(e) Admiralty amd Maritime Claims.These rules shall not be construed to create a right

to trial by jury of the issues in all admiralty or maril-time claiml within tile meaning of Rule 911l. (Asamended Feb. 28, 1966, eff. July 1, 1966.)


See Note to Rule 9(1h), supra

RULE 41.-DIsMISSAL OF ACTIONS

(a) Voluntary I)ismissal: Effect Thereof.(1) By Plaintiff; by Stipulation. Subject to tile

provisions of Rule 23(e), of Rule 66, and of anystatute of the United States, an action may be dis-missed by the plaintiff without order of court (t)by filing a notice of dismissal at any time beforeservice by the adverse party of an answer oi- of amotion for summary judgment, whichever first oc-curs, or (ii) by filing a stipili ion of dismissal signedby all parties who have appered in the action. Un-less otherwise stated in the notice of dismissal orstipulation, the dismissal is without prejudice, ex.cept that a notice of dismissal operates as an ad-judication upon the nerits when filed by a plaintiffwho has once disnissed in any court of the UnitedS' ,.tes or of any state an action based on or includingLtie same claim.

* * 4 4 4

(b) Inioliitary l)ismissal: Effect Thereof.For failure of the plaintiff to prosecute or to com-

ply with these rules or any order of court, a defend-ant may move for dismissal of an action or of anyclaim against him. After the plaintiff, in actiontried by the court without a jury, has completed thepresentation of his evidence, the defendant, withoutwaiving his right to offer evidence in the event the

motion Is not granted, may move for a dismissal onthe grotud that upon the facts and tile law the

plaintiff has shown 11o right to relief. The courtas trier of the facts may then determine them andrender judgment against the plaintiff or may de-cline to render any judgment until tie close of allthe evidence. If the court renders judgment on tilemeiits against the plaintiff, the court shall makefindings as provided in Rule 52 (a). Unless thecourt in its order for dismissal otherwise specifies,a dismissal under this subdivision and any dismissalnot provided for in this rule other than a dismissalfor lack of jurisdiction, fo improper venue, or forfailure to join a party under Rule 19, operates as anadjudication upon tile merits.


NOTES OF ADVISORY CoIusmrrT ON RULES

1968 AMENDMENTThe amendment corrects anl inadvertent error in tile

reference to amended Rule 23.

1966 AMENDMENTThe terminology is changed to accord with the amend-

ment of Rule 19. See that amended rule and the Ad-visory Committee's Note thereto.

RULE 42.-CONSOLIDATION; SEPARATE TRIALS

(b) Separatle Trials.The court, in furtherance of convenience or to

avoid prejudice, or when separate trials will be con-ducive to expedition and economy, may order a sepa-rate trial of any claim, cross-claim, counterclaim,or third-party claim, or of any separate issue or ofany number of claims, cross-claims, counter-claims,third-party claims, or issues, always preserving in-violate the right of trial by jury as declared by theSeventh Amendment to the Constitution or as givenby a statute of the United States. (As amended Feb.28, 1966, elf. July 1, 1966.)

NOTES or ADVISORY COMai rrTEE ON RULES

In certain suits in adniralty separation for trial ofthe issues of liability nnd damages (or of the extent ofliability other than damages, such as salvage and generalaverage) has been conducive to expedition and econ-omy, especially because of the statutory right to inter-locutory appeal in admiralty cases (which Is of coursepreserved by these Rules). While separation of Issuesfor trial Is not to be routinely ordered, it is inportantthat it be encouraged where experience has demonstratedits worth. Cf. Weinstein, Routine Bifurcation of Negli-gence Trials, 14 Vand. L. Rev. 831 (1961).

In cases (including some cases within the admiraltyand maritime jurisdiction) in which the parties have aconstitutional or statutory right of trial by jury, separa-tion of issues may give rise to problens. See e.g . UnitedMr Lines, Inc. v. Wiener, 286 F. 2d 302 (9th Cir. 1961).Accordingly, the proposed change in Rule 42 reiteratestile mandate of Rule 38 respecting preservation of theright to jury trial.

RULE 43,-EVIDENCE

(f) Interpreters.The court may appoint an interpreter of its own

selection and may fix his reasonable compensation.The compensation shall be paid out of funds pro-vided by law or by one or more of the parties as thecourt may direct, and may be taxed ultimately ascosts, in the discretion of the court. (As amendedFeb. 28, 1966, eff. July 1, 1966.)

NOTES OF ADvisoay COMMrrTEE ON RULES

Tihis new subdivision authorizes the court to appointinterpreters (including interpreters for the deaf), to pro-vide for their compensation, and to tax tile compensa-tion as costs. Compare proposed subdivision (b) of Rule28 of the Federal Rules of Criminal Procedure.

RULE 44.-PROOF OF OFFICIAL RECORD

(a) Aut hentication.(1) Domestic. An official record kept within

the United States, or any state, district, common-wealth, territory, or insular possession thereof, orwithin the Panama Canal Zone, the Trust Territoryof the Pacific Islands, or the R-yukyu Islands, or anentry therein, when admissible for any purpose,may be evidenced by an official publication thereofor by a copy attested by the officer having the legalcustody of the record, or by his deputy, and accom-panied by a certificate that such officer has thecustody. The certificate may be made by a judgeof a court of record of the district or political sub-

Page 2286Rule 38


division in which the record is kept, authenticatedby the seal of the court, or may be made by anypublic officer having a seal of office and havingofficial duties in the district or political subdivisionin which the record is kept, authenticated by theseal of his office.

(2) Foreign. A foreign official record, or an entrytherein, when admissible for any purpose, may beevidenced by an official publication thereof; or acopy thereof, attested by a person autthorized tomake the attestation, and accompanied by a finalcertification as to the genuiness of the signatureand official position (i) of the attesting person, or(ii of any foreign official whose certificate of genu-ineness of signature and official position relates tothe attestation or is in a chain of certificates ofgenuiness of signature and official position relatingto the attestation. A final certification may bemade by a secretary of embassy or legation, consulgeneral, consul, vice consul, or consular agent ofthe United States, or a diplomatic or consular of-ficial of the foreign country assigned or accreditedto the United States. If reasonable opportunityhas been given to all parties to investigate the au-thenticity and accuracy of the documents, the courtmay, for good cause shown, (i) admit an attestedcopy without final certification or (ii permit theforeign official record to be evidenced by an attestedsummary with or without a final certification.

(h) Lack of IHvcord.A written statement that after diligent search no

record or entry of a specified tenor is found to ex-ist in the records designated by the statement, au-thenticated as provide in subdivision (a) (1) of thisrule in the case of a domestic record, or complyingwith the requirements of subdivision (a) (2) of thisrule for a summary in the case of a foreign record,Is admissible as evidence that the records containno such record or entry.

(c) Other Proof.This rule does not prevent the proof of official

records or of entry or lack of entry therein by anyother method authorized by law. (As amendedFeb. 28, 1966, eft. July 1, 1966.)


Subdivision (a) (1). These provisions on proof ofofficial records kept within the United States are similarIn substance to those heretofore appearing In Rule 44.There is a more exact description of the geographicalareas covered. An official record kept In one of the areasenumerated qualifies for proof under subdivision (a) (1)even though It is not a United States official record. Forexample, an official record kept In one of these areas by agovernment in exile falls within subdivision (a) (1). Italso falls within subdivision (a) (2) which may be availedof alternatively. Cf. Banco do Espana v. Federal ReserveBank, 114 F. 2d 438 (2d Cir. 1940).

Subdivision (a) (2). Foreign official records may beproved, as heretofore, by means of official publicationsthereof. See United States v. Aluminum Co. of America,1 F.R.D. 71 (S.D.N.Y. 1939). Under this rule, a documentthat, on its face, appears to be an official publication, Isadmissible, unless a party opposing Its admission intoevidence shows that it lacks that character.

The rest of subdivision (a) (2) alms to provide greaterclarity, efficiency, and flexibility in the procedure forauthenticating copies of foreign official records.

The reference to attestation by "the officer having thelegal custody of the record," hitherto appearing In Rule44, has been found inappropriate for official records kept

in foreign countries where the assumed relation betweencustody and the authority to attest does not obtain.See 2B Barron & Holtzoff, Federal Practice & Procedure§ 992 (Wright ed. 1961). Accordingly it is provided thatan attested copy may be obtained from any person au-thorized by the law of the foreign country to make theattestation without regard to whether he is charged withresponsibility for maintaining the. record or keeping it inhis custody.

Under Rule 44 a United States foreign service officerhas been called onl to certify to the authority of theforeign official attesting the copy as well as the genulne-ness of Isis signature and his official position. SeeSchlesinger, Comparative Law 57 (2d ed. 1959): Smit,International Aspects of Federal Civil Procedure, 61Colum. L. Rev. 1031, 1063 (1961); 22 C.F.R. § 92.41(a),(e) (1958). This has created practical difficulties. Forexample, the question of the authority of the foreignofficer nilgft raise issues of foreign law which were be-yond the knowledge of the United States officer. Thedifficulties are met under the amended rule by elfmlftat-ing the element of the authority of the attesting foreignofficia! from the scope of the certifying process, and byspecifically permitting use of the chain-certificatemethod. Under this method, it is sufficient If theoriginal attestation purports to have been Issued by anauthorized person and is accompanied by a certificateof another foreign official whose certificate may In turnbe followed by that of a foreign official of higher rank.The process continues until a foreign official is reached asto whom the United States foreign service official (or adiplomatic or consular officer of the foreign countryassigned or accredited to the United States) has adce-quate information upon which to base a "final certiflca-tion." See New York Life Ins. Co. v. Aronson, 38 F. Supp.6117 (W.D. Pa. 1941); 22 C.F.R. § 92.37 (1958).

The final certification (a term used in contradistinctionto the certificates prepared by the foreign officials in achain) relates to the incumbency and genuineness ofsignature of the foreign official who attested the copy ofthe record or where the chain-certificate method Is used,of a foreign official whcse certificate appears in the chain,whether that. certificate is the last In the chain or not.A final certification may be prepared on the basis of ma-terial ons file in the consulate or any other satisfactoryinformation.

Although the amended rule will generally facilitateproof of foreign official records, it Is recognized that insome situations it may be difficult or even impossible tosatisfy the basic requirements of the rule. There may beno United States consul in a particular foreign country;the foreign officials may not cooperate, peculiarities mayexist or arise hereafter In the law or practice of a foreigncountry. See United States v. Grablna, 119 F. 2d 863(2d Cir. 1941); and. generally, Jones, InternationalJudicial Assistance: Procedural Chaos and a Program forReform, 62 Yale L.J. 515, 548-49 (1953). T'herefore thefinal sentence of subdivision (a) (2) provides the courtwith discretion to admit an attested copy of a recordwithout a final certification, or an attested summary ofa record with or without a final certification. See Rep.of Comm. on Comparative Civ. Proc. & Prac., Proc. A.B.A.,Sec. Int'l & Comp. L. 123, 130-131 (1952); Model Code ofEvidence t§ 517, 519 (1942). This relaxation should bepermitted only when it is shown that the party has beenunable to satisfy the basic requirements of the amendedrule despite Iris reasonable efforts. Moreover It is spe-cially proided that the parties must be given a reasonableopportunity in these cases to examine into the ai-thenticity and accuracy of the copy or summary.

Subdivision (b). This provision relating to proof oflack of record is accommodated to the changes made Insubdivision (a).

Subdivision (c). Tlse amendment insures that Inter-national agreements of the United States are unaffectedby the rule. Several consulnr conventions contain pro-visions for reception of copies or summaries of foreignofficial records. See, e.g., Consular Cony. with Italy, May8, 1878, art. X, 20 Stat. 725, T.S. No. 178 (Dept. State1878). See also 28 U.3.C. §§ 1740-42, 1745: Fakourl v.Cadals, 149 F. 2d 321 (5th Cir. 1945), cert. denied, 328U.S. 742 (1945); 5 Mc;ore's Federal Practice, par. 44.05(2d ed. 1951).

Page 2287 Rule 44


RULE 44.1.-DETERMINATION OF FOREIGN LAW

A party who intends to raise an issue concerningthe law of a foreign country shall give notice in hispleadings or other reasonable written notice. Thecourt, in determining foreign law, may consider anyrelevant material or source, including testimony,whether or not submitted by a party or admissibleunder Rule 43. The court's determination shall betreated as a ruling on a question of law. (AddedFeb. 28, 1966. eff. July 1, 1966.)

NOTES OF ADvisoRy COhihsITTEE ON RULES

Rule 44.1 is added by amendment to furnish Federalcourts with a uniform and effective procedure for raisingand determining an issue concerning the law of a foreigncountry.

To avoid unfair surprise, the first sentence of the newrule requires that a party who intends to raise an issueof foreign law shall give notice thereof. The uncertaintytinder Rule 8(a) about whether foreign law must bepleaded-compare Siegelman v. Cunard White Star, Ltd.,221 F. 2(1 189 (2d Cir. 1955), and Pedersen v. United States,191 F. Supp. 95 (D. Guam 1961), with Harrison v. UnltedFruit Co.. 143 F. Supp. 598 (S.D.N.Y. 1956) -is eliminatedby the provision that the notice shall be "written" and"reasonable." It may, but need not be, incorporated inthe pleadings. In some situations the pertinence of for-eign law is apparent from tlse outset; accordingly thenecessary timn estigaton of that law will have been accom-plished by the party at the pleading stage, and the noticecan be given conveniently in the pleadings. In othersituations the pertinence of foreign law may remaindoubtful until the case is further developed. A require-ment that notice of foreign lmw be given only throughthe medium of tile pleadings would tend In the latterinstances to force the party to engage in a peculiarlyburdensome type of inestigation which might turn outto be unnecessary; and correspondingly the adversarywould be forced into a possible wasteful investigation.The liberal provisions for amendment of the pleadingsaffordl help if the pleadings are used as the medium ofgiving notice of the foreign law; but it seems best topermit a written notice to be given outside of and laterthan the pleadings, provided the notice is reasonable.

The new rule does not attempt to set any definitelimit on the party's time for giving the notice of ans issueof foreign law; in some cases tire issue may not becomeapparent until the trial and notice then given may stillbe reasonable. The stage which the case has reachedat the time of the notice, the reason proffered by theparty for his failure to give earlier notice, and the im-portance to the case as a whole of the issue of foreignlaw sought to be raised, are among the factors whichthe court should consider in deciding a question of thereasonableness of a notice. If notice is given by oneparty it need not be repeated by any other and serves asa basis for presentation of material on the foreign lawby all parties.

The second sentence of the new rule describes thematerials to which the court may resort in determiningan issue of foreign law. Heretofore the district courts,applying Rule 43(a), have looked in certain cases to Statelaw to find the rules of evidence by which the contentof foreign-country law is to be established. The Statelaws vary; some embody procedures which are inefficient,time consuming and expensive. See, generally, Nussbaum,Proving the Law of Foreign Countries, 3 Am. J. Comp. L.60 (1054). In all events the ordinary rules of evidence areoften inapposite to the problem of determining foreignlaw and have in the past prevented examination of mate-rial which could have provided a proper basis for thedetermination. The new rule permits consideration bythe court of any relevant material, including testimony,without regard to its admissibility under Rule 43. Cf.N.Y. Civ. Prac. Law & Rules, R. 4511 (effective Sept. 1,1963); 2 Va. Code Ann. tit. 8, § 8-273; 2 W. Va. Code Ann.1 5711.

In further recognition of the peculiar nature of theissue of foreign law, the new rule provides that in deter-mining this law the court is not limited by material pre-

sented by the parties; it may engage in its own researchand consider any relevant material thus found. Thecourt may have at its disposal better foreign law mate-rials than counsel have presented, or may wish to re-examine and amplify material that has been presentedby counsel in partisan fashion or in insuffcient detail.Oin the other hand, the court is free to insist on a com-plete presentation by counsel.

There is no requirement that the court give formalnotice to the parties of its intention to engage in its ownresearclh on all issue of foreign law which has beenraised by them, or of its intention to raise and deter-mine independently an issue not raised by them. Or-dinarily tise court should inform the parties of materialit has found diverging substantially from the materialwhich they have presented; and in general the courtshould give the parties an opportunity to analyze andcounter new points upon which it proposes to rely. SeeSchlesinger, Comparative Law 142 (2d ed. 1959); Wyzan-ski, A Trial Judge's Freedom and Responsibility, 65 Hare.L. Rev. 1281. 1296 (1952); cf. Slegelman v. Cunard WhiteStar, Ltd., supra, 221 F. 2d at 197. To require, however,that the court give formal notice from time to time as itproceeds with its study of the foreign law would add anelement of undesirable rigidity to the procedure for de-termining issues of foreign law,

The new rule refrains from imposing an obligation onthe court to take "judicial notice" of foreign law becausethis would put an extreme burden ois the court it manycases; and it avoids use of the concept of "judicial no-tice" in any form because of tise uncertain meaning ofthat concept as applied to foreign law. See, e.g., Stern,Foreign Law in the Courts: Judicial Notice and Proof, 45Calif. L. Rev. 23, 43 (1957). Rather the rule providesflexible procedures for presenting and utilizing materialon issues of foreign law by which a sound result can beachieved with fairness to the parties.

Under the third sentence, the court's determination ofan issue of foreign law is to be treated as a ruling oil aquestion of "law," not "fact," so that appellate reviewwill not be narrowly confined by the "clearly erroneous"standard of Rule 52(a). Cf. Uniform Judicial Notice ofForeign Law Act § 3; Note, 72 Hary. L. Rev. 318 (1958).

The new rule parallels Article IV of the Uniform Inter-state and International Procedure Act, approved by theCommissioners on Uniform State Laws in 1962, exceptthat section 4.03 of Article IV states that "It lhe court,not the jury" shall determine foreign law. The new ruledoes not address itself to this problem, since the Rulesrefrain from allocating functions as between the courtand the jury. See Rule 38(a). It has long been thought,however, that the jury is not the appropriate body todetermine issues of foreign law. See, e.g., Story, Conflictof Ltws, § 638 (1st ed. 1834. 8th ed. 1883); 1 Greenleaf,Evidence, 486 (1st ed. 1842, 16th ed. 1899); 4 Wigmore,Evidence §2558 (Ist ed. 1905); 9 id. § 2558 (3d ed. 1940).The majority of the States have committed such issues todetermination by the court. See Article 5 of the UniformJudicial Notice of Foreign Law Act, adopted by twenty-six states, 9A U.L.A. 318 (1957) (Suppl. 1961, at 134):N.Y. Clv. Prac. Law & Rules, R, 4511 (effective Sept. 1,1963); Wigmore, loc. cit. And Federal courts that haveconsidered the problem in recent years have reached thesame conclusion without reliance on statute. See Jans-son v. Swedish American Line, 185 F. 2d 212, 216 (1st Cir.1950); Bank of Nova Scotia v. San Miguel, 196 F. 2d 950,957. n. 6 (1st Cir. 1952); Lieciti v. Roche, 198 F. 2d 174(5th Cir. 1952); Daniel Lumber Co. v. Empresas Hon-durenas, S.A., 215 F. 2d 465 (Sth Cir. 1954).

RULE 47.-JURORS

(b) Alternate jurors.The court may direct that not more than six jurors

in addition to the regular Jury be called and impan-elled to sit as alternate jurors. Alternate jurors in

the order in which they are called shall replace jurors

who, prior to the time the jury retires to consider its

verdict, become or are found to be unable or disquali-

fied to perform their duties. Alternate jurors shall

Rule 44.1 Page 2288


be drawn in the same manner, shall have the samequalifications, shall be subject to the same examina-tion and challenges, shall take the same oath, andshall have the same functions, powers, facilities, andprivileges as the regular jurors. An alternate jurorwho does not replace a regular juror shall be dis-charged after the jury retires to consider its verdict.Each side is entitled to 1 peremptory challenge in ad-dition to those otherwise allowed by law if 1 or 2alternate jurors are to be impanelled, 2 pelemptorychallenges if 3 or 4 alternate jurors are to be iinpan-elled, and 3 peremptory challenges if 5 or 6 alternatejurors are to be impanelled. The additional per-emptory challenges may be used against an alternatejuror only, and the other peremptory challenges al-lowed by law shall not be used against an alternatejuror. (As amended Feb. 28, 1966, eff. July 1, 1966.)

NOTES OF AiDvISORY COIMITTEE ON RULES

The revision of this subdivision brings it into line withthe amendment of Rule 24(c) of the Federal Rules ofCrinlnol Prormdure That. rule previouslV allowed four al-ternate Jurors, as contrasted with the two allowed in civilcases, and the amendments increase the number of it maxi-muni of six in all cases. Tie Advisory Committee's Noteto amended Criminal Rule 24 (c) points to experience dem-onstrating that four alternates may not be enough In somelengthy criminal trials; and the same may be said of civiltrials. The Note adds:

"The words 'or are found to be' are added to the secondsentence to make clear that an alternate juror may becalled In the situation where it is first discovered duringthe trial that a juror was unable or disqualified to preformhis duties at the time lie was sworn."

RULE 53.-MASTERS

(a) Appointment and Compensation.Each district court with the concurrence of a ma-

jority of all the judges thereof may appoint one ormore standing masters for its district, and the courtin which any action is pending may appoint a specialmaster therein. As used in these rules the word"lnaster" includes a referee, an auditor, an examiner,a commissioner, and an assessor. The compensationto be allowed to a master shall be fixed by the court,and shall be charged upon such of the parties or paidout of any fund or subject matter of the action,which is in the custody and control of the court as thecourt may direct. The master shall not retain hisreport as security for his compensation; but whenthe party ordered to pay the compensation allowedby the court does not pay it after notice and withinthe time prescribed by the court, the master is en-titled to a writ of execution against the delinquentparty.

(b) Reference.A reference to a master shall be the exception and

not the rule. In actions to be tried by a jury, a refer-ence shall be made only when the issues are compli-cated; in actions to be tried without a jury, save inmatters of account and of difficult computation ofdamages, a reference shall be made only upon ashowing that some exceptional condition requires it.

** * *

(As amended Feb. 28, 1966, eff. July 1, 19F6.)

No'rEs OF ADvisony COMMrrrEx ON RULESThese changes are designed to preserve the admiralty

practice whereby difficult computationn. are referred to acommissioner or assessor, especially after an interlocutoryjudgment determining liability. As to separation of Issuesfor trial see Rule 42(b).

VII JUDGMENT

RULE 59.-NEW TRIALS; AMENDMENT OF JUDGMENT

(d) Oi Initiative of Court.Not later than 10 days after entry of judgment the

court of its own initiative may order a new trial forany reason for which it might have granted a newtrial on motion of a party. After giving the partiesnotice and an opportunity to be heard on the mat-ter, the court may grant a motion for a new trial,timely served, for a reason not stated in the motion.In either case, the court shall specify in the order thegrounds therefor.


NOTES or ADvIsoRy COMMITTEE ON IIULES

By narrow interpretation of Rule 59(b) and (d), ithas been held that the trial court is without power togrant a motion for a new trial, timely served, by anorder made more thtn 10 dpyq "ftr the entry of jiitlg-ment, based upon a ground not stated in the motion butperceived and relied on by the trial court sua sponte.Freld v. McGrath, 133 F. 2d 350 (D.C. Cir. 1942); NationalFarmers Union Auto. & Cas. Co. v. Wood, 207 F. 2d 659(10th Cir. 1953); Bailey v. Slentz, 189 F. 2d 406 (10thCir. 1951); Marshall's U S. Auto Supply, Inc. v. Cashman,111 F. 2d 140 (10th Cir. 1940), cert. denied, 311 U.S. 667(1940); but see Steinberg v. Indemnity Ins, Co., 36 F.R.D.253 (ED. La. 1964).

The result Is undesirable. Just as the court has powertinder Rule 59(d) to grant a new trial of its own Initia-tive withing the 10 days, so it should have power, whenan effective new trial motion has been made and is pend-Ing, to decide it on grounds thought meritorious by thecourt although not advanced in the motion. The secondsentence added by amendment to Rule 59(d) confirmsthe court's power in the latter situation, with provisionthat the parties be afforded a hearing before the poweris exercised. See 6 Moore's rederal Practice, par. 59.09121(2d ed. 1953).

In considering whether a given ground has or has notbeen advanced in the motion made by the party, it shouldbe borne in mind that the particularity called for in stat-ing the grounds for a new trial motion is the same asthat required for all motions by Rule 7(b) (1). Thelatter rule does not reqtire ritualistic detail but rathera fair indication to court and counsel of the substanceof the grounds relied on. See Lebeck v. William A.Jarvis Co., 250 F. 2d 285 (3d Cir. 1957); Tsai v. Rosenthal,297 F. 2d 614 (8th Cir. 1961); General Motors Corp. v.Perry, 303 F. 2d 544 (7th Cir. 1962); cf. Grinn v. Cali-fornia Spray-Chemical Corp., 264 F. 2d 145 (9th Cir.1959); Cooper v. Midwest Feed Products Co., 271 F. 2d177 (8th Cir. 1959).

VIII. PROVISIONAL AND FINAL REMEDIES ANDSPECIAL PROCEEDINGS

RULE 65.-INJUNCTIONS

(a) Preliminary Injunction.(1) Notice. No preliminary injunction shall be

issued without notice to the adverse party.(2t Consolidation of1lcaring With Trial on Merits.

Before or after the commencement of the hearingof an application for a preliminary injunction, thecourt may order the trial of the action ol the meritsto be advanced and consolidated with the hearingof the application. Even when this consolidationis not ordered, any evidence received upon an appli-cation for a preliminary injunction which would beadmissible upon the trial on the merits becomes partof the record on the trial and need not be repeated

Page 228f9 Rule 65


upon the trial. This subdivision (a) (2) shall be soconstrued and applied as to save the parties anyrights they may have to trial by jury.

(b) Temporary Restraining Order; Notice; Hearing;l)uration.

A temporary restraining order may be grantedwithout written or oral notice to the adverse partyor his attorney only if (1) it clearly appears fromspecific facts shown by affidavit or by the verifiedcomplaint that immediate and irreparable injury,loss, or damage will result to the applicant beforethe adverse party or his attorney can be heard inopposition, and (2) the applicant's attorney certifiesto the court in writing the efforts, if any, which havebeen made to give the notice and the reasons sup-porting his claim that notice should not be required.Every temporary restraining order granted withoutnotice shall be indorsed with the date and hour ofissuance; shall be filed forthwith in the clerk'soffice and p'ntired of record; shall define the injuryand state why it is irreparable and why the orderwas granted without notice; and shall expire by itsterms within such time after entry, not to exceed 10days, as the court fixes, unless within the time sofixed the order, for good cause shown, is extendedfor a like period or unless the party against whomthe order is directed consents that it may be ex-tended for a longer period. The reasons for theextension shall be entered of record. In case atemporary restraining order is granted withoutnotice, the motion for a preliminary injunction shallbe set down for hearing at the earliest possible timeand takes precedence of all matters except oldermatters of the same character; and when the motioncomes on for hearing the party who obtained thetemporary restraining order shall proceed with theapplication for a preliminary injunction and, if hedoes not do so, the court shall dissolve the tempo-rary restraining order. On 2 days' notice to theparty who obtained the temporary restraining orderwithout notice or on such shorter notice to thatparty as the court may prescribe, the adverse partymay appear and move its dissolution or modificationand in that event the court shall proceed to hear anddetermine such motion as expeditiously as the endsof justice require.

(c) Security.No restraining order or preliminary injunction

shall issue except upon the giving of security bythe applicant, in such sum as the court deems proper,for the payment of such costs and damages as maybe incurred or suffered by any party who is found tohave been wrongfully enjoined or restrained. Nosuch security shall be required of the United Statesor of an officer or agency thereof.

The provisions of Rule 65.1 apply to a suretyupon a bond or undertaking under this rule.


NOTES O' ADvIsoRy COMMITTEE ON RULESSubdivision (a) (2). This new subdivision provides

express authority for consolidating the hearing of anapplication for a preliminary injunction with the trial onthe merits. The authority can be exercised with particu-

lar profit when it appears that a substantial part of evi-dence offered on the application will be relevant to themerits and will be presented In such form as to qualifyfor admission on the trIal proper. Repetition of evidenceIs thereby avoided. The fact that the proceedings havebeen consolidated should cause no delay In the disposi-tion of the application for the preliminary Injunction.for the evidence will be directed In the first instance tothat relief, and the preliminary injunction, if Justifiedby the proof, may be Issued in the course of the consoli-dated proceedings. Furthermore, to consolidate the pro-ceedings will tend to expedite the final disposition of theaction. It is believed that consolidation can be usefullyrvailed of in many cases.

The subdivision further provides that even when con-solidation is not ordered, evidence received in connectionwith an application for a preliminary Injunction for apreliminary injunction which would be admissible onthe trial on the merits forms part of the trial record.This evidence need not be repeated on the trial. On thetbe other hand, repetition Is not altogether prohibited.That would be impractical and unwise. For example, awitness testifying comprehensively on the trial who haspreviously testified upon the application for a preliminaryinjunction might conictimc be hamstrung Ii, telling hisstory if he could not go over some part of his prior testi-mony to connect it with his present testimony. Soalso, some repetition of testimony may be called for wherethe trial is conducted by a judge who did not hear theapplication for the preliminary injunction. In general,however, repetition can be avoided with an increase ofefficiency in the conduct of the case and without any dis-tortion of tile presentation of evidence b'- the parties.

Since an application for a preliminary injunction maybe mad' in an action in which, with respect to all orpart of the merits, there Is a right to trial by jury, it isappropriate to add the caution appearing in the lastsentence of the subdivision. In such a case the jury willhave to hear all the evidence bearing on its verdict, evenif some part of the evidence has already been heard bythe judge alone on the application for the preliminaryinjunction.Tie subdivision is believed to reflect the substance of

tile best current pr,,ctice and introduces no novelconception.

Subdivision (b). In view of the possibly drastic con-sequence of a temporary restraining order, the oppositionshould be heard, if feasible, before the order Is granted.Many judges have properly insisted that, when time doesnot permit of formal notice of tile application to the ad-verse party, some expedient, such as telephonic notice tothe attorney for the adverse party, be resorted to If thiscan reasonably be done. On occasion, however, tempo-rary restraining orders have been issued without anynotice when it was feasible for sonic fair, although in-formal, notice to be given. See the emphatic criticismsin Pennsylvania Rd. Co. v. Transport Workers Union, 278F. 2d 693, 694 (3d Cir. 1960); Arvida Corp. v. Sugarman,259 F. 2d 428, 429 (2d Cir. 1958); Lummus Co. v. Com-monwealth Oil Ref. Co., Inc., 297 F. 2d 80, 83 (2d Cir.1961), cert. denied, 368 U.S. 986 (1962).

Heretofore the first sentence of subdivision (b). Inreferring to a notice "served" on the "adverse party" onwhich a "hearing" could be held, perhaps invited the in-terpretation that the order might be granted withoutnotice if the circumstances did not permit of a formalhearing on the basis of a formal notice. 'rie subdivisionis amended to make it plain that informal notice, whichmay be communicated to tile attorney rather than theadverse party, is to be preferred to no notice at all.

Before notice can be dispensed with, tile applicant'scounsel must give his certificate as to any efforts made togive notice and the reasons why notice should not be re-quired. This certificate is in addition to the requirementof an affidavit or verified complaint setting forth the factsas to the irreparable injury which would result before theopposition could be heard.

The amended subdivision continues to recognize that atemporary restraining order may be issued without anynotice when the circumstances warrant.

Rule 65 Page 2290


Subdivision (c). Original Rules 05 and 73 containedsubstantially identical provisions for summary proceed-ings against sureties on bonds required or permitted bythe riles. There was fragmentary coverage of the samesubject in the Admiralty Rules. Clearly, a single com-prehensive rule is required, and is incorporated as Rule65.1.

RULE 65.1.-SECURITY: PROCEEDINGS AGAINST

SURETIES

Whenever these rules, including the SupplementalRules for Certain Admiralty and Marine Claims,require or permit the giving of security by a party,and security is given in the form of a bond or stipu-lation or other undertaking with one or more sure-ties, each suiety submits himself to the jurisdictionof the court and irrevocably appoints the clerk ofthe court ats his agent upon whom any papers affect-ing his liability on the bond or undertaking may be

served. His liability may be enforced on motionwithout the necessity of an independent action.The motion and such notice of the motion as thecourt pi'bui lbes may be scrvcd on the clerk of thecourt, who shall forthwith mail copies to the sure-ties if their addresses are known. (Added Feb. 28,1966, eff. July 1, 1966.

NOTES OF ADVISORY COMMITTEE ON RULESSee Note to Rule 65(c).

RULE 68.-OFFER OF JUDGMENT

At any time more than 10 days before the trialbegins, a party defending against a claim may serveupon the adverse party an offer to allow judgment tobe taken against him for the money or property orto the effect specified in his offer, with costs thenaccrued. If within 10 days after the service of theoffer the adverse party serves written notice thatthe offer is accepted, either party may then file theoffer and notice of acceptance together with proofof service thereof and thereupon the clerk shallenter judgment. An offer not accepted shall bedeemed withdrawn and evidence thereof is not ad-missible except in a proceeding to determine costs.If the judgment finally obtained by the offeree isnot more favorable than the offer, the offeree mustpay the costs incurred after the making of the offer.The fact that an offer Is made but not accepted doesnot preclude a subsequent offer. When the liabilityof one palty to another has been determined by ver-dict or order or judgment, but the amount or extentof the liability remains to be determined by furtherproceedings, the party adjudged liable may makean offer of judgment, which shall have the sameeffect as an offer made before trial if it is servedwithin a reasonable time not less than 10 days priorthe commencement of hearings to determine theamount or extent of liabihty. (As amended Feb. 28,1966, eff. July 1, 1966.)

NOTES or ADVISORY COMMITTEE ON RULES

This logical extension of the concept of offer of judg-ment is suggested by the common admiralty practice ofdetermining liability before the amount of liability isdetermined.

RULE 71A.-CONDEDINATION OF PROPERTY

Cnoss REFERENCES

Reclamation projects, compensation for rights-of-waysee section 945b of Title 43. Public Lands.

RULES 72-.76.-ARROGATED. DEC. 4, 1967, EFFEZCTIVEJULY 1, 1968

NOTES Or ADVISORY COMMITTEE ON RULES

These I Rules 72-701 are the civil rules relating toappeal, the provisions of which, except for Rule 73(h),are transferred to and covered by the Federal Rules ofAppellate Procedure and (in the case of Rule 72) by theRules of the Supreme Court. The substance of Rule 73(hlis to be transferred to Rule 9(h).

X1. GENERAL PROVISIONS

RULE 77.-DISTRICT COURTS AND CLERKS

(d) Notice of Orders or Judgmeints.Immediately upon the entry of an order or judg-

melnt the clerk shall serve a notice of the entry bymail in the manner provided for In Rule 5 uponeach party who Is not in default for failure to appear,and shall make a note in the docket of the mailing.Such mailing is sufficient notice for all purposes forwhich notice of the entry of an order is required bythese rules; but any party may in addition serve anotice of such entry in the manner provided InRule 5 for the service of papers. Lack of notice ofthe entry by the clerk does not affect the time toappeal or relieve or authorize the court to relieve al:arty for failure to appeal within the time allowed,except as permitted In Rule 4(a) of the FederalRules of Appellate Procedure. (As amended Dec. 4,1967, eff. July 1, 1968.)

NOTES or ADVISORY COMMITTEE ON RULES1968 AMENDIIENT

rhe provi.ions of Rule 73(a) are incorporated In Rule4(a) of tile Federal Rules of Appellate Procedure.

RULE 81.-APPLICABILITY IN GENERAL

(a) 'To What Proceedings Applicable.(1) These rules do not apply to prize proceedings

in admiralty governed by Title 10, U.S.C. §§ 7651-7681. They do not apply to lroceedings in bankruptcyor proceedings in copyright under Title 17, U.S.C.,except in so far as they may be made applicablethereto by rules promulgated by the Supreme Courtof the United States. They do not apply to mentalhealth proceedings in the United States DistrictCourt for the District of Columbia.

(2) These rules are applicable to proceedings foradmission to citizenship, habeas corpus, and quowarranto, to the extent that the practice in such pro-ceedings is not set forth in statutes of the UnitedStates and has heretofore conformed to the prac-tice in civil actions.

(3) In proceedings under Title 9, U.S.C., relatingto arbitration, or under the Act of May 20, 1926, ch.347, § 9 (4i Stat. 585) , U.S.C., Title 45, § 159, relatingto boards of arbitration of railway labor disputes,these rules apply only to the extent that matters ofprocedure are not provided for in those statutes.These rules apply to proceedings to compel the givingof testimony or production of documents in accord-ance with a subpoena issued by an officer or agencyof the United States under any statute of the UnitedStates except as otherwise provided by statute or

Page 2291 Rule 81


by rules of the districL couit or by order of the courtin the proceedings.



19068 AMENDMENTThe amendments eliminate inappropriate references to

appellate procedure.

1966 AMENDMENT

See Note to Rule 1, supra.Statutory proceedings to forfeit property for violation

of the laws of the United States, formerly governed by theadmiralty rules, will be governed by the unified and sup-plemental rules. See Supplemental Rule A.

Upon the recommendation of the judges of the UnitedStates District Court for the District of Columbia, theFederal Rules of Civil Procedure are made applicable toprobate proceedings in that court. The exception withregard to adoption proceedings is removed because thecourt no longer has jurisdiction of those matters; and thewords "mental health" are substituted for "lunacy" toconform to the current characterization In the District.

The purpose of the amendment to paragraph (3) Is topermit the deletion from Aule 73(a) of the clause "unlessa shorter time is provided by law." The 10 day periodfixed for an appeal under 45 U.S.C. § 159 is the only in-stance of a shorter time provided for appeals in civilcases. Apart from the unsettling effect of the clp',,se, itis eliminated because its retention would preserve the 15day period heretofore allowed by 28 U.S.C. § 2107 for ap-peals from interlocutory decrees In admiralty, It beingone of the purposes of the amendment to make the timefor appeals In civil and admiralty cascg uniform underthe unidfed rules. See Advisory Committee's Note to sub-division (a) of Rule 7M.

RULE 82.-JuRISDICTION AN,) VENUE UNAFFECTED

These rules shall not be construed to extend orlimit the jurisdiction of the United States district

courts or the venue of actions therein. An admiral-ty or maritime claim within the meaning of Rule 9(h) shall not be treated as a civil action for the pur-poses of Title 28, U.S.C., §§ 1391-93. (As amendedFeb. 28, 1966, eff. July 1, 1966.)

NOTES OF ADvISoRy COMMIrrEE ON RULES

Title 28, U.S.C § 1301(b) provider: "A civil actionwherein jurisdiction Is not founded solely on diversityof citizenship may be brought only in the judicial districtwhee all defendants reside, except as otherwise providedby law." This provision cannot appropriately be appliedto what were formerly suits In admiralty. The rationaleof decisions holding it inapplicable rests largely on theuse of the term "civil action"; i.e., a suit in admiralty isnot a "civil action" within the statute. By virtue of theamendment to Rule 1, the provisions of Rule 2 convertsuits in admiralty Into civil actions. The added sentenceis neces,;ary to avoid an undesirable change In existinglaw with respect to v'- ',e.

RULE 86.-EFFECTIVE DATE

EFFECTIVE DATE OF 1966 AMENDMENT, TRANSMISSION TOCONGRESS; RESCISSION

Sections 2-4 of the Order of the Supreme Court, datedFeb. 28, 1966, provided:

"2. That the foregoing amendments and additions tothe Rules of Civil Procedure shall take effect on July 1.1966, and shall govern all proceedings In actions broughtthereafter and also in all further proceedings in actionsthen pending, except to the extent that in the opinion ofthe court their application In a particular action thenpending would not be feasible or would work injustice, inwhich event the former procedure applies.

"3. That the Chief Justice be, and lie hereby Is, author-ized to transmit to the Congress the foregoing amend-

ments and additions to the Rules of Civil Procedure inaccordance with the provisions of Title 28, U.S.C., §i 2072and 2073.

"4. That: (a) subdivision (c) of Rule 6 of the Rules o'lvii Procedure for the United States District Courts

pru.'n.' iw ,%d by this court on December 20, 1037, effectiveSeptember 10, 1930: (b) Rule 2 of the Rules for Practiceand Procedure under section 25 of Al Act To amend andconsolidate the Acts respecting copyright, approved March4, 1909, promulgated by this court on June 1, 1909, effectiveJuly 1, 1909; and (c) the Rules of Practice in Admiraltyand Maritime Cases, promulgated by this court on Decem-ber 6, 1920, effective Marclh 7, 1921, ae .evised, amendedand supplemented be, and they hereby are, rescinded,effective July 1. 1966."

APPENDIX OF FORMS

Forin 2.-Allegation of Jurisdiction.

(a) Jurisdiction founded on diversity of citizen-ship and amount.

Plaintiff is a (citizen of the State of Connecticut]'[corporation Incorporated under the laws of theState of ConnectitL :t having Its principal pluce of

busin.,ss in the State of Connecticutl and defendantis a corporation incorporated under the laws of theState of New York having its principal place of busi-

ness in a State other than the State of Connecticut.

The matter in controversy exceeds, exclusive of

Interest and costs, the sum of ten thousand dollars.

(b) Jurisdiction founded on the existence of a

Federal question and amount in controversy.

The action arises under I the Constitution of the

United States, Article . Section __ _; (the __

Amendment to the Constitution of the United States,

Section -___ 1; [the Act of ___.. __ Stat. _ _;U.S.C., Title - - , § 1 - I : [the Treaty of the UnitedStates (here describe the treaty) l," as hereinafter

more fully appears. The matter in controversy ex-

ceeds, exclusive of interest ard costs, tIe sum of ten

thousand dollars.

(c) Jurisdiction founded on the existence of a

question aising under particular statutes.

The action arises under the Act of .... Stat.

U.S.C., Title . . § ... as hereinafter morefully appears. (As amended April 17, 1961, eff. July

19, 1961; Feb. 28, 1966, eff. July 1, 1966.)

(e) Jurisdiction founded on the almilralty or

maritime character of the claim.

This Is a case of admiralty and maritime juris-

diction, as hereinafter more fully appears. IIf the

pleader wishes to Invoke the distinctively maritime

procedures referred to in Rule 9(h), add the follow-

ing or its substantial equivalent: This is an admiralty

or maritime claim within the meaning of Rule 9(h).]


NOTES OF ADVISORY COMMrIrEE ON RULES

Since the Civil Rules have not heretofore been applicableto proceedings in Admiralty (Rule 81(a) (1)), Form 2naturally has not contained a provision for invoking theadmiralty jurisdiction. Tie form has never purported tobe comprehensive, as making provision for all possiblegrounds of jurisdiction; but a provision for invoking theadmiralty jurisdiction is particularly appropriate as anincident of unification.

Form for natural person.2-Use the appropriate phrase or phrases. The general

allegation of the existence of a Federal question Is ineffec-tive unless the matters constituting the claim for reliefas set forth in the complaint raise a Federal question.

Rule 82 Page 2292


Certain distinctive features of the admiralty practicemust be prescrved in unification, Just as certain distinctivecharacteristica of equity ere preserved in the merger oflaw and equity In 1938. Rule 9(h) provides the devicewhereby, after unification, with its abolition of the dis-tinction between civil actions and suits in admiralty, thepleader may indicate his chrce of the distinctively mari-time proeLdurcs, an,.d uesignates those features that areI .. 'r-v . I nis form illustrates an appropriate way inwhich the pleader may invoke those procedures. Use ofthis device is not necessary if the claim is cognizable onlyby virtue of the admiralty and maritime jurisdiction, norIf the claim is within the exclusive admiralty jurisdictionof the district court.

Omission of a statement such as this from the pleadingindicates the pleader's .lsolce that the action proceed asa con centional civil action, if this is jurisdictionallypossibie, without the distinctive maritime remedies andprocedures. It should be remembered, however, that Rule9(h) provides that a pleading may be amended to add orwlf+.draw such an identifying statement subject to theprinciples stated in Rule 15.

Form 15.-Complaint for Pamages Under MerchantMarine Act.

1. Allegation of jurisdiction. [If the pleader

wishes to invoke the distinctively maritime poroce-

dures referred to in Rule 9(h), add the following or

its substantial equivalent: This is an admiralty or

malitime claim within the meaning of Rule 9(h).]2. Durhig all the times herein mentioned defend-

ant was the owner of the steamship - and

used it tn the transportation of freight for hire by

water in interstate and foreign commerce.3. During the first part of (month and year) at

plaintiff entered the employ of defendant

as tn able seaman on said steamship under seamen's

articles of customary form for a voyage from

ports to the Orient and return at a wageof - dollars per month and found, which is

equal to a wage of - dollars per month as a

shore worker.

4. On June 1, 1936, said steamship was aboutdays out of the port of - fnd was

being navigated by the master and crew on the re-

turn voyage to ports. (Here describeweather conditions and the condition of the ship

and state as in an ordinary co:.plaint for personal

injuries the negligent conduct of defendant.)

5. By reason of defendant's negligence in thus

(brief statement of defendant's negligent conduct)

and the unseaworthiness of said st, amship, plaintiff

was (here describe plaintiff's i'l,'iies).

6. Prior to these injuries, plaitiff was a strong,

able-bodied man, capable of earning and actually

earning - dollars per day. By these injuries

he has been made incapable of any gainful activity;

has suffered great physical and mental pain, and

has incurred expense In !.he amount of - dol-

lars for medicine, medical attendance, and

hospitalization.

Wherefore plaintill demands judgment against de-

fendant in the sum of - dollars and costs.



See Advisory Committee's Note to Form 2.

Form 27.-Abrogated. Dec. 4, 1967, eff. July 1, 1968.

NOTES OF ADvIsoRY COMMITTEE ON RULES

The form of notice of appeal is transferred to theFederal Rulr.d of Appellate Procedure '. Form 1.

33-3E: to-70-vol. 2- -48

SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND

MARITIME CLAIMS

RULE A.-SCOPE OF RULES

These Supplemental Rules apply to the procedurein admiralty and maritime claims within the mean-ing of Rule 9(h) with respect to the followingremedies:

(1) Maritime attachment and garnishment;(2) Actions in rem;(3) Possessory, petitory, and partition actions;(4) Actions for exoneration from or limitation

of liability.

These rules also apply to the procedure in statu-tory condemnation proceedings analogous to mari-time actions in rem, whether within the admiraltyand maritime jurisdiction or not. Except as other-

wise provided, references in these SupplementalRules to actions in rem include such analogous stat-utory condemnation proceedings.

The general Rules of Civil Procedure for theUnited States District Courts are also applicable tothe foregoing proceedings except to the extent thatthey are inconsistent with these Supplemental Rules.(Added Feb. 28, 1966, eft July 1, 1966.)

NOTES or ADvIsoRY COMMITTEE ON RULES

Certain distinctively maritime remedies must be pre-served in unified rules. The commencement of an actionby attachment or garnishment l'as heretofore been prac-tically unknown in federal jurisprudence except in ad-miralty, although the amendment of Rule 4(e) effectiveJuly 1, 193, makes available that procedure in accordancewith state law. The maritime proceeding In rem Isunique, except as it has been emulated by statute, and isclosely related to the substantive maritime law relating toliens. Arrest of the vessel or other maritime property Isan historic remedy in controversies over title or rightto possession, and in disputes among co-owners over thevessel's employment. The statutory right to limit liabil-ity is limited to owners of vessels, and has it own com-plexities. While the unified federal rules are generallyapplicable to these distinctive proceedings, certain specialrules dealing with them are needed.

Arrest of the person and imprisonment for debt are notincluded because these remedies are not peculiarly mari-time. The practice is not uniform but confo.ms to statelaw. See 2 Benedict § 286; 28 U.S.C., § 2007; FRCP 64, 09.The relevant provisions of Admiralty Rules 2, 3, and 4 areunnecessary or obsolete.

No attempt is here made to compile a complete andself-contained code governing these distinctively maritimeremedies. The more limited objective is to carry forwardthe relevant provisions of the former Rules of Practicefor Admiralty and Maritime Cases, modernized and revisedto some extent but still in the context of history andprecedent. Accordingly, these Rules are not to be con-strued as limiting or impairing the traditional power ofa district court, exercising the admiralty and maritimejurisdiction, to adapt its procedures and its remedies inthe individual case, consistently with these rules, to securethe just, speedy, and inexpensive determination of everyaction. (See Swift & Co., Packers v. Compania Colum-blana Del Caribe, S/A, 339 U.S. 684. (1950); Rule 1). Inaddition, of course, the district courts retain the power tomake local rules not inconsistent with these I -,.es. SeeRule 183; cf. Admiralty Rule 44.

RULE B.-ATTACHMENT AND GARNISHMENT: SPECIAL

PROVISIONS

(1) When Available; Complaint, Affidavit, andProcess-With respect to any admiralty or mari-

time claim in personam a verified complaint may

contain a prayer for process to attach the defendant's

Rule BPage 2293

TITLE 28, APPENIX-RULES OF CIVIL PROCEDURE

goods and chattels, or credits and effects in the handsof garnishees named inI the complaint to the ammontsued for, if the defendant shall not be found withinthe district. Such a complaint shall be accompaniedby an affidavit signed by the plainti7 or his attorneythat, to the affiant's knowledge, or to the best of hisinformation and belief, the defendant cannot befound within the district. When a verified com-plaint is supported by such an affidavit the clerkshall forthwith issue a sunmmons and process of at-tachment and garnishment. In addition, or in thealternative, the plaintiff may, pursuant to Rule 4(e),invoke the remedies provided oy state law for at-tachment and garnishment or similar seizure of thedefendant's property. Except for Rule E(8) theseSupplemental Rules do not apply to state remediesso invoked.

(2) Notice to Dcfendant.-No judgment by defaultshall be entered except upon proof, which may be byaffidavit, (a) that the plaintiff or the garnishee hasgiven notice of the action to the defendant by nmil-Ing to him a copy of the complaint, summons, andprocess of attachment or garnishment, using anyform of mail requiring a return receipt, or (b) thatthe complaint, summons, and process of attachmentor garnishment have been served on the defendantin a manner authorized by Rule 4 (d) or (), or (c)that the plaintiff or the garnishee has made diligentefforts to give notice of the action to the defendantand has been unable to do so.

(3) Answer.-(a) By Garnishee.-The garnishee shall serve his

answer, together with answers to any interrogatoriesserved with the complaint, within 20 days after serv-ice of process upon him. Interrogatories to thegarnishee may be served with the complaint withoutleave of court. If the garnishee refuses or neglectsto answer on oath as to the debts, credits, or effectsof the defendant in his hands, or any interrogatoriesconcerning such debts, credits, and effects that maybe propounded by the plaintiff, the court may awardcompulsory process against him. If he admits anydebts, credits, or effects, they shall be held in hishands or paid into the registry of the court, andshall be held in either case subject to the furtherorder of the court.

(b) By Defendat.-The defendant shall serve hisanswer within 30 days after process has been exe-cuted, whether by attachment of property or serviceon the garnishee. (Added Feb. 28, 1966, eff. July 1,1966.)

NOTES o ADVISORY COMMITTEE ON RULESoubdivision (1)

This preserves the traditional maritime remedy of at-tachment and garnishment, and carries forward the rele-vant substance of Admiralty Rule 2. In addition, or Inthe alternative, provision Is made for the use of similarstate remedies made available by the amendment of Rule4(c) effective July 1, 1963. On the effect of appearanceto defend against attachment see Rule E(8).

The rule follows closely the language of Admiralty Rule2. No change is made with respect to the property subjectto attachment. No change is made in the condition thatmakes the remedy available. The rules have never de-fined the clause, "if the defendant shall not be foundwithin the district." and no definition is attempted here.The subject seems one best left for the time being todevelopment on a case-by-case basis. Tle proposal doesshift from the marshal (on whom it now rests in theory)

to Jih plaintiff the burclen of establishing that the de-fendant cannot be found in the district.

A change in the context of the practice Is brought aboutby Rule 4(f), which will enable summons to be servedthroughout the state Instead of, as heretofore, only withinthe district. The Advisory Committee considered whetherthe rule on attachment and garnishment should be cor-respondingly changed to permit those remedies only whentle defendant cannot be found within the state and con-cluded that the remedy should not be so limited.

The effect is to enlarge the class of cases In which tileplaintiff may proceed by attachment or garnishment al-though jurisdiction of the person of the defendant maybe independently obtained. This is possible at the pres-ent time where, for example, a corporate defendant hasappointed an agent within the district to accept serviceof process but is not carrying ois activities there sufficientto subject it to jurisdiction. (Scawind Companla, S.A.v. Crescent Line, Inc., 320 F. 2d 580 (2d Cir. 1063)), orwhere, though the foreign corporation's activities In thedistrict are sufficient to subject it personally to the jurlis-diction, there Is in the district no officer on whom processcan be served (United States v. Cla. Naviera Continental,S.A., 178 F. Supp. 561, (S.D.N.Y. 1959) ).

Process of attachment or garnishment will be limitedto the district See RuleE(3)(a).

Subdivision (2)The former Admiralty Rules did not provide for notice

to the defendant in attachment and garnishment pro-ceedings. None Is required by the principles of dueprocess, since It Is assumed that the garniIhee or custo-dian of the property attached will either notify the de-fendant or be deprived of the right to plead the judgmentas a defense in all action against him by the defendant.Harris v. Balk, 198 US. 215 (1905); Pennoyer v. Neff, 95U.S. 714 (1878). Modern conceptions of fairness, how-ever, dictate that actual notice be given to persons knownto claim an interest In the property that is the subject ofthe action where that is reasonably practicable. In at-tachment and garnishment proceedings the persons whoseinterests will be affected by the judgment are identifiedby the complaint. No substantial burden is imposed onthe plaintiff by a simple requirement that he notify thedefendant of the action by mail.

In the usual case the defendant is notified of the pend-ency of the proceedings by the garnishee or otherwise,and appears to claim the property and to make his an-swer. Hence notice by mail is not routinely requiredin all cases, but only in those in which the defendant hasnot appeared prior to the time when a default judgmentis demanded. The rule therefore provides only that nodefault judgment shall be entered except upon proof ofnotice, or of inability to give notice despite diligentefforts to do so. Thus the burden of giving notice isfurther minimized.

In some cases the plaintiff may prefer to give noticeby serving process in the usual way instead of simply bymail. (Rule 4(d).) In particular, if the defendant Isin a foreign country the plaintiff may wish to utilize themodes of notice recently provided to facilitate compliancewith foreign laws and procedures (Rule 4(1)). The ruleprovides for these alternatives.

The rule does not provide for notice by publicationbecause there is no problem concerning unknown claim-ants, and publication has little utility in proportion toIts expense where the identity of the defendant Is known.

Subdivision (3)

Subdivision (a) incorporates the substance of Admi-ralty Rule 36.

The Admiralty Rules were silent as to when the gar-nishee and the defendant were to answer. See also 2Benedict ch. XXIV.

The rule proceeds on the assumption that uniformand €definite periods of time for responsive pleadings0hould be substituted for return days (see the discussionunder Rule C(G), below). Twenty days seems sufficienttime for the garnishee to answer (cf. FRCP 12(a)), andan additional 10 days should suffice for the defendant.When allowance Is made for the time required for noticeto reach the defendant this gives the defendant In at-tachment and garnishment approximately the same timethat defendants have to answer when personally served.

Rule B Page 2294


RULE C.-ACTIONS IN REM: SPECIAL PaOVISIONS

(1) When Available.-Ah, action in rem may bebrought:

(a) To enforce any maritime lien;ib) Whenever a statute of the United States pro-

vides for a maritime action in rem or a proceedinganalogous thereto.

Except as otherwise provided by law a party whomay proceed in rem may also, or in the alternative,proceed in personam against any person who maybe liable.

Statutory l)rovisions excmpting vessels or otherproperty owned or 1ossessed by or operated by orfor the United States from arrest or seizure are notaffected by this rule. When a statute so provides,an action against the United States or an instru-mentality thereof may proceed on in rem principles.

(2) Complaint.-In actions in rem the complaintshall be verified on oath or solemn affirmation. Itshall describe with reasonable particularity theproperty that is the subject of the action and statethat it is within the district or will be during thependency of the action. In actions for the enforce-ment of forfeitures for violation of any statute ofthe United States the complaint shall state the placeof seizure and whether it was on land or on navigablewaters, and shall contain such alleations as maybe required by the statute pursuant to which theaction is brought.

13) Process.-Upon the filing of the complaint theclerk shall fortlmith issue a warrant for the arrestof the vessel or other property that is the subject ofthe action and deliver it to the marshal for service.If the property that is the subject of the action con-sists in whole or in part of freight, or the proceedsof property sold, or other intangible property, theclerk shall issue a summons directing any personhaving control of the funds to show cause why theyshould not be paid into court to abide the judgment.

(4) Noticc.-No notice other than the executionof the process is required when the property that isthe subject of the action has been released in ac-cordance with Rule E(5). If the property is notreleased within 10 days after execution of process,the plaintiff shall promptly or within such time asmay be allowed by the court cause public notice ofthe action and arrest to be given in a newspaper ofgeneral circulation in the district, designated byorder of the court. Such notice shall specify thetime within which the answer is required to be filedas provided by subdivision (6) of this rule. Thisrule does not affect the requirements of notice in ac-tions to foreclose a preferred ship mortgage pursu-ant to the Act of June 5, 1920, ch. 250, § 30, asamended.

(5) Ancillary Proccss.-In any action it, rein inwhich process has been served as provided by thisrule, if any part of the property that is the subjectof the action has not been brought within the controlof the court because it has been removed or sold, orbecause it is intangible property in the hands of aperson who has not been served with process, thecourt may, on motion order any person having pos-session or control of such property or its proceedsto show cause why it should not be delivered into thecustody of the marshal or paid into court to abide

the judgment; and, after hearing, the court mayenter such judgment as law and justice may require.

(6) Claim and Answer; lnterrogatorics.-Theclaimant of property that is the subject of an actionin rein shall file his claim within 10 days after proc-css has been executed, or within such additionaltime as may be allowed by the court, and shall servehis answer within 20 days after the filing of theclaim. The claim shall be verified on oath or solennaffirmation, and shall state the interest in the prop-erty by virtue of which the clainant demands Itsrestitution and the right to defend the action. Ifthe claim is made on behalf of the person entitledto possession by an agent, bailee, or attorney, itshall state that he is duly authorized to make theclaim. At the time of answering the claimant shallalso serve answers to any interrogatories served withthe complaint. Ini actions in rem interrogatortesmay be so served without leave of court. (AddedFeb. 28, 1966, eff. July 1, 1966.)


Subdivision (1).This rule is designed not only to preserve the proceed-

Ing In rein as It now exists In admiralty cases, but to pre-serve the stibstance of Admiralty Rules 13-18. The gen-eral reference to enforcement of any maritime lien isbelieved to state the existing law, and is an llprovementover the enumeration in the former Admiralty Rules,which is repetitious and incomplete fc g , there was noreference tu general averag, ). The reference tc any mari-time lien is intended to Include liens created by statelaw which are enforceable In admiralty.

The main concern of Admiralty Rules 13-18 was withthe question whether certain actions might be broughtin rem or also, or lin the alternative, In personam. Es-sentially, therefore, these rules deal with questions of sub-stantive law, for in general an action Il rem may bebrought to enforce any maritime lien, and no action Ilipersonam may be brought when the substantive law Im-poses no personal liability.

These rules may be sunnarized as follows:1. Cases In which th.' plaintilf may proceed in rem

and /or In personam:a. Suits for seamen's wages;b. Suits by materialnen for supplies, repairs, etc.;c. Suilts for pilotage;d. Stuits for colhsion danmages;e. Suits founded on incre maritime hypothecation;f. Suits for salvage.

2. Cases in which the plaintiff may proceed only inpersonam:

a. Stits for assault and beating.3. Cases In which the plaintiff may proceed only in rem:

a. Suits on bottomry bonds.The coverage Is complete, since tl'e rules omit men-

tion of many cases Ii which the plaintilff may proceedIn rein or In personan. This revision proceeds on theprinciple that it is preferable to make a general statementas to the availability of the remedies, leaving out conclu-siois on matters of subst.utive law. Clearly it is notlnecessarw to entumerate tle cases listed under Iten 1,above, nor to try to complete the list.

The rule eliminates the provision of Admiralty Rule 15that actions for assault and beating may be brought onlyil personaml. A preliminary study fails to disclose anyreason for the rule. It is subject to so many exceptionsthat it is calculated to receive rather than to inform. Aseaman may sue i ren when lie has been beaten by a fel-low mrenber of the crew so Vicious as to render the vesselunseaworthy. rhe Rolph, 293 Fed. 269, aff'd 299 Fed. 52(9th Cir. 1923), or where the theory of tile action is thata beating by the master is a breach of the obligation uin-der the shipping articles to treat the seaman with properkindness. The David Evans, 187 Fed. 775 (D. Hawaii1911); anti a passenger may sie in rem on the theory thatthe assault is a breach of the contract of passage, Thle

Page 2295 Rule C


Western States, 159 Fed. 354 (2d Cir. 1908). To say thatun action for money damages may be brought only In per-sonam seems equivalent to saying that a maritime lienshall not exist: and that, in turn, seems equivalent to an-nouncing a rule of substantive law rather than a rule ofprocedure. Dropping the rule will leave it to the courtsto determine whether a lien exists as a matter of substan-tive law.

The specific reference to bottomry bonds Is omitted be-cause, as a matter of hornbook substantive law, there isno personal liability on such bonds.

Subdivision (2).This incorporates the substance of Admiralty Rules

21 and 22.

Subdivision (3).Derived from Admiralty Rules 10 and 37. The provision

that the warrant is to be issued by the clerk is new, butis assumed to state existing law.

There is remarkably little authority bearing on Ru e37, although the subject would seem to be an importa.itone. The rule appears oil its face to have prov!ded fora sort of ancillary process, and this may well be the casewhen tangible property, such as a vessel, is arrested, andlntangi,)le property such as freight is Incidentally in-volved. It can easily happen, however, that the onlyproperty against which the action may be brought is In-tangible, as where the owner of a vessel under charterhas a lien on subfreights. See 2 Benedict § 299 andcases cited. In such cases it would seem that the orderto the person holding the fund Is equivalent to originalprocess, taking the place of tle warrant for arrest. Thatbeing so, it would also seem that (1) there should be someprovision for notice, comparable to that given when tangi-ble property is arrested, and (2) it should not be neces-sary, as Rule 37 provided, to petition the court for issu-ance of the process, but that it should issue as of course.Accordingly the substance of Rule 37 is included in therule covering ordinary process, and notice will be requiredby Rule C(4). Presumably the rules omit any require-ment of notice in these cases because the holder of thefunds (e.g., the cargo owner) would be required oil gen-eral principles (cf. Harris v. Balk, 198 U.S. 215 (1905) tonotify his obligre (e.g., the charterer); but in actions Inrem such notice seems plainly inadequate because theremay be adverse claims to the fund (e.g., there may beliens against the subfreights for seamen's wages, etc.).Compare Admiralty Rule 9.

Subdivision (4).This carries forward the notice provision of Admiralty

Rule 10, with one modification. Notice by publicationis too expensive and Ineffective a formality to be routinelyrequired. When, as usual!y happens, the vessel or otherproperty is released on bond or otherwise there is no pointin publishing notice; the vessel is freed from the claimof the plaintiff and no other interest In the vessel can beaffected by the proceedings. If however, the vessel Is notreleased, general notice is required in order that all per-sons, including unknown claimants, may appear and beheard, and in order that the judgment In rem shall bebinding on all the world.

Subdivision (5).This incorporates the substance of Admiralty Rule 9.There are remarkably few cases dealing directly with the

rule. In The George Prescott, 10 Fed. Cas. 222 (No. 5,339)(E.D.N.Y. 1865), the master and crew of a vessel libeledher for wages, and other lienors also filed libels. Oneof the lienors suggested to the court that prior to the ar-rest of the vessel the master had removed the sails, andasked that he be ordered to produce them. He ad-mitted removing the sails and selling them, justifyingon the ground that he held a mortgage oh the vessel.He was ordered to pay the proceeds into court. Cf.United States v. The Zarko, 187 F. Supp. 371 (S.D. Cal.1960), where an armature belonging to a vessel sub-ject to a preferred ship mortgages was In possession of arepairman claiming a lien.

It is evident that, though the rule has had a limitedcareer In the reported cases, it Is a potentially importantone. It is also evident that the rule Is framed in termsnarrower than the principle that supports it. There is

no apparent reason for limiting it to ships and theirappurtenances (2 Benedict § 299). Also, the referenceto "third parties" In the existing rule seems unfortunate.In The George Prescott, the person who removed andsold the sails was a plaintiff iii the action, and reliefagainst him was just as necessary as if he had beena stranger.

Another situation In which process of this kind wouldseem to be useful is that in which the principal propertythat is the subject of the action is a vessel, but her pend-Ing freight Is Incidentally involved. The warrant ofarrest, and notice of its service, should be all that is re-quired by way of original process and notice; ancillaryprocess without notice should suffice as to the incidentalintangibles.

The distinction between Admiralty Rules 9 and 37 isnot at once apparent, but seems to be this: Where theaction was against propei .y that could not be seized bythe marshal because it is il.tangible, the original processwas required to be similar tW that issued against a gar-nishee, and general notice was required (though not pro-vided for by the present rule: cf. Advisory Committee'sNote to Rule C(3)). Under Admiralty Rule 9 propertyhad been arrested and general notice had been given, butsonic of the property had been removed or for sonic otherreason could not be arrested. Here no further notice wasnecessary.

The rule also makes provision for this kind of situa-tion: The proceeding Is against a vessel's pending freightonly; summons has been served on the person supposedlyholding the funds, and general notice has been ghien: itdevelops that another person holds all or part of thefunds. Ancillary process should be available here withoutfurther notice.

Subdivision (0).Adherence to the practice of return days seems unsat-

isfactory. The practice valies significantly from districtto district. A uniform rule should be provided so thatany claimant or defendant can readily determine whenlie is required to file or serve a claim or answer.

A virtue of the return-day practice is that It requiresclaimants to come forward and identify themselves at anearly stage of the proceedings-before they could fairlyie required to answer. The draft is designed to preservethis feature of the present practice by requiring earlyfiling of the claim. The time schedule contemplated inthe draft Is closely comparable to the present practice inthe Southern District of New York, where the claimantIas a minimum of 8 days to claim and three weeks there-after to answer.

This rule also incorporates the substance of AdmiraltyRule 25. The present rule's emphasis on "the true andbona fide owner" is omitted, since anyone having theright to possession can claim (2 Benedict § 324).

RULE D.-POSSESSORY, PETITORY AND PARTITIONACTIONS

In all actions for possession, partition, and to trytitle maintainable according to the course of theadmiralty practice with respect to a vessel, in allactions so maintainable with respect to the posses-sion of cargo or other maritime property, and in allactions by one or more part owners against theothers to obtain security for the return of the vesselfrom any voyage undertaken without their consent,or by one or more part owners against the othersto obtain possession of the vessel for any voyage ongiving security for its safe return, the process shallbe by a warrant of arrest of the vessel, cargo, or

other property, and by notice in the manner pro-

vided by Rule B(2) to the adverse party or parties.

(Added Feb. 28, 1966, eft. July 1, 1966.)

NOTES OF ADVISORY COMMITTEE ON RULESThis carries forward the substance of Admiralty Rule

19.Rule 19 provided the remedy of arrest in controversies

involving title and possession In geneiral. See The Tilton,

Rule D Page 2296

TIT.LE 28, APPENDIX.-RULES OF CIVIL PROCEDURE

23 Fed. Cas, 1277 (No. 14,054) (C.C.D. Mass. 1830). In ad-dition it provided that remedy in controversies between co-owners respecting the employment of a vessel. It did notdeal comprehensively with controversies between co-owners, omitting the remedy of partition. Presumablythe omission Is traceable to the fact that, when the ruleswere originally promulgated, concepts of substantive law(sometimes stated as concepts of jurisdiction) denied theremedy of partition except where the parties in disagree-ment were the owners of equal shares. Ste The Steam-boat Orleans, 36 U.S. (I1 Pet.) 175 (1837). The SupremeCourt has now removed any doubt as to the jurisdictionof the district courts to partition a vessel, and has heldin addition that no fixed principle of federal admiraltylaw limits the remedy to the case of equal shares. Mad-ruga v. Superior Court, 340 U.S. 556 (1954). It Is there-fore appropriate to Include a reference to partition in therule.

RULE E.-AcTIONS IN REM AND QUASI IN REss:GENERAL PROVISIONS

(1) Applicability.-Except as otherwise provided,this rule applies to actions in personam with processof maritime attachment and garnishment, actionsin rem, and petitory, possessory, and partition ac-tions, supplementing Rules B, C, and D.

(2) Complaint; Security.-(a) Complaint. In actions to which this rule is

applicable the complaint shall state the circum-stances from which the claim arises with such par-ticularity that the defendant or claimant will beable, without moving for a more definite statement,to commence an investigation of the facts and toframe a responsive pleading.

(b) Security for Costs. Subject to the provisionsof Rule 54 (d) and of relevant statutes, the court mayon the filing of the complaint or on the appearanceof any defendant, claimant, or any other party, orat any later time, require the plaintiff, defendant,claimant, or other party to give security, or addi-tional security, in such sum as the court shall directto pay all costs and expenses that shall be awardedagainst him by any interlocutory order or by the finalJudgment, or on appeal by any appellate court.

(3) Process.&-(a) Territorial Limits o1 Effective Service. Proc-

ess in rem and of maritime attachment and garnish-ment shall be served only within the district.

(b) Issuance and Delivery. Issuance and deliveryof process in rem, or of maritime attachment andgarnishment, shall be held in abeyance if the plain-tiff so requests.

(4) Execution of Process; Marshal's Return;Custody of Property.-

(a) In General. Upon issuance and delivery ofthe process, or, in the case of summons with processof attachment and garnishment, when it appearsthat the defendant cannot be found within the dis-trict, the marshal shall forthwith execute the proc-ess in accordance with this subdivision (4), makingdue and prompt return.

(b) Tangible Property. If tangible property is tobe attached or arrested, the marshal shall take itinto his possession for safe custody. If the characteror situation of the property is such that the takingof actual possession is impracticable, the marshalshall execute the process by affixing a copy thereofto the property in a conspicuous place and by leavinga copy of the complaint and process with the personhaving possession or his agent. In furtherance of

his custody of any vessel the marshal is authorized tomake a written request to the collector of customsnot to grant clearance to such vessel until notified bythe marshal or his deputy or by the clerk that thevessel has been released in accordance with theserules.

(c) Intangible Property. If intangible propertyis to be attached or arrested the marshal shall exe-cute the process by leaving with the garnishee orother obligor a copy of the complaint and processrequiring him to answer as provided in Rules B(3) (a)and C(6) ; ori he may accept for payment into theregistry of the court the amount owed to the extentof the amount claimed by the plaintiff with interestand costs, in which event the garnishee or otherobligor shall not be required to answer unless aliasprocess shall be served.

(d) Directions with Respect to Property in Cus-tody. The marshal may at any time apply to thecourt for directions with respect to property thathas been attached or arrested, and shall give noticeof such application to any or all of the parties asthe court may direct.

(ce) Expenses o1 Seizing and Keeping Property;Deposit. These rules do not alter the provisions ofTitle 28, U.S.C., § 1921, as amended, relative to theexpenses of seizing and keeping property attachedor arrested and to the requirement of deposits tocover such expenses.

(5) Release of Property.-(a) Special Bond. Except in cases of seizures for

forfeiture under any law of the United States, when-ever process of maritime attachment and garnish-ment or process in rem is issued the execution of suchprocess shall be stayed, or the property released, onthe giving of security, to be approved by tie court orclerk, or by stipulation of the parties, conditioned toanswer the judgment of the court or of any appellatecourt. The parties may stipulate the amount andnature of such security. In the event of the in-ability or refusal of the parties so to stipulate thecourt shall fix the principal sum of the bond or stipu-lation at an amount sufficient to cover the amountof the plaintiff's claim fairly stated with accruedinterest and costs; but the principal sum shall in noevent exceed (i) twice the amount of the plaintiff'sclaim or (i) the value of the property on due ap-praisement, whichever is smaller. The bond orstipulation shall be conditioned for the payment ofthe principal sum and interest thereon at 6 per centper annum.

(b) General Bond. The owner of any vessel mayfile a general bond or stipulation, with sufficientsurety, to be approved by the court, conditioned toanswer the judgment of such court in all or anyactions that may be brought thereafter in such courtIn which the vessel is attached or arrested. There-upon the execution of all such process against suchvessel shall be stayed so long as the amount securedby such bond or stipulation is at least double theaggregate amount claimed by plaintiffs in all actionsbegun and pending in which such vessel has beenattached or arrested. Judgments and remedies maybe had on such bond or stipulation as if a specialbond or stipulation had been filed in each of suchactions. The district court may make necessary

Page 2297 Rule E


orders to carry this rule into effect, particularly asto the giving of proper notice of any action againstor attachment of a vessel for which a general bondhas been filed. Such bond or stipulation shall beindorsed by the clerk with a minute of the actionswherein process is so stayed. Further security maybe required by the court at any time.

If a special bond or stipulation is given in a par-ticular case, the liability on the general bond or stipu-lation shall cease as to that case.

(c) Release by Consent or Stipulation; Order ofCourt or Clerk: Costs. Any vessel, cargo, or otherproperty in the custody of the marshal may be re-leased forthwith upon his acceptance and approvalof a stipulation, bond, or other security, signed bythe party on whose behalf the property is detainedor his attorney and expressly authorizing such re-lease, if all costs and charges of the court and itsofficers shall have first been paid. Otherwise noproperty in the custody of the marshal or other offi-cer of the court shall be released without an orderof the court; but such order may be entered as ofcourse by the clerk, upon the giving of approvedsecurity as provided by law and these rules, or uponthe dismissal or discontinuance of the action; butthe marshal shall not deliver any property so releaseduntil the costs and charges of the officers of the courtshall first have been poid.

(d) Possessory, Petitory, and Partition Actions.The foregoing provisions of this subdivision (5) donot apply to petitory, possessory, and partition ac-tions. In such cast, the property arrested shall bereleased only by ordei of the court, on such termsand conditions and on the giving of such security asthe court may require.

(6) Reduction or Impairment o1 Security.-Whenever security is taken the court may, on motionand hearing, for good cause shown, reduce theamount of security given; and if the surety shall beor become insufficient, new or additional sureties maybe required on motion and hearing.

(7) Security on Counterclaim .- Whenever thereis asserted a counterclaim arising out of the sametransaction or occurrence with respect to which theaction was originally filed, and the defendant orclaimant in the original aLtion has given security torespond in damages, any pl:intiff for whose benefitsuch security has been given shall give security inthe usual amount and form to respond in damagesto the claims set forth in such counterclaim, Lalessthe court, for cause shown, shall otherwise direct;and proceedings on the original claim ,hall be stayeduntil such security is given, unless the court other-wise directs. When the United States or a corporateinstrumentality thereof as defendant is relieved bylaw of the requirement of giving security to respondin damages It shall nevertheless be treated for thepurposes of this subdivision E(7) as if it had givensuch security if a private person so situated wouldhave been required to give it.

(8) Restricted Appearance.-An appearance to de-fend against an admiralty and marithie claim withrespect to which there has issued process in rem,or process of attachment and garnishment whetherpursuant to these Supplemental Rules or to Rule4(e), may be expressly restricted to the defense of

such claim, and in that event shall not constitute anappearance for the purposes of any other claim withrespect to which such process is not available or hasnot been served.

(9) Disposition of Property; Sales.-(a) Actions for Forfeitures. In any action in rem

to enforce a forfeiture for violation of a statute ofthe United States the property shall be disposed ofas provided by statute.

(b) Interlocutory Sales. If property that has beenattached or arrested is perishable, or liable to deteri-oration, decay, or injury by being detained in custodypending the action, or if the expense of keeping theproperty is excessive or disproportionate, or If thereIs unreasonable delay in securing the release of prop-erty, the court, on application of any party or of themarshal, may order the property or any portionthereof to be sold; and the proceeds, or so muchthereof as shall be adequate to satisfy any judgment,may be ordered brought into court to abide the eventof the action: or the court may, on motion of thedefendant or claimant, order delivery of the pro,.-erty to him, upon the giving of security in accord-ance with these rules.

(c) Sales; Proceeds. All sales of property shallbe made by the marshal or his deputy, or otherproper officer assigned by the court %.here themarshal is a party in interest; and the proceeds ofsale shall be forthwith paid into the registry of thecourt to be disposed of according to law. (AddedFeb. 28, 1966, eft. July 1, 1966.)

NoTEs Or ADVISORY COMMITTER ON RULES

Subdivisions (1), (2).Adapted from Admiralty Rule 24. The rule is based

on the assumption that there is no more need for securityfor costs in maritime personal actions than In civil casesgenerally, but that there is reason to retain the require-ment for actions in which property is seized. As to pro-ceedings for limitation of liability see Rule F(1).

Subdivision (3).The Advisory Committee has concluded for practical

reasons that process requiring seizure of property shouldcontinue to be served only within the geographical limitsof the district. Compare Rule B(1), continuing the condi-tion that process of attachment and garnishment may beserved only if the defendant is not found within thedistrict.

The provisions of Admiralty Rule 1 concerning the per-sons by whom process is to be served will be supersededby FRCP 4(c).

Subdhision (4).This rue is intended to preserve the provisions of Ad-

miralty Rules 10 and 36 relating to execution of process,cuslody of property, seized by the marshal, and the mar-shal's return. It is also designed to make express provi-sion for matters not heretofore covered.

The provision relating to cicarance in subdivision (b)is suggested by Admiralty Rule 44 of the District ofMaryland.

Subdivision (d) is suggested by English Rule 12, Order75.

28 U.S.C. § 1921 as amended in 1962 contains detailedprovisions relating to tile expenses of seizing and preserv-ing property attached or arrested.

Subdivision (5).In addition to Admiralty Rule 11 (see Rule E(9), the

release of property seized on process of attachment or inrem was dealt with by Admiralty Rules 5, 6, 12, and 57,and 28 U.S.C., § 2464 (formerly Rev. Stat. §941). Therule consolidates these provisions and makes them uni-formly applicable to attachment and garnishment andactions in rem.

Rule E Page 2298


The rule restates the substance of Admiralty Rule 5.Admiralty Rule 12 dealt only with ships arrested oil inren process. Since the same ground appears to be coveredmore generally by 28 U.S.C., § 2464, the subject matter ofRule 12 Is omitted. The ubstnnce of Admiralty Rule57 Is retained. 28 U.S.C., § 2464 is incorporated withchanges of terminology, and with a substantial change asto the amount of the bond. See 2 Benedict 395 n. la; TheLotosland, 2 F. Supp. 42 (S.D.N.Y. 1033). The provisionfor general bond Is enlarged to Include the contingencyof attachment as well as arrest of the vessel.

Subdivision (6).Adapted from Admiralty Rule 8.

Subdivision (7).Derived from Admiralty Rule 50.Title 40, U.S.C., § 783 extends the principle of Rule 50

to the Government when stied under the Public VesselsAct, presumably ol the theory that the credit of theGovernment Is tile equivalent of the best security. Therule adopts this principle and extends it to all cases inwhich the Government Is defendant although the Suitsin Admiralty Act contains no parallel provisions.

Subdivision (8).Under the liberal joinder provisions of unified rules the

plaintiff will be enabled to join with maritime actionsin rem, or maritine actions in personam with process ofattachment and garnishment, claims with respect towhich such process Is not available, including nonmarl-time claims. Unification should not, however, have theresult that, In order to defend against an admiralty andmaritime claim with respect to which process in rein orqausi ill rein has been served, the claimant or dcfendantmust fubject himself personally to the jurisdiction of thecourt with reference to other claims with respect to whichsuch process Is not available or has not been served, espe-cially when such other claims are nonnaritime. So faras attachment and garnishment are concerned this princi-ple holds true whether process is issued according toadmiralty tradition and the Supplemental Rules or ac-cording to Rule 4(e) as incorporated by Rule B(1).

A similar problem may arise with respect to civil actionsother than admiralty and maritime clains within themeaning of Rule Bi1h). That is to say, Il an ordinarycivil action, whether nmaritine or not, there may be JoinedIn one action claims with respect to wlich process ofattachment ald garnislnent Is available under state lawand Rule 4(e) and claims with respect to which suchprocess is not available or has not been served. Thegeneral Rules of Civil Procedure do not specify whetheran appearance In such cases to defend the claim withrespect to which process of attachment and garnishmenthas Issued is an appearance for the purposes of the otherclaims. In tlat context the question has been consideredbest left to case-by-case development. Where admiraltyand maritime claims within the meaning of Rule 9(h)are concerned, however. it seems Important to Include aspecific provision to avoid an unfortunate and unin-tended eifr.ct of unification. No inferences whatever asto the effect of sucil all appearance in an ordinary civilaction should be drawn from tile specific provision hereand the absence of such a provision in the general Rules.Subdivision (9).

Adapted from Admiralty Rules 11, 12, and 40. Sub-division (a) Is necessary because of various provisions asto disposition of property in forfeiture proceedings. Iladdition to particular statutes. note tile provisions of28 U.S.C., §§ 2461-65.

The provision of Admiralty Rule 12 relating to tlin-re, sonable delay was limited to ships but should havebroader application. See 2 Benedict 404. Similarly, bothRules 11 and 12 were limited to actions in rem, butshould equally apply to attached property.

RULE F.-LMITATION OF LIABILITY

(1) Time for Filing Complaint: Security.-Notlater than six months after his receipt of a claimin writing, any vessel owner may file a complaintin the appropriate district court, as provided in sub-division (9) of this rule, for limitation of liability

pursuant to statute. The owner (a) shall depositwith the court, for the benefit of claimants, a sumequal to the amount or value of his interest in thevessel and pending freight, or approved securitytherefor, and in addition such sums, or approved;ccurity therefor, as the court may from time totime fix as necessary to carry out the provisions ofthe statutes as amended; or (b) at his option shalltransfer to a trustee to be appointed by the court,for the benefit of claimants, his interest in thevessel and pending freight, together with such sums,or approved security therefor, as the court may fromtime to time fix as necessary to carry out the pro-visions of the statutes as amended. The plaintiffshall also give security for costs and, if he elects togive security, for interest at the rate of 6 per centper alnum from the date of the security.

Q2) Corn plaint.-The complaint shall set forth thefacts on the basis of which the right to limit liabil-ity is asserted, and all facts necessary to enable thecourt to determine the amount to which the owner'sliability shall be limited. The complaint may de-mnand exoneration from as well as limitation ofliability. It shall state the voyage, if any, on whichtile demands sought to be limited arose, with thedate and place of its termination; the amount of alldemands including all unsatisfied liens or claims oflien, in contract or in tort or othervise, arising onthat voyage, so far as known to the plaintiff, andwhat actions and proceedings, if any, are pendingLhereo; whether the vessel was damaged, lost, orabandoned, and, if so, when and where; the value ofthe vessel at ihe close of the voyage or, in case ofwreck, the value of hei' wreckage, strippings, orproceeds, if any, and where and in whose possessionthey are; and the amount of any pending freight re-covered or recoverable. If the plaintiff elects totransfer his interest in the vessel to a trustee, thecomplaint must further show any prior paramountliens thereon, and what voyages or trips, if any, shehas made since the voyage or trill on which theclaims sought to be limited arose, and any existingliens arising upon any such subsequent voyage ortrip, with the amounts and causes thereof, and thenames and addresses of the lienors, so far as known;and whether the vessel sustained any injury uponor by reason of such subsequent voyage or trip.

(3) Claims Against Owner; Injunction.-Upon

compliance by the owner with the requirements ofsubdivision 11) of this rule all claims and proceed-ings against the owner or his propelty with respectto the matter in question shall cease. On applica-tion of the plaintiff the court shall enjoin tile fur-ther prosecution of any action or proceeding againstthe plaintiff or his property with respect to anyclaim subject to limitation in the action.

t4) Notice to Claimants.-Upon the owner's com-pliance with subdivision 41) of this rule the courtshall issue a notice to all persons asserting claimswith respect to which the complaint seeks limita-tion, admonishing them to file their respectiveclaims with the clerk of the court and to serve on theattorneys for the plaintiff a copy thereof on or be-fore a date to be named in the notice. The dateso fixed shall not be less than 30 days after issuance

Page 229D Rule F

Rule F TITLE 28, APPENDIX.-RULES OF PRACTICE, ADMIRALTY AND MARITIME Page 2300

o0 the notice. For cause shown, the court may en-large the time within which claims may be filed.The notice shall be published in such newspaper ornewspapers as the court may direct once a week forfour successive weeks prior to the date lixed for thefiling of claims. The plaintiff not later than theday of second publication shall also mail a copy ofthe notice to every person known to have made anyclaim against the vessel or the plaintiff arising outof the voyage or trip on which the claims sought tobe limited arose. In cases involving death a copyof such notice shall be mailed to the decedent at hislast known address, and also to any person whoshall be known to have made any claim on accountof such death.

(5) Claims and Anser.-Claims shall be filedand served on or before the date specified in thenotice provided for in subdivision (4) of this rule.Each cla!rn shall specify the facts upon which theclaimant relies in support of his claim, the itemsthereof, and the dates on which the same accrued.If a claimant desires to contest either the right toexoneration from or the right to limitation of lla-blity he shall file and serve an answer to the com-plaint unless his claim has included an answer.

(6) Information to be Given Claimants.-Within30 days after the date specified in the notice forfiling claims, or within such time as the court there-after may allow, the plaintiff shall mail to the at-torney for each claimant (or if the claimant has noattorney to the claimant himself) a list setting forth(a) the name of each claimant, (b) the name andaddress of his attorney (if he is known to have one),(c) the nature of his claim, i.e., whether propertyloss, property damage, death, personal injury, etc.,and (d) the amount thereof.

(7) Insufficiency of Fund or Security.-Anyclaimant may by motion demand that the fundsdeposited in court or the security given by the plain-tiff be increased on the ground that they are lessthan the value of the plaintiff's interest In the ves-sel and pending freight. Thereupon the court shallcause due appraisement to be made of the value ofthe plaintiff's interest in the vessel and pendingfreight; and if the court finds that the deposit orsecurity is either insufficient or excessive it shallorder its increase or reduction. In like manner anyclaimant may demand that the deposit or securitybe increased on the ground that it is insufficient tocarry out the provisions of the statutes relating toclaims in respect of loss of life or bodily injury; and,after notice and hearing, the court may similarlyorder that the deposit or security be increased orreduced.

(8) Objections to Claims: Distribution of Fund.-Any interested party may question or controvert anyclaim without filing an objection thereto. Upondetermination of liability the fund deposited or se-

cured, or the proceeds of the vessel and pendingfreight, shall be divided pro rata, subject to all rele-vant provisions of law, among the several claimantsin proportion to the amounts of their respectlv,claims, duly proved, saving, however, to all partiesany priority to which they may be legally entitled.

(9) Venue; Transer.-The complaint shall befiled in any district in which the vessel has beenattached or arrested to answer for any claim withrespect to which the plaintiff seeks to limit liability;or, if the vessel has not been attached or arrested,then in any district in which the owner has beensued with respect to any such claim. When thevessel has not been attached or arrested to answerthe matters aforesaid, and suit has not been com-menced against the owner, the lroceedings may behad in the district in which the vessel may be, butif the vessel is not within any district and no suithas been commenced in any district, then the com-plaint may be filed in any district. For the con-venience of parties and witnesses, in the interest ofjustice, the court may transfer the action to anydistrict; if venue is wrongly laid the court shall dis-miss or, if It be In the interest of Justice, transferthe action to any district In which it could havebeen brought. If the vessel shall have been sold,the proceeds shall represent the vessel for the pur-poses of these rules. (Added Feb. 28, 1966, eff. July1,1966.)

NOTTS OF ADVISORY COMMrrTEE ON RuLEs

Subdivision (1).The amendments of 1930 to the Limitation Act super-

seded to some extent the provisions of Admiralty Rule 51,erpecially with respect to the time of filing the complaintand with respect to security. The rule here incorporatesin substance the 1936 amendment of the Act (46 U.S.C.,§ 185) with a slight modification to make it clear that thecomplaint may be filed at any time not later than sixmonths after a claim has been lodged with the owner.

Subdivision (2).Derived from Admiralty Rules 51 and 53.

Subdivision (3).This Is derived from the last sentence of 36 U.S.C. 1185

and the last paragraph of Admiralty Rule 51.Subdivision (4).

Derived from Admiralty Rule 51.Subdivision (5).

Derived from Admiralty Rules 52 and 53.Subdivision (6).

Derived from Admirr.iy Rule 52.Subdivision (7).

Derived from Admiralty Rule 52 and 46 U.S.C., J 185.Subdivision (8).

Derived from Admiralty Rule 52.Subdivision (9).

Derived from Admiralty Rule 54. The provilion fortransfer Is revised to conform closely to the language of28 U.83.C. §i 1404(a) and 1406(a), though it retains theexisting rule's provision for transfer to any district forconvenience. The revision also makes clear what hasbeen doubted: that the court may transfer if venue Iswrongly laid.

RULES OF PRACTICE IN ADMIRALTY AND MARITIME CASES

Rules 1-60. Rescinded. Feb. 28, 1966, eff. July 1, to unify the civil and admiralty procedure, together with1966. the Supplemental Rules for Certain Admiralty and Mari-

NorEs OF ADVISORY COMMrrTEE ON RULES time Claims, completely supersede the Admiralty Rules.The amendments to the Federal Rules of Civil Procedure Accordingly, the latter are rescinded.

TITLE 28, APPENDIX.-RULES OF COURT OF CLAIMS

RULES OF TIlE COURT OF CLAIMS OF THE UNITED STATES

REVISED SEPTEMBER 1, 1969

As AMENDED TO DECEMBER 31, 1969

I. RULES; COURT; COMMISSIONERSRule

1. Scope of Rules; Construction; Effective Date.(a) Scope and construction.(b) Effective date.

5. Name and Seal of the Court.(a) Name.(b) Seal.

6. Court Always Open; Term.(a) Always open.(b) Annual term.

7. Sittings by the Court.12. The Court and Commissioners.

(a) Delegations of authority to commissloners.(b) Proceedings before commissioners.(c) When "court" includes commissioners.(d) Requests for review; action.

13. Authority of Commissioners.(a) General.(b) Responsibility.(c) Discretion of commissioner.(d) Review by the court.(e) Misconduct before commissioner.

14. Reference of Cases to Commissioners.(a) Purpose of reference.(b) Duration of reference.

(1) Termination.(2) Suspension.

(c) Substitution of commissioner.(d) Disqualification.

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

21. Commencement of Suit.(a) Petition; filing and fee.(b) Petition; date of filing.(c) Petition; form; content; duplication; copies.

22. Service of Petition.(a) Service upon the United States.(b) Copies.

23. Service of Other Papers.24. Proof and Date of Service.25. Time.

(a) Computation.(b) Enlargement.(c) Additional time after service by mail.(d) When time begins to run.(e) Unaffected by expiration of tri.

III. PLEADINGS31. Pleadings Allowed.

(a) Pleadings.(b) Demurrers, pleas, etc., abolished.

32. General Rules of Pleading.(a) Pleading to be concise aiid direct; consis-

tency.(b) Construction of pleadings.

33. Pleading Special Matter,(a) Capacity.(b) Fraud; mistake; caprice; condition of mind.(c) Conditions precedent.(d) Judgment.(e) Time and place.

34. Form of Pleadings.(a) Caption; names of parties; designation;

paging.(b) Paragraphs; separate statements.(c) Adoption by reference; exhibits.

35. Content of Petition.(a) Statement of facts.(b) Action by other tribunal or body.(c) Citations of statutes, regulations, orders.(d) Contracts or treaties.(e) Patent suits.(f) Ownership of claim; assignment.(g) Demand for judgment.(h) Addresses and signatures.

Rule36. Petition Pending Motion for Discovery.37. Defenses.

(a) Form of denials.(b) Affirmative defenses.(c) Effect of failure to deny.

38. Defenses and Objections; When and How Presented.(a) Time for answer and reply.(b) Defenses; how presented.(c) Motion for judgment on the pleadings.(d) Preliminary hearings.(e) Motion for more definite statement.(f) Motion to strike.(g) Consolidation of defenses.(h) Waiver of defenses.

39. Amended and Supplemental Pleadings.(a) Amendments.(b) Amendments to conform to the evidence.(c) Relation back of amendments.(d) Supplemental pleadings.(e) Form and filing.

40. Counterclaims.(a) Compulsory counterclaim.(b) Permissive counterclaim.(c) Extent of counterclaim.(d) Counterclaim maturing or acquired after

pleading.(e) Omitted counterclaim.(f) Form and content.

41. Thlrd-Party Practice.(a) When third parties may be brought in.(b Content of motion for notice to third parties.(C) Issuance and service of notice.(d) Service of notice by publication.(e) Content of motion for summons to third

parties.(f) Issuance and service of sn'ra,nons.(g) Pleadings of third parties.

42. Signing of Papers.(a) Parties other than the United States.(b) Tue United States.(c) Effect of signature.

IV. MOTIONS

51. Motions and Related Papers.(a) Content of motions.(b) Form; signing; duplication; copies.(c) Briefs; memoranda; affidavits.(d) Notice of action.

52. Motions; Dispositive and Procedural; Objections andResponses.

(a) Dispositive motions defined.(b) Time for filing; papers combined.

(1) Objections and responses to dispos.itive motions.

(2) Reply briefs.(c) Procedural motions defined.(d) Time for filing objections or responses to

procedural motions.(e) Time for filing reply.

53. Reference of Procedural Motions.(a) Reference to commissioner.(b) Action by commissioner.

(1) Order.(2) Requirements for procedural mo-

tions.(3) Review by the court.

54. Reference of Dispositive Motions.(a) Reference to commissioner.(b) Action by commissioner.

(1) Recommendation by commissioner.,(2) Notice of commissioner's recommen-

dation.(3) Review by the court.

55. Consideration of Motions by Commissioner.

Page 2301

TITLE 28, APPENDD.-RLLES OF COURT OF CLAIMS

Rule56. Mottons Not Referred to Commissioners.

(a) Motions under Rules 151 and 152.(b) Procedural motions in certain situations.

57. Secretary to the Court or Clerk Authorized To Actoun Certain Motions.

(a) Motions enumerated.(b) Maximum time allowable.(c) Denial of motions for enlargement.(d) Authority restricted.(e) Review by the court.

V. PARTIES

61. Partles; Capacity.(a) Real party in interest.(b) Capacity to sue or be sued.(c) Infants or incompetent persons.

62. Necessary Joinder of Parties.(a) Necessary Joinder.(b) Names of omitted persons and reasons for

nonjoinder to be pleaded.63. Permissive Joinder of Parties.

(a) Permissive Joinder.(b) Separate trials.

64. Mlsjoinder of Parties; Dropping or Adding Parties;Severance.

65. Intervention.(a) When permitted.(b) Procedure.

66. Substitution of Parties.(a) Death.(b) Incompetency.(c) Transfer of interest.

VI. DISCOVERY

71. General Provisions Governing Discovery.(a) Discovery methods.(b) S( ape of discovery.

(1) In general.(2) Experts.

(c) Initiation of discovery.(d) Stipulation regarding discovery procedure.

(c) Leave or order.(f) Protective orders.(g) Supplementation of responses.

72. Admissions.(a) Motion.(b) Objections to requests.(c Request for admissions; content.(d) Response to request for admissions.

73. Interrogatories to Parties.(a) Motion.(b) Objections to interrogatories.(c) Identification of parties.(d) Response to interrogatories.(e) Scope and ul.e.(f ) Option to produce business records.

74. Production of Documents and Things and EntryUpon Land for Inspection and Other Purposes.

(a) Motion for order.jb) Issuance of order.(c) Relation to admissible evidence.(d) Scope of order.(e) Designation of department or agency.

75. Calls.(a) Issuance.(b) Refusal of compliance.

76. Failure To Comply With Order for Discovery; Sanc-tions.

(a By deponent.(b) By a party in relation to requests for ad-

missions, interrogatories, or the produc-tion of documents or things.

(c) Evasive or incomplete answers or responses.

VII. DEPOSITIONS

81. Depositions; Leave.(a) Leave required.(b) Motion for leave.(c) Objections or responses.

Rule81. Depositiolis; Leave.-Continued

(d) Action on motion for leave.(1) General.(2) Evidentlary deposition.(3) Discovery deposition.(4) Deposition in relation to summary

judgment.82. Attendance of Witnesses.

(a) Subpoenas.(b) Scope of examination.

83. Scope and Effect of Depositions.(a) Examination and cross-examination(b) Scope of examination.(c) Effect of taking deposition.

84. Depositions Upon Oral Examination.(a) Notice of examination.

(1) Filing and service.(2) Waiver of notice.(3) Content of notice.

(b) Submission to witness; changes; signing.85. Depositions Upon Written Questions.

(a) Written questions; notice of; filing; service.(b) Officer to take responses and prepare record.(c) Notice of filing.

86. Depositions Pending Certiorari.(a) When allowed.(b) Motion.(c) Action on motion.

87. Orders for the Protection of Parties and Deponents.88. Use of Depositions as Evidence.

(a) General.(b) Evidentlary deposition.(c) Discovery deposition.(d) Effect of using deposition.(e) Substitution of parties.

89. Persons Before Whom Depositions May Be Taken.(a) Within the United States.(b) In foreign countries.(c) Disqualification for interest.(d) Fees of officer taking deposition.

90. Record of Examination; Exhibits; Filing; Return.(a) Record of testimony.

(1) Oath; transcription.(2) ObjeLtions.(3) Use of written questions.

(b) Exhibits.(c) Certification by officer.(d) Filing by officer.(e) Return of other depositions.

91. Effect of Errors and Irregularities in Depositions.(a) As to notice.(b) As to disqualification of officer.(c) As to taking of deposition.(d) Service of objections.(e) As to completion and return of deposition.

92. Refusal of Deponent To Testify; Consequences.(a) Refusal to answer.(b) Failure tc give deposition or to comply with

order.(1) Contempt.(2) Other consequences.

(c) Failure to respond to letters rogatory.

VIII. SUMMARY JUDGMENT; DISMISSALS

101. Summary Judgment.(a) For claimant.(b) For defending party.(c) When leave is required.(d) Motion and proceedings thereon.(e) Case not fully adjudicated on motion.(f) Forms of affidavits; further testimony.(g) When affidavits are unavailable(h) Affidavits made in bad faith.

102. Dismissal of Actions.(a) Voluntary dismissal; effect thereof.

(1) By plaintiff; by stipulation.(2) By order of court.

(b) Involuntary dismissal; effect thereof.(c) Insufficiency of evidence.(d) Effect of counterclaim.(e) Dismissal of counterclaim, cross-claim, or

third-party claim.

Page 2302


IX. PRETRIAL PROCEDURESRule111. Pretrial Orders.

(a) General,(b) Parties to confer.(c) Admissions.(d) Accounting.(e) Miscellaneous schedules.(f) Use of accounting schedules and other sub-

missions.(g) Submissions.(h) Preliminary pretrial memorandum.

112. Pretrial Conferences.(a) Scheduling of pretrial conference.(b) Authority of attorneys.

113. Pretrial Memorandum or Order.114. Compliance and Noncompliance.

(a) Pretrial rules liberally construed.(b) Effect of noncompliance.

X. INCIDENTS OF TRIALS121. Incidents of Trials Before Commissioners.

(a) Witnesses; evidence.(b) Directing witness to answer.(c) Contempt.(d) Exceptions unnecessary.(e) Recommendation for dismissal of action.

122. Reporting Arrangements; Return of Transcript.(a) Record of proceedings.(b) Reporter; control; oath.(cl Preparation of transcript a id exhibits.(d) Return of transcript and exhibits.

123. Subpoenas.(a) Form; issuance.(b) Subpoenas for attendance of witnesses at

scheduled hearing or trial.(c) Subpoena for production of documentary

evidence.(d) Subpoena for taking depositions; place of

exainination.(e) Service.(f) Contempt.

124. Proof of Official Record,(a i Authentication.

(1) Domestic.(2) Foreign.

(b) Lack of record.(c) Regulations.(d) Other proof.

125. Determination of Foreign Law.

XI, TRIALS

131. Consolidation; Separate Trials; Interlocutory Deter.ininations: Final Judgments.

(a) Consolidation.(b) Separate trials.(c) Separate det,.rmination of liability.

132. Taking of Evidence.(a) Relation to procedures before trial.b) Time; place; notice; exhibits.

(c) Delay by parties.

133. Reception of Evidence,(a) Form and admissibility,(b) Exclusion of proposed witnesses.(c) Affirmation.Id) Scope of examination and cross-examina-

tion.(e) Record of excluded evidence.(f) Deferred completion of examination; death

of witness.

134. Commissioner's Report.(a) Closing of proof.(b) Where all facts stipulated.(c) Requested findings; briefs; time for filing.(d) Form and content of requested findings

and objections.(e) Content of brief.if) Filing of requested findings and briefs.(g) Failure to file or object.(h) Content of commissioner's report; findings

of fact: conclusion of law.

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

Rule141. Notice of Intention To Except.

(a) When required.(b) Motion for judgment.(c) When notice not required.

142. Submissions in Certain Cases Without Exceptionsand Brief.

(a) Application.(b) Submission by plaintiff.(c) Submission by defendant.

143. Exceptions and Briefs After Commissioner's ReporL.(a) Who may file,(b) Time for filing.(c) Duplication of exceptions and briefs.(d) Failure to file.

144. Content of Briefs.(a) Initial brief.(b) Opposing brief.(c) Reply brief.(dl General.

145. Brief of Amicus Curiae.(a) When filed.(b) Content; duplication.(c) Oral argument.

146. Argument Before the Court.(a) On the merits.(b) On motions.(c) On other matters.(d) Date of argument.(e) Time allowed.(f) Submission without argument.

147. Findings and Judgment by the Court.(a) Findings; judgment.(b) Commissioner's report.

XIII. REHEARINGS; NEW TRIALS; CERTIORARI

151. Relhearings; Amendment of Judgments; New Trials.(a) Grounids.(b) Action by court.(c) Form and time of motion; response; reply.(d) On initiative of court.

152. Relief From Judgment or Order.(a) Clerical mistakes.(b) Mistakes; inadvertence; excusable neglect;

newly discovered evidence: fraud, etc.;response; reply.

153. Harmless Error.174. Writs of Certiorari.

(a) Application.(b) Certified transcript of the record.(c) Printing.

XIV. WUNDERLICH ACT REVIEWS161. Applicability of Chapter.162. Pleadings.

(a) Petition.(b) Sufficiency of petition.(c) Answer.

163. Dispositive Motions.(a) Assertion of defenses by motion.(b) Motion for sumnmary judgment.

(1) In support of an administrativedecision.

(2) In opposition to air administrativedecision.

(3) Specificity required.(c) Organization of i esponses.

164. The Administrative Record.(a) Filing of record.(b) Certifi-ation of record.

165. Time for Filing Motions, Responses, and Replies;Duplication; Copies.

(a) Time for filing motions.(b) Direction to file.

(1) Order by commissioner.(2) Failure to comply; consequences.

(c) Time for filing objections, responses, andreply briefs.

(d) Duplication; copies.

Page 2303


Rule166. References to and Opinions by Commissioners; Re-

veiw by the Court.(a) As to motions under Rule 163 (a).(b) As to motions under Rule 163(b).(c) Opinion by commissioner.(d) Notice of conunissioner's opinion.(e) Review by the court.

167. Stay of Proceedings.(a) Content of order.(b) Effect of order by the court.(c) Service of order.(d) Transmittal of administrative record.(e) Advice of administrative action required.(f) Nature of advice.(g) Effective date of commissioner's order.

168. Extension or Termination of Stay; Disposition ofCase.

(a) Action by party.(b) Filing of record.(c) Summary judgment: motion; response;

cross-motion.(d) Further proceedings.(e) Delay by board or agency.

XV. APPEALS; TRANSFERS; AND REFERENCES

171. Appeals From the Indian Claims Commission.(a) Time for appeal.(b) How taken.(c) Notification to other parties.(d) Failure to perfect .ppeal.(e) Dismissal by parties or commlssion.

172. Record on Appeal.(a) Content.(b) Certification.(c) Filing with the court.(d) Doiketing of appeals.(e) Cross-appeals.(f) Correction or modification.(g) Printing.(h) Return to the commission.

173. Briefs on Appeals.(a) Appellant's brief.(b) Appellee's brief.(c) Reply brief.(d) References and citations,

174. Argument on Appeals.(a) Placing on calendar.(b) Calling of calendar.(c) Argument.

175. Certified Questions.(a) Certification.(b) Docketing.(c) Appellant.

179. Appeals From District Courts.(a) When and how taken.(b) Proceedings after appeal docketed.

181. Transfers From District Courts.(a) Filing and fee.(b) Petition; copies.(c) Procedure.

183. Referral of Cases by the Comptroller General.(a) Service of notice; time for response.(b) Procedure after notice.(c) Failure of party to appear.

XVI. THtE CLERK'S OFFICE

191. Judgments and Orders.(a) Entry of judgment.(b) Notice.(c) Record.

192. Docket and Calendars.(a) Docket.(b) Calendars.

193. Withdrawal of Papers and Exhibits.(a) Temporary withdrawal.(b) Withdrawal for trial.(c) Permanent withdrawal.(d) Physical exhibits.

XVII. ATTORNEYSRule201. Admission to Practice.

(a) Qualifications; oath.(b) Upon oral motion,

(1) Before the court.(2) Before a commissioner.

(i) Upon oral motion.(it) Without oral motion.

(c) By verified application.(d) Fee for admission.

(1) Assessment.(2) Payment.

(i) To the clerk.(ii) To the commissioner (up-

on oral motion).(e)Admission of foreign attorneys.

202. Disbarment.203. Attorneys of Record.

(a) One for each party.(b) Registration of address.(c) Change by plaintiff.(d) Withdrawal of attorneys.(e) Death of attorneys.

204. Officers and Employees of the Court as Attorneys.(a) Judges, commissloners, clerk, secretary to

court.(b) Other personnel.

XVIII. DUPLICATION; COPIES

211. General.(a) Conformity required.(b) Additional adverse party defined,

212. Duplication.(a) Printing.(b) Waiver of printing.(c) Mimeographing and typewriting.

213. Form and Size.(a) Typographic printing.(b) Multilith, offset, or equivalent.(c) Mimeographing or typewriting.(d) Page numbers.

214. Specific Papers; Duplication; Number of Copies.(a) Petition.

(1) Duplication.(2) Number of copies.

(1) Printed.(11) Mimeographed.

(b) Responsive pleadings.(1) Duplication.(2) Number of copies.

(c) Procedural motions.(1) Duplication.(2) Number of copies.

(i) General.(ii) Request for review; motion

for judgment.(i1) Motion for production;

motion for call.(iv) Additional copies for ad-

verse parties.(d) Dlspositive motions.

11) Duplication.(2) Number of copies,

(e) Motions for rehearing, for new trial, foramendment of Judgment, or for relief fromjudgment or order.

(1) Duplication.(2) Number of copies.

(f) Requested findings.(1) Duplication.(2) Number of copies.

(g) Exceptions.(1) Duplication.(2) Number of copies.

(h) Briefs,(I) Duplication.(2) Number of copies.

(i) Miscellaneous.(1) Duplication.(2) Number of copies.

Page 2304

TITLE 28, APPENDIX.-RULES 'OF COURT OF CLAIMS

XIX. FEES

221. Fees for Filing Petition..(a) Petitions under Rule 63(a).(b) Other petitions.

222. Fees for Copies.(a) Opinions and reports.(b) Judgments or other documents.

223. Fee for Record on Certiorari.224. Fees in Cases Appealed to This Court.

CROSS-REFEREz.CE TABLE

Derivations of these rules from the Revision of 1964and the Federal Rules of Civil Procedure are indicated Inthe cross-reference table below.

1969Edition

1(a) --------(b) ........5----------6(a) ........(b) ........

7----------12(a) --------(b ) --------(c) and (d)_.

13(a) and (b)_-(c)(d)(1) ----(d)(2) ----(e) ........

14..........21..........22..........2324..........2531..........32..........33----------34----------35----------36 ----------37----------38..........39----------40..........

41..........42..........51(a) --------

(b ) --------(c) and (d)

52(a), (b)(1)and (2)--

(b)(3) ----(c)-(e) ----

53(a) --------(b) ........

54(a) --------(b ) --------

55----------5657----------61 -----------6263..........64 -----------6566----------71(a) and (b)_(c) ........(d) and (e).

() .......(g) --------

72(a) --------(b) --------(c) --------(d ) --------

73 -----------

1964Edition

1(a)(b).........

2

3(a).........(b).........

4(b).........(a).........(c) and (d)_--

52(a) and (b)---(d).........(c)

53----------5----------

6 -----------7 -----------8 -----------9 -----------

17

18-----------19 -----------2013 -------------141517 -------------18 -- - - - - -19 -- - - - - -

22 -------------21 -- - - - - -

2316-----------11(a) ----------(b)(c) and (d)-.

12(a), (b) (1)and (2) ----

Ic)-(e) .....54(a)55(a) ----------54(b) ----------55(b) ..........54(d)54(c) ..........

24...........2526 -------------

27 ------------282938(a) ----------(b ) ----------

42(a) ----------

(b)(d) ----------

FRCP1,

86.

77(a).

3.4(d)(4).5(a) and (b).5(d) and (e).0.7(a) and (c).8(e) and (f).9(a), (b). (c),

(e), and (f).10.8(a).

c/. 27(a).8(b)-(d).

12.15.13(a), (b), (c),(e), and (f).

cf. 14.11.7(b).7(b)(2).

17.19(a) and (c).20.21.24.25.

36.

36.36.

1969Edition

74(a) and (b).(c) - - - -(d ) --------(e) --------

75(a)(1) ....(a)(2) ----(b) --------

76 -----------81(a)-(c) ----(d) (I) -(3) _

(d) (4) ....82 -----------83(a) ........

(b) --------(c) --------

84(a)(1) ....(a)(2) ....(a)(3) ....(b ) --------

85(a) ........(b ) --------(c) ........

868738

1t9(a)-(c) ----(d) .

E10(a) (1) -(3) _

(b) --------(c) and (d)_(e) - - - -91...........

91 -

101-----------

102113 (a)-(d) ----

(e) --------(i)

(g) --------(h ) --------

112'a) --------'b ) --------

113114121122(a) and (b)

123(a), (b)(1)and (3),and (c)-'f) -----

(b) (2) ----124(a) --------

(b) and (c)_-125131 -- - - - -132 .........132 -- - - - -

133(a) .. -

(b ) --------(c) ........(d ) --------(ci)(el ... . .

134(a) ani (b)_(cl ---------(d ) --------(el --------

(f) --------(g) ---------(h ) --------

141(a) ........(b) ........(c) (1)(c)(2.-

142(a) --------(b) --------(c)(d ) ---------

1964Edition

40(a)(b ) ----------(c) ----------(d)

39(a) ----------

38(a)(2).4 1 -------------30(a)-(c) ------(d) ----------

30(e) ---------30(f) ----------(g) ..........(h)

31(a)

(a)(d ) ----------

32(a)(c) ----------(d)

33 ------------31(b) and 32(b)_34 -------------

36(a)-(c) .....(d)

31(c ) ----------(e) ..........(f) ..........

35 ------------37-----------6467-----------43(a)-(d).

(e)(i')

44(a)(b ) ---------

45-----------4656(a)-(d), (f)-_49(d)

(e)

51(a)-(t) -----56(e)50(a)

(b) and (c)___-

47 -----------4848 -..........49(a) - - - - -

(g)----------(h)---------(b).........(C)

f)-----------

57(b) ----------(c) ..........(d) - - - - -(d).........(e)l - -- --if)---------(a)

59 ------------

68(b)(2)-

62(a) ----------(b) ---------(c) ----------

FRCP

34.

37.26.20.

26.26.26.26.30.30.30.30.31(a).31(b).31(c).cf. 27 (b).30(b) and 31(d).cf. 26(d), (e),

and (f).28(a)-(c).

30(c).

30(f).

32.37.56.41.cf. 16.c/. 16.c/. 16.Cf. 16.cf. 16.16.

c/. 16.

45.

44(a).44(b) and (c).44.1.42.

43.43.43.43.43.43.

Page 2305


1969Edition

143(a)-(c) ----(d ) --------

144145146..........147..........151----------152..........153..........154(a) and (b)_

(c).......161----------162 -----------163..........164..........165 ...........166167..........168171..........172..........173(a)-(c) ----

(d) ........174 -----------175..........179 -----------181..........183..........

1964Edition

58(a)-(c)-63606165 -------------6668 -------------69 -------------7071(a) and (d)__(e)

94-----------95-----------9697-----------98 ............99-----------

100 -- - - - - -

8788 -------------89

90-----------

919293 ------------(Rule 14,

FROP

cf. 55.c/. S. Ct. 40.cf. S. Ct. 42.

52(a).59.60.61.cf. 75.cf. 75.

1u5 ea.) ____ -.191(a) -------- 72(a) ---------- 58.

(b) -------- (b) ---------- 77(d).(c) -------- (c) ---------- 79(b).

192(a) -------- 73(a) ---------- 79(a).(b) -------- (b) --------- 79(c).

193 ------------ 74 ------------201(a) -------- 75(a)---------

(b) (1) -- (1) (1)-------(2) (1) -- ---------

(it) ---(c) -------- (a)(2) ------- .(d) --------- (b)---------(e) ------- (c) ---------

202 ----------- '76 -----------203 ------------ 77-----------204 ------------ 78-----------211 ------------ 79 -----------212 ------------ 80 ------------213 ------------ dl -----------214 ----------- 82-----------221---------- 83-----------222 ------------ 84 ------------223 ----- 85 ------------224 ------------ 86 ------------

I. RULES; COURT; COMMISSIONERS

Rule 1. Scope of rules; contruction; effective date

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

(b) Effective date.-These rules will take effect onSeptember 1, 1969. They govc:'n all proceedi,gs inactions after they take effect and also all furtherproceedings in actions then pending, exccpt to theextent that, in the opinion of the court (or the com-missioner), their application in a particular actionpending when the rules take effect would not befeasible or would work an injustice, in which eventthe former procedure applies.

Rule 5. Name and seal of the court(a) Name.-The name of the court, as fixed by

section 171 of title 28, United States Code, is "UnitedStates Court of Claims."

(b) Seal.-The seal of the court shall be theAmerican eagle, as represented in the arms of theUnited States, engraved on a circulor piece of brassor steel of the size of a half dollar, with these wordsin the margin: "Court of Claims" on the upper part;and "Reipublicae Civibusque" in the other part ofthe margin.

Rule 6. Court always open; term(a) Always Open.-The court shall be deemed al-

ways open for the purpose of filing proper papers,issuing and returning process, ml-t.ng motions, andissuing orders.

(b) Annual term.-The annual term of the courtshall begin on the first Monday of October. The con-tinued existence or expiration of a term in no wayaffects the power of the court to do any act or takeany proceeding.

Rule 7. Sittingj by the courtThe Judge. of the court shall sit on the court and

its divisions in such order and at such times andplaces as the court directs in accordance with theprovisions of 28 U.S.C. § 175.

Rule 12. The court and commissioners(a) Delegations o1 authority to commissioners.-

Delegations of authority to "the commissioner" inthese rules relate to actions which a commissioneris authorized to take with respect to a case while itis under reference to him in accordance with Rule 14.Such a delegation shall not be construed as prevent-ing the court from exercising the same authority.

(b) Proceedings before commissioners.-Casescommenced in the Court of Claims will be referred tocommissioners for the conduct of proceedings pur-suant to the provisions of Rule 13(b). A terminationor a suspension of the reference terminates or sus-pends the authority of the commissioner with respectto the case.

(c) When "court" includes commissioners.-When the context permits, the term "the court," asuscd in Rules 21, 25, 38-41, 64, 66, 71-76, 81, 86, 87,r,2, 123, 153, and 203, includes the commissioners inmatters under reference to them pursuant to Rule14, to the extent of the authority vested in them byRule 13.

(d) Requests for review; action.-(1) Requests forreview of the commissioners' actions or orders, asprovided by Rule 13(d) or Rule 53(b)(3), may beacted upon by the chief judge or a judge in chambers.Such action shall be without prejudice and subjectto review by the court in Its discretion. Proceedingsbefore the commissioner will not be stayed pendingaction upon a request for review pursuant to thisprovision unles the commissioner or the court ora judge thereof shall so order.

(2) Requests for review of commissioners' rec-ommendations for conclusions oi law on dispositivemotions (Rules 54(b)(3) and 166(e)), and excep-tions to commissioners' reports (Rule 143), will beacted upon by the court.

Rule 13. Authority of commissioners

(a) General.-The commissioners shall se: ve asthe trial Judges of the court to the extent of theanlthority therefor prescribed by statute and these

Rule 1 Page 2300


rules. As such, the, shall have the power to do andperform any p which may be necessary or proper,under the co:irt'3 orders of reference and these rules,for the efficient performance of their duties and theregulation of p, oceedings before them.

(b) Responsbility.-L.. all cases referred to him,the commissioner shal. e responsible in the firstinstance (1) for all orders requisite to the joinder ofissue on the pleadings; (2) for the disposition of pro-cedu-al motions; (3) for the direction and conductof pretrial proceedings (including discovery and dep-ositions) ; (4) for the trial of issues of fact; (5) formaking and reporting findings of fact; and (6) un-less otherwise directed by the court, for submittinghis opinion and recommendation for the conclusionof law (i} in all cases wherein he determines andreports findings of fact, and (ii) in such other casesas the court by specific or general order may direct.

(c) Discretion of commissioner.-In the event thata question of authority arises in proceedings beforea commissioner which is not covered by a rule or theorder of referfnr"e, the commissioner shall exercisehis discretion thereon, subject to review by the courtin its discretion.

(d) Review by the court.-(1) Unless the rulesprovide otherwise, all rulings and orders by the com-missioner shall be subject to review by the court.(Exercise of discretion by commissioner, paragraph(c) of this Rule 13; procedural motions, Rule 53;dispositive motions, Rule 54; commissioners' reports,Rules 141-47; Wunderlich Act reviews, Rule 166)

(2) With respect to any ruling or order by thecommissioner (including any such ruling or ordermade pursuant to paragraph (c) of this rule) as towhich no time Is prescribed for filing a request forreview by the court, the request shall be filed within10 days after the service of such ruling or order,unless the court on motion and for good cause shownenlarges or shortens the time.

(e) Misconduct be/ore commissioner.-Any mis-conduct by attorneys, parties, tnesses, or otherpersons at any proceeding before a commissionermay be reported by him to the court for such dis-ciplinary action, including contempt proceedings, asthe court may deem proper under the circr'mstances.

Rule 1I. Reference of cases to commissioners

(a) Purpose of re/erence.-Unless otherwise or-dered by the court, every case commenced in theCourt of Claims shall be referred to a commissionerfor action pursuant to the provisions of Rule 13(b).

(b) Duration of rejerence.-(1) Termination: Thefiling by the commissioner of his report on any casetried on the merits, or of his opinion and iecom-mended conclusion of law respecting a dispositivemotion, shall be deemed a return of che case to thecourt, terminating the reference as to all parties ormatters covered by the report or recommer.datlon.(See Rules 134, 54, and 166.)

(2) Suspension: Except as provided in Rule 166,

the filing of a dispositive motion in any case willsuspend the reference for purposes of the particularmotion: P:'ovded, That the subsequent filing by theparties of a stipulation of settlement will terminate

th suspension.

(c) Substitution of commissioner.-When thecommissioner to whom a case has been referred isunavailable, the chief commissioner or another com-missioner designated by him may (1) rule uponmotions, (2) conduct pretrial proceedings, or (3)hear evidence: Provided, That when oral testimonyhas been heard by one commissioner after refer-ence of the case to him, the case shall not thereafter,except for good cause, be referred to another com-missioner.

(d) Disqualification.-A commissioner may at anytime withdraw from a case if he deems himself dis-qualified. Upon the filing in good faith by any partyof a timely sufficient affidavit of personal bias ordisqualification of a commissioner, the chief com-missioner shall determine the matter, subject to re-view by the court in its discretion.

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

Rule 21. Commencement of suit

(a) Petition; filing and fee.-A suit in this courtshall be commenced by filing a petition with theclerk of the court and by paying to him the feerequired by Rule 221.

(b) Petition; date of filing -(I) The records ofthe clerk, including the date stamped on the peti-tion, shall be final and conclusive evidence of thedate on which a petition was flied, in the absenceof the filing and allowance of a motion under sub-paragraph (2) of this paragraph (b).

(2) (1) A party plaintiff who contends that theeffective filing date of his petition should properlybe a date earlier than that shown by the clerk'srecords may seek a corrective order from the courtby means of a motion under Rule 51.

(if) Upon motion of a party plaintiff supportedby a proper showing that the clerk's records arefactually incorrect, the court will correct the recordsby order.

(iii) In a situation where a petition is stampedby the clerk after the last date allowed by a statuteof limitations for the filing of the petition, if thepetition was received by the clerk through the mail,it may, by order of the court, upon motion of theparty plaintiff, be deemed to have been filed on thelast date allowed if there is a proper showing (a)that the petition was sent by registered mail, prop-erly addressed to the clerk of the court at 717Madison Place, N.W., Washington, D.C. 20005, andwith return receipt requested, (b) that it was de-posited in the mail sufficiently in advance of thelast date allowed for filing to provide for receipt bythe clerk on or before such date in the ordinarycourse of the mail, and (c) that the party plaintiffas sender exercised no control over the mailingbetween the deposit of the petition in the mail and

its delivery.(c) Petition; form; content; duplication;

copies.--The petition shall conform to the follow-ing requirements: form, Rules 32 and 42; content,Rule 35; duplication and copies, Rule 214(a). (Cf.Rule 36, for petition pencIng discovery; Rule 41(g),for third-party petition; and Rule 162(a), for peti-

tion in Wunderlich Act review cases.)

Rule 21Page 2307


Rule 22, Service of petition

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

(b) Copies.-The clerk shall serve on the AttorneyGeneral or his designated agent 10 copies of thepetition: Provided, That when only 5 copies of thepetition are initially filed under Rule 214(a) (2), 3copies shall be served without delay on the AttorneyGeneral or his designated agent, and 10 additionalcopies shall be served when the party files the 30copies called for by Rule 214(a) (2). (Cf. Rule 38(a) (0,.)

Rule 23. Service of other papers

Except as provided in Rule 41, relating to third-party procedure, every paper required to be servedshall be served by the clerk of the court upon theparty or parties affected thereby, as follows:

(a) upon the plaintiff, by mailing a copy (orcopies, where more than one copy is required bythese rules) to klaintiff's attorney of record at hisaddress registered with the clerk as required by Rule42;

(b) where the plaintiff is not represented by anattorney, by mailing such copy or copies to the plain-tiff at the address registered with the clerk as re-quired by Rule 42; and

(c) upon the United States, by delivery of suchcopy or copies to the Attorney General, or to anagent designated by authority of the AttorneyGeneral.

Rule 24. Proof and date of service

At the time of serving a pleading, motion, or otherpaper, as provided in Rules 22 and 23, the clerk shallenter the fact of service on the docket, and suchentry shall be prima facie evidence of service. Forthe purposes of these rules (except Rule 41), thedate of service shall be the date of filing with theclerk.

Rule 25. Time

(a) Computation.-(1) In computing any periodof time prescribed or allowed by these rules or byorder of the court or by any applicable statute, theday of the act, event, or default from which thedesignated period of time begins to run shall notbe included. The last day of the period so computedshall be included, unless it is a Saturday, a Sunday,or a legal holiday in the District of Columbia, inwhich event the period runs until the end of the nextday which is not a Saturday, a Sunday, or a legalholiday.

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

New Year's Day, January 1.Inauguration Day, every fourth year.Washington's Birthday, February 22 [third Monday

In February beginning in 19711.Memorial Day, May 30 [last Monday in May begin-

ning in 19711.Independence Day, July 4.Labor Day, first Monday in September.

Columbus Day, second Monday In October [begin-ning in 19711.

Veterans Day. November 11 [fourth Monday in Octo-ber beginning in 19711.

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

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

(b) Enlargement.-(1) When, by these rules orby a notice given thereunder or by order of the court,an act is required or allowed to be done at or with-in a specified time, the court may, upon motionunder Rule 51 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 addi-tional days requested, the date to which the en-largement is to run, the extent to which the timefor the performance of the particular act has beenpreviously enlarged, and the reason or reasons uponwhich the motion for enlargement is based; and(it) must be filed within the period allowed for theperformance of the act to which the motion relates(including any previous enlargement of the time) :Provided, That the requirement stated in subdivi-sion (ii) may be waived by the court upon a show-ing, in a separate motion for leave to file out oftime, that the delay ill filing was the result ofexcusable neglect

(c) Additional time after service by mail.-When-ever a party has the right or is required to do someact or take some proceeding within a prescribedperiod after the service of a paper, and the serviceis made by mail outside the District of Columbia, 5days shall be added to the prescribed period.

(d) When time begins to run.-In computing anyperiod of time prescribed or allowed by these rules,or by order of the court, or by any applicable statute,the period of time shall commence to run on the dayafter the date of service of a paper, unless otherwiseparticularly specified in these rules.

ce) Unaffected by expiration o1 term.-The periodof time provided for the doing of any act or thetaking of any proceeding is not affected or limitedby the continued existence or expiration of a termof court.

III. PLEADINGS

Rule 31. Pleadings allowed

;a) Pleadings.-There shall be a petition and ananswer; and if the answer contains a counterclaimor offset or a plea of fraud, there shall be a replythereto. There shall be such third-party pleadingsas are permitted by Rule 41. No other pleading shallbe allowed, except that the court (or the commis-sioner) may order a reply to an answer, or a respon-sive pleading to a third-party petition or answer.

(b) Demurrers, pleas, etc., abolish ed.-Demurrers,pleas, and exceptions for insufficiency of a pleadingshall not be used.

Rule 32. General rules of pleading

(a) Pleading to be concise and direct; consist-ency.-( 1) Each averment of a pleading shall be sim-ple, concise, and direct. No technical forms of plead-ing or motions are required.

Page 2308Rule 22


(2) A party may set forth two or more statementsof a claim or defense alternatively or hypothetically,either in one count or defense or in separate countsor defenses. When two or more statements are madein the alternative and one of them, if made inde-pendently, would be sufficient, the pleading is notmade insufficient by the insufficiency of one or moreof the alternative statements. A party may also stateas many separate claims or defenses as he has, re-gardless of consistency and whether based on legalor on equitable grounds or on both. All statementsshall be made subject to the obligations set forthin Rule 42(c).

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

Rule 33. Pleading special matters

(a) Capacity.-It is not nccessary to aver thecapacity of a party to sue or be sued, or the authorityof a Iarty to sue or be sued in a representativecapacity, or the legal existence of an organized asso-ciation of persons that is made a party, except to theextent required to show the Jurisdiction of the courtand to comply with the provisions of Rule 35. Whena party desires to raise an issue as to the legal exist-ence of any party, or the capacity of any party to sueor be sued, or the authority of a party to sue orbe sued in a representative capacity, he shall do soby specific negative averment, which shall includesuch supporting particulars as are peculiarly withinthe pleader's knowledge.

(b) Fraud; mistake; caprice; condition of mind.-In all averments (1) of fraud (including a plea bythe United States that the plaintiff has practiced orattempted to practice fraud), (2) of mistake, or (3)of action alleged to be arbitrary, capricious, or sogrossly erroneous as to imply bad faith, the circum-stances constituting fraud, mistake, or arbitrary,capricious, or erroneous action shall be stated with

particularity. Malice, intent, knowledge, and othercondition of mind of a person may be averredgenerally.

(c) Conditions precedent,-In pleading the per-formance or occurrence of conditions precedent, itis sufficient to aver generally that all conditions pre-cedent have been performed or have occurred. Adenial of performance or occurrence shall be madespecifically and with particularity.

(d) Judgment.-In pleading a judgment or deci-sion of a domestic or foreign court, of a judicial or

quasi-judicial tribunal, or of a board or officer, it issufficient to aver the judgment or decision with;outsetting forth matter showing jurisdiction to render it.

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

other averments of material matter.

Rule 34. Form of pleadings

(a) Caption; names of parties: designation;paging.-Every pleading (and every other paper tobe filed with the clerk) shall contain a caption in

large and distinct type setting forth the name of thiscourt, The United States Court of Claims; the titleof the action; the docket number (when available) ;and a designation to show the nature of the plead-

33-381 0-70-vol. 2-19

Ing (or other paper). In the petition, the title of theaction shall include the names of all the parties, butin other pleadings (and papers) it is sufficient tostate the name of the first party on each side withan appropriate indication of other parties. Thepaging of each pleading (or other paper) shall com-mence with page 1.

(b) Paragraphs; separate statements.-All aver-ments of claim or defense shall be made in numberedparagraphs, the contents of each of which shall belimited as far as practicable to a statement of asingle set of circumstances; and a paragraph may bereferred to by number in all succeeding pleadings.Each claim founded upon a separate transaction oroccurrence and each defense, other than denials,shall be stated in a separate count or defense, when-ever a separation facilitates the clear presentationof the matters set forth.

(c) Adoption by reference; exhibits.-Statementsin a pleading may be adopted by reference in a differ-ent part of the same pleading or in another pleadingor in any motion. A copy of any written instrumentwhich is an exhibit to a pleading is a part thereof forall purposes unless otherwise indicated, but the ad-verse party shall not be deemed to have admitted thetruth of the allegations in such exhibit merely be-cause he has failed to deny them explicitly.

Rule 35. 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 juris-

diction depends, the time when and place where theclaim arose, and the items and amounts claimed:Provided, That in cases for general or specific ac-counting, the statement of the relief requested mayomit the amounts claimed.

(b) Action by other tribunal or body.-Any actionon the claim taken by Congress or by a departmentor agency of the United States, or in any judicialproceeding, Including any in the Tax Court of theUnited States.

(c) Citation of statutes, regulations, orders.-Aclear citation of the Act of Congress, regulation ofan executive department or agency, or Executiveorder of the President, where the claim is foundedupon such an act, regulation, or order.

(d) Contracts or treaties.-If the claim is foundedupon a contract or treaty with the United States, adescription of the contract or treaty sufficient toidentify it. In addition, the plaintiff shall plead thesubstance of those portions of the contract or treatyon which he relies or, at his election, annex to thepetition a copy of the contract or treaty or the pro-

visions thereof on which he relies.(e) Patent suits.-In any patent suit, the claim or

claims of the patent or patents alleged to be in-

fringed.(f) Ownership of claim; assignment.-Where the

plaintiff is the owner by assignment or other trans-

fer of the claim, in whole or in part, when and upon

what consideration the assignment or transfer was

made.(g) Demand for judginent.-A demand for judg-

ment to which the pleader deems himself entitled.

Rule 35Page 2309


(h) Addresses and signatures.-The addresses andsignatures required for an initial pleading by Rule42(a).

Rule 36. Petition pendiag motion for discoveryWhen the plaintiff cannot state his case with the

requisite particularity without an examination ofdocuments or things or other information In thepossession of the United States, and he has been un-able upon application to obtain a sufficient examina-tion of such documents or things or other informa-tion, he may file a petition in conformity with Rule21 c), stating his claim as far as is in his power andspecifying as definitely as he can the documentsor things or other information he requires. Such apetition shall state specifically that it is filed underthis Rule 36. Within 30 days after the filing of suchpetition, he shall file a motion pursuant to Rules72, 73, 74, or 81, or such combination thereof as maybe needed to obtain from the proper department oragency of the United States such documents or thingsor other information as may be deemed necessary.If such motion Is granted, plaintiff may file anamended petition within 30 days after such docu-ments or things or other information are furnishedor obtained. Defendant need not respond to anoriginal petition filed under this rule, but shallanswer or otherwise respond to the amended peti-tion within the time required under these rules foranswering an original petition. If no motion isgranted or if an amended petition is not filed afterthe requested documents or things or other informa-tion are furnished or obtained, the defendant shallfile such responsive pleading or r.,otion within suchtime as the court (or the commissioner) may require.

Rule 37. Defenses(a) Form of denials.-A party shall state in short

and plain terms his defenses to each claim assertedand shall admit, or deny the averments upon whichthe adverse party relies. If the attorney for a partyor a party not represented by an attorney is unableto obtain knowledge or information sufficient for himto form a belief as to the truth of an averment, theanswer shall so state and such statement shall havethe effect of a denial. Denials shall fairly meet thesubstance of the averments denied. When a pleaderintends In good iaith to deny only a part or a qualifi-cation of an averment, he shall specify so much of itas is true and material and shall deny only the re-mainder. Unless the pleader intends in good faithto controvert all the averments of the precedingpleading, he may make his denials as specific denialsor designated averments cr paragraphs, or he maygenerally deny all the aver, ,,nts except such desig-nated averments or paragrL )hs as he expressly ad-mits; but when he does so intend to controvert allits averments, including averments of the groundsupon which the court's jurisdiction depends, he maydo so by general denial subject to Ohe obligationsset forth in Rule 42(e).

(b) Affirmative delenses.-In pl ading to a pre-ceding pleading, a party shall set forth affirmativelyaccord and satisfaction, duress, estoppel, failure ofconsideration, fraud, illegality, laches, license, pay-ment, release, res judicata, statute of limitations,

waiver, and any other matter constituting an avoid-ance or affirmative defense. When a party has mis-takenly designated a defense as a counterclaim or acounterclaim as a defense, the court (or the com-missioner) may, if justice so requires, treat thepleading as if there had been a proper designation.

(c) Effect of failure to deny.-Averments in apleading to which a responsive pleading is required,other than those as to the amount of damages, shallbe deemed admitted when not denied in the re-sponsive pleading. Averments in a pleading to whichno responsive pleading is required or permitted shallbe taken as denied or avoided.

Rule 38. Defenses and objections; when and howpresented

(a) Time for answer and reply.-(1) Except asotherwise provided In these rules, the United Statesshall file its answer withtn 60 days after the serviceof 10 copies of the petition in conformity with Rule22(b). After service of an answer containing a coun-terclaim, offset, or plea of fraud, plaintiff shall have40 days within which to file a reply to the counter-claim, offset, or plea of fraud. If a reply to an answeror a responsive pleading to a third-party petition oranswer is ordered by the court, the reply or the re-sponsive pleading shall be filed within 40 days afterservice of the order unless the order otherwise di-rects. The answer, reply, or other responsive plead-ing shall be duplicated in conformity with Rules 211-14; the number of copies to be filed shall be asprovided in Rule 214; and service shall be made asprovided in Rule 23.

(2) The service of a motion permitted under thisrule or under Rule 101 alters the above period oftime as follows, unless a different time is fixed bythe court: (i) if the court denies the motion or post-pones its disposition until the trial on the merits, theresponsive pleading shall be filed within 30 days afterservice of the court's order; or (it) if the courtgrants a motion for a more definite statement, theresponsive pleading shall be filed within 30 days afterthe service of the more definite statement.

(b) Defenses; how presented.-Every defense, inlaw or fact, to a claim for relief in any pleading,whether a claim, counterclaim, or a third-partyclaim, shall be asserted in the responsive pleadingthereto if one is required, except that the followingdefenses may, at the option of the pleader, be madeby motion: (1) lack of jurisdiction of the subjectmatter or the person, and (2) failure to state a claimupon which relief can be granted. A motion makingeither of these defenses shall be filed before plead-ing further if a further pleading is permitted. If apleading sets forth a claim for relief to which the ad-verse party is not required to serve a responsivepleading, he may assert at the trial any defense inlaw or fact to that claim for relief. If, on a motion todismiss for failure of the pleading to state a claimupon which relief can be granted, matters outside thepleading are presented to and are not excluded bythe court, the motion shall be treated as one forsummary Judgment and shall be disposed of as pro-vided in Rule 101, and all parties shall be given rea-sonable opportunity to present all material madepertinent to such a motion by Rule 101.

Rule 36 Page 2310

TITLE 28, APPENDIX-RULES OF COURT OF CLAIMS

(c) Motion for Judgment on the pleadings.-Afterthe pleadings are closed, any party may move fnrjudgment on the pleadings: Provided, That no suchmotion may be filed, except by leave of court, afterthe case has been set for trial. If, on a motion forjudgment on the pleadings, matters outside thepleadings are presented to and are not excluded bythe court, the motion shall be treated as one forsummary judgment and shall be disposed of as pro-vided in Rule 101, and all parties shall be given rea-sonable opportunity to present all material madepertinent to such a motion by Rule 101.

(d) Preliminary hearings.-The defenses specifi-cally enumerated (1) and (2) in paragraph (b) ofthis Rule 38, whether made in a pleading or by mo-tion, and the motion for judgment mentioned inparagraph (c) of this rule shall, on motion of anyparty, be heard and determined before trial, unlessthe court orders that the hearing and determinationthereof be deferred until the trial.

(e) Motion for more definite statement-If apleading to which a responsive pleading is permittedis so vague or ambiguous that a party cannot rea-sonable be required to frame a responsive pleading, hemay move within 30 days for a more definite state-ment before interposing his responsive pleading. Themotion shall point out the defects complained of andthe details desired. If the motion is granted and theorder of the court is not obeyed within 30 days afterservice of the order or within such other time as thecourt may fix, the court may strike the pleading towhich the motion was directed or make such orderas it deems just. The more definite statement shallcomply with Rule 214(a) and (b) as to duplicationand number of copies.

(f) Motion to strike-cUpon motion made by aparty before responding to a pleading, or if no re-sponsive pleading is permitted by these rules, uponmotion made by a party within 30 days after theservice of the pleading upon him, or upon the court'sown initiative at any time, the court may orderstriken from any pleading any redundant, imma-terial, impertinent, or scandalous matter, or anyinsufficient defense.

(g) Consolidation of defenses.-A party who

makes a motion under this rule may join with it the

other motions herein provided for and then avail-able to him. If a party makes a motion under this

rule but omits therefrom any defense or objection

then available to him which this rule permits to beraised by motion, he shall not thereafter make a

motion based on the defense or objection so omitted,except as provided in paragraph (h) of this rule.

(h) Waiver of defenses.-A party waives all de-

fenses and objections which he does not present

either by motion as hereinbefore provided or in hisanswer or reply, except (1) that the defense of fail-ure to state a claim upon which relief can be granted,

and the objection of failure to state a legal defenseto a claim, may also be made by a later pleading, if

one is permitted, or by motion for Judgment on thepleadings; and (2) that whenever it appears b sug-gestion of the parties or otherwise that the courtlacks jurisdiction of the subject matter, the courtshall dismiss the action.

RIule 39. Amended and supplemental pleadings

(a) Amendments.-A party may amend his plead-ing once as a matter of course at any time before theservice on him of a responsive pleading, or of a mo-tion to dismiss or for summary Judgment, or if thepleading is one to which no responsive pleading ispermitted, he may so amend it at any time within30 days after it is served. Otherwise, a party mayamend his pleading (1) by leave of court (whichshall be freely given when justice so requires), or(2) by written consent of the adverse party. In anyevent, the amendment shall conform to the require-ments of paragraph (e) of this rule. A party shallplead in response to an amended pleading within thetime remaining for response to the original pleadingor within 30 days after service of the amended

pleading, whichever period may be the longer, unlessthe court orders otherwise.

(b) Amendments to conform to the evidence.-

When issues not raised by the pleadings are tried byexpress or implied consent of the parties, they shallbe treated in all respects as if they had been raisedIn the pleadings. Such amendments of the plead-ings as may be necessary to cause them to conformto the evidence and to raise these issues may bemade upon motion of any party at any time, evenafter judgment; but failure so to amend does notaffect the result of the trial of these issues. If evi-dence is objected to at the trial on the ground thatit is not within the issues made by the pleadings, thecourt may receive the evidence and may allow the

pleadings to be amended, and shall do so freely whenthe presentation of the merits of the action will besubserved thereby and the objecting party fails tosatisfy the court that the admission of such evidencewill prejudice him in maintaining his action or de-fense upon the merits. The court shall afford theobjecting party an opportunity to meet such evidence.

(c) Relation back of amendments.-Wheneverthe claim or defense asserted in the amended plead-Ing arose out of the conduct, transaction, or occur-rence set forth or attempted to be set forth in theoriginal pleading, the amendment relates back to thedate of the original pleading.

(d) Supplemental pleadings.-Upon motion of a

party, the court may, upon reasonable notice andupon such terms as are just, permit him to serve asupplemental pleading setting forth transactions oroccurrences or events which have happened sincethe date of the pleading sought to be supplemented.Permission may be granted even though the originalpleading is defective in its statement of a claim forrelief or defense. If the court deems it advisable thatthe adverse party plead to the supplemented plead-ing, it shall so order, specifying the time therefor.

(c) Form and flling.-Every amendment to apleading shall (1) include so much of the priorpleading as may be required to show clearly how thepleading is to stand amended; (2) comply with therequirements of Rules 34(a) and 42 as to caption,

designation, and signature; (3) carry designation asthe first, second, or subsequent amended pleading;

and (4) comply with the requirements of Rules 211-14 that applied to the pleading to stand amended,

except that upon a proper showing, by motion filed

with the court or during pretrial conference or at

Page 2311 Rule 39


trial, that the proposed amendments are minor incharacter or of such brevity as to warrant the useof pasters or interlineation, the court may waive therequirements of this claute (4) of this paragraph (e)and permit such amendments to be made by pastersor interlineation. When the requirements of clause(4) apply, the same number of copies of the amend-ments shall be filed as in the case of the pleadingthat it to stand amended.

Rule 40. Counterclaims

(a) Compulsory counterclaim.-The answer shallstate as a counterclaim any claim which, at the timeof serving the answer, the defendant has against anyplaintiff, if it arises out of the transaction or occur-rence that is the subject matter of the petition anddoes not require for its adjudication the presence ofthird parties of whom the court cannot acquirejurisdiction: Provided, That such a claim need notbe so stated if at the time the action was commencedihe claim was the subject of another pending action.

(b) Permissive counterclaim.-The answer maystate as a counterclaim any claim against a plaintiffnot arising out of the transaction or occurrence thatis the subject matter of the petition.

(c) Extent of counterclaim.-A counterclaim mayor may not diminish or' defeat the recovery soughtby a plaintiff. It may claim relief exceeding inamount or different in kind from that sought in thepetition.

(d) Counterclaim maturing or acquired afterpleading.-A claim which either matured or was ac-quired by the defendant after serving its answermay, with the permission of the court, be presentedas a counterclaim by supplemental pleading.

(c) Omitted counterclaim-h When defendantfails to set up a counterclaim through oversight, in-advertence, or excusable neglect, or when justice re-quires, it may, by leave of court, set up the counter-claim by amendment.

(f) Form and content.-A counterclaim shall con-form to the requirements of Rule 21(c).

Rule 41. Third-party practice

(a) When third parties may be brought tn.-(1)The court, on its own motion or on the motion of aparty, may notify any person with legal capacity tosue and be sued and who appears to have an inter-est in the subject matter of any pending suit toappear as a party and assert his interest therein.

(2) On motion of the United States, the court maysummon any third person against whom the UnitedStates may be asserting a claim or contingent claimfor the recovery of money paid by the United Statesin respect of the transaction or matter which con-stitutes the subject matter of the suit to appear as aparty and defend his interest, if any, in such suit.

(3) A motion made by the plaintiff under sub-paragraph (1) of this paragraph (a) shall be filedat the time the petition is filed. A motion made bythe United States under subparagraph (1) or (2)shall be filed on or before the date on which theanswer is required to be filed. For good cause shown,the court may allow any such motion to be filed at alater time.

(b) Content of motion for notice to third parties.-A party desiring to bring in a third party pursuant

to subparagraph (1) of paragraph (a) of this ruleshall file with the clerk a written motion, which shallcomply with the requirements of Rule 51 and whichshall in addition-

(1) state the name and address of such person, ifknown;

(2) if the address of such person is unknown, or ifsuch person resides outside the jurisdiction of theUnited States, or there is good reason why personalservice on such person cannot be had, be accom-panied by an affidavit showing why personal servicecannot be had on such person and stating the last-known address of such person;

(3) set forth the interest which such person ap..pears to have in the suit; and

(4) be accompanied by I copy of each pleadinp.theretofore filed in the suit for each person to benotified.

(c) Issuance and service of notice.-(i) If thecourt, on its own motion or on the motion of a party,orders any third person to be notified pursuant tosubparagraph (1) of paragraph (a) of this rule, theclerk shall issue an original and 1 copy of the noticefor each third person to be notified. The notice shallcontain the names of the parties and a statement ofthe time within which such third person may appear,and shall state that in case the third party fallsto appear and assert a claim in the subject matterof the suit, his claim or interest therein shall for-ever be barred. The notice shall indicate that it isaccompanied by a copy or copies of the pleadingsfiled in said suit, naming such pleadings.

(2) Upon the issuance of such notice upon motionof a party, the notice with the accompanying plead-ings shall be delivered by the clerk to the movingparty, who shall at his expense cause the same to beserved by the United States marshal for the Judi-cial district wherein the person to be notified may befound, and the return of such service shall be madedirectly to the clerk of this court.

(3) When the court directs the issuance of a noticeto a third person on its own motion, each of theexisting parties shall, on request of the clerk, deliverto the clerk a sufficient number of copies of pleadingsfiled by such party to provide the third party to benotified with a copy of each of such pleadings, andthe clerk shall forthwith issue such notice as speci-fied in subparagraph (1) of paragraph (c) of thisrule, and shall forward the same with accompanyingcopies of the pleadings to the Attorney General forservice by the United States marshal in the Judicialdistrict where the person to be notified may befound.

(4) When service of the notice required by sub-paragraph (1) of this paragraph (c) is to be effectedupon a third person in a foreign country, service ofthe notice may be made by the moving party or thecourt (as required by subparagraphs (2) and (3)of this paragraph (c)) and proof of such servicemay be made in the manner authorized by Rule 40)of the Federal Rules of Civil Procedure.

(d) Service of notice by publication.-Where,upon motion of a party, the court under subpara-graph (1) of paragraph (a) of this rule directs theissuance of a notice to a person upon whom personalservice cannot be had, the moving party shall cause

Pmge 2312Rule 40


such notice to be published in a newspaper of generalcirculation in a place designated in the order, fora specified time, not less than once in each of 4successive weeks. On or before the day of the firstpublication, the moving party shall send a copy ofthe notice by registered mail to such person at hislast-known address and shall file with the clerkan affidavit showing such mailing. The moving partyshall procure an affidavit of the publisher showingthat publication of the notice has been had as re-quired by the order and shall file such affidavitwith the clerk, who shall make an entry on hisdocket that publication has been had. The affidavitof mailing and the publisher's affidavit, togetherwith the clerk's entry, shall constitute proof of serv-ice by publication. Service shall be deemed completeon the date of the last publication. The costs ofsuch service by publication shall be paid by theparty at whose instance it was made.

(e) Content of motion for summons to thirdparties.-When the United States is asserting a claimfor damages or other demand against a third personfor the recovery of money paid by the United Statesin respect of the transaction or matter which con-stitutes the subject matter of any pending suit anddesires to have such third person brought in pur-suant to subparagraph (2) of paragraph (a) of thisRule 41, it shall file a written motion, which shallcomply with the requirements of paragraph (b)of this rule and which shall be accompanied by anappropriate pleading setting forth, in the form andmanner specified in Rules 32-34 and 42, the claimor contingent claim which it is asserting against suchth'rd person.

(f) Issuance and service of summons.-If thecourt, on motion of the United States, summons athird person pursuant to subparagraph (2) of para-graph (a) of this rule to answer a claim or con-tingent claim asserted by the United States, the clerkshall issue an original and 1 copy of such summonsfor each person to be summoned. The summons shallcontain the names of the parties and a statementof the time within which the party summoned is re-quired to appear and answer. The summons shall alsostate that the United States is asserting a claimagainst such person, as described in the accom-panying pleading of the United States, and shallfurther state that if such third person fails to appearand answer the claim asserted by the United States,judgment pro confesso may be entered against suchthird person upon the claim of the United Statesto the same extent as if said third person had ap-peared and admitted the truth of all the allegationsmade on behalf of the United States. The summonsshall indicate that It is accompanied by a copy orcopies of all pleadings filed in said suit, namingsuch pleadings. Upon issuance of the summons, theclerk shall deliver the summons and accompanyingpleadings to the Attorney General for service in thesame manner as provided in subparagraph (2) ofparagraph (c) of this Rule 41 for a notice.

(g) Pleadings of third parties.-Within 40 daysafter service upon a third person of a notice or sum-mons Issued pursuant to this Rule 41, such personmay file a petition setting forth his interest, if any,in the subject matter of the suit and the nature

of his claim against the United States, or an answer,or both, which pleadings shall comply with the re-quircmenLs of these rules with respect to the filingof original petitions and answers. (Cf. Rules 21(c)and 34.)

Rule ,12. Signing of papers

(a) Parties other than the United States.-Theoriginal of every pleading or paper of a party (otherthan the United States) represented by an attorneyshall be signed by the attorney of record, as definedin Rule 203, and the initial pleading shall set forththe post office address of the party and of the at-torney. A party who is not represented by an at-torney shall set forth his post office address in hisinitial pleading and shall simn his pleadings andpapers, All notices and copies of pleadings andpapers will be sent to the attorney of record wherethe party is represented by an attorney; otherwiseto the party.

(b) The United States.-Thc original of everypleading or paper of the United States shall be signedby the Attorney General, or by an attorney of theDepartment of Justice designated by him.

(c) Effect of signature.-The signature of an at-torney or a party constitutes a certificate by himthat he has read the pleading or paper; that to thebest of his knowledge, information, and belief thereis good ground to support it; and that it is not inter-posed for delay. The signature of an attorney alsoconstitutes a representation by him that he is au-thorized to represent the party or parties in whosebehalf the pleading or paper is filed. If a pleadingor paper is not signed, or is signed with intent todefeat the purpose of this rule, it may be stricken assham and false, and the action may proceed asthrough the pleading or paper had not been served.For a willful violation of this rule, an attorney maybe subjected to appropriate disciplinary action bythe court. Similar action may be taken if scandalousor indecent matter is inserted.

IV. MOTIONS

Rule 51. Motions and related papers

(a) Content of Motions.-Every application to thecourt or the commissioner for an order shall be bywritten motion filed with the clerk. The motion shallset forth the relief or order sought and shall statewith particular'ty the grounds therefor.

(b) Form; signing; duplication; copies.-Therules relating to the form of pleadings (Rule 34),signing (Rule 42), duplication (Rules 211-14), andnumber of copies (Rule 214) shall apply to all no-tions and related papers provided for by these rules,including objections and responses to motions, andincluding briefs and memoranda of law in support ofmotions, objections, and responses.

(c) Briefs; memoranda; aft1davits.-Any brief,memorandum of law, or affidavit submitted in sup-port of any motion, or in support of any objectionsor response to a motion, shall be included in or at-tached to each copy of such motion, objections, orresponse. Every dispositive motion, as defined inRule 52(a), shall be supported by the moving party'sbrief. As to any rule or regulation relied upon, seeRule 124(c).

Page 2313 Rule 51


(d) Notice of action.-The clerk shall give theparties written notice of the disposition of allmotions.

Rule 52. Motions; dispositive and procedural; objec-tions and responses

(a) Dispositive motions deflned.-Dispositive nmo-tions include (1) motions for judgment on the plead-ings (Rule 38) ; (2) motions asserting defenses basedupon lack of jurisdiction of the subject matter or theperson, or upon failure to state a claim upon whichrelief can be granted (Rule 38); (3) motions to dis-miss (Rule 102) ; (4) motions for summary judgment(Rules 101 and 163) ; and (5) motions for judgmenton commissioner's recommendation or report (Rules54(b) (3) (it) and 141(h) ).

(b) Time for filing: papers combined.-(1) Objec-tions and responses to dispositive notions: Objec-tions or a respoi~se to a dispositive motion, includingany cross-dispositive motion, shall be filed within 30days after the service of such motion. Any cross-dispositive motion shall be contained in the samedocument with the objections or other responses.

(2) Reply briefs: The moving party shall have 15days from the date of the service of the objectionsor response to such motion within which to file areply brief: Provided, That when 'ross-disposltivemotions are pending, the party who filed first shallhave 30 days from the service on him of the cross-motion within which to file both his objections orresponse thereto and his reply to the objections orresponses to the motion filed by him, and all suchmaterial shall be contained in the same document.

(c) Procedural motions defined.-Except for dis-

positive motions and the motions referred to in Rules151 and 152, all motions are regarded as proceduralmotions for the purposes of these rules.

(d) Time for filing objections or responses toprocedural motions-Except as otherwise specifi-cally provided (Rules 72 and 73 and paragraph 21of Appendix C), objections or a response to a pro-cedural motion shall be filed within 10 days after theservice of such motion: Provided, That if a pro-cedural motion states that opposing counsel has noobjection, it may be acted upon as soon after filingas practicable, without awaiting the expiration ofthe 10-day period.

(e) Time for filing reply.-Within 10 days after

the service of objections or a response to a pro-

cedural motion, the moving party may file a reply:Provided, That no enlargement of time for this pur-

pose will be allowed without a showing of excep-

tional cause.

Rule 53. Reference of procedural motions

(a) Reference to commtssioner.-In every caseunder reference to a commissioner, all proceduralmotions will be referred to him as a matter of

course.(b) Action by commissioner.-(1) Order: With

respect to any procedural motion referred to him

pursuant to paragraph (a) of this rule, the commis-sioner shall, by appropriate order, on behalf of thecourt and in his name as commissioner, allow, deny,or otherwise dispose of it, and the order of the com-missioner shall be deemed to be the order of the

court unless subjected to review as hereinafter pro-vided. The commissioner's order shall be filed withthe clerk, and the clerk shall promptly notify theparties of the commissioner's action.

(2) Requirements for procedural motions: Withrespect to form, content, number of copies, time andplace for filing, service, and notice of the actiontaken, the provisions of Rule 51 shall be applicableto procedural motions referred to a commissioner:Provided, That when a commissioner is engaged inthe trial of a case outside Washington, D.C., and de-termines that the filing with him of a proceduralmotion will expedite the disposition of the case thenunder trial, such a motion may be accepted for filingby him. In such instance, he may determine how themotion shall be served on the adverse party, specifywhen and where the response or objection to themotion shall be made, and give notice of his actionon the motion by announcement made in open courtand recorded in the transcript. As soon as practicablethereafter, the written motion, showing the date itwas filed with the commissioner and the action takenby him, together with any written response or ob-jection, shall be returned by him to the clerk.

(3) Review by the court: If any party Is dissat-isfied with the order of the commissioner enteredpursuant to subparagraph (1) of this paragraph (b),he shall file with the clerk, within 10 days afternotice of the order is served, a request for review ofthe commissioner's action, asserting and settingforth with particularity the circumstances reliedupon as showing that the order (I) was erroneouslyor improvidently issued or represents an abuse ofdiscretion and (ii) adversely affects substantialrights of the dissatisfied party. (See Rule 12(d).Also see Rule 214(c) (2) (ii) as to number of copies.)

Rule 54. Reference of dispositive inotions

(a) Reference to commissioner.-In any case un-der reference to a commissioner, the court may byorder refer a dispositive motion to him for hisopinion and recommendation for the conclusion oflaw.

(b) Action by coninssioner.-(1) Recommenda-tion by commissioner: With respect to any disposi-tive motion referred to him, the commissioner shallprepare and file with the clerk his opinion and rec-ommendation for the conclusion of law.

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

(3) Review by the court: (i) If any party is dis-satisfied with the recommendation of the commis-sioner, he shall file with the clerk, within 30 daysafter service of notice of the filing of the commis-sioner's recommendation, a request for review of suchrecommendation and (a) a statement that he relies

on the papers previously filed in connection with themotion, and/or (b) a further brief specifying with

particularity the matters which he wishes the courtto consider in the review and discussing the issuesinvolved. When a further brief is filed by a dissatis-fied party, any adverse party may file an answeringbriet within 30 days, and within 15 days after the

filing of the answering brief a reply brief may be

Page 2314Rule 52


filed. (See Rule 214(d) as to duplication and numberof copies.)

(it) If a timely request for rev!ew of the commis-sioner's recommendation is filed, the case shall beassigned to the calendar for argument before thecourt, unless otherwise disposed of by the court.

(i) In the absence of a timely request for re-view, any party may by motion request that thecommissioner's recommendation be adopted by thecourt as the basis for its judgment. (See Rule 214(c) as to duplication and number of copies.)

Rule 55. Consideration of motions by commissionerIn connection with any motion referred to him,

the commissioner may (a) require the moving partyto supply any additional information to explain thenature and purpose of the motion; (b) schedule themotion for conference or hear oral argument inWashington, D.C., or elsewhere; or (c) take suchother action as in his judgment is requisite to a de-termination by him.

Rule 56. Motions not referred to commissioners(a) Motions under rules 151 and 152.-Motions

authorized by Rules 151 and 152 will not be referredto a commissioner.

(b) Procedural motions in certain situations.-Procedural motions filed after the referral to thecommissioner has been suspended by the filing of adispositive motion (subject to the lifting of suchsuspension by order pursuant to Rule 54(a)), orprocedural motions filed after a case has been re-turned to the court by the commissioner, will notbe routinely referred to the commissioner: Pro-vided, That the court In its discretion may referprocedural motions at any time to the commissionerfor his recommendation or for disposition.

Rule 57. Secretary to the court or clerk authorized toact on certain motions

(a) Motions enumerated.-Any motion for en-largement of time, for leave to file out of time, forwaiver of printing or duplication requirements, forsubstitution of counsel, or for the permanent with-drawal of papers or exhibits theretofore filed by theparties, which requires action by the court as dis-tinguished from a commissioner, may (except as In-dicated in paragraph (d) of this rule) be acted uponby the secretary to the court or, in uds absence, bythe clerk of the court If (1) the motion states thatopposing counsel has no objection or (2) no oppo-sition to the motion has been timely filed.

(b) Maximum time allowable.-In acting on mo-tions for enlargement of time under paragraph (a)of this rule, the total enlargement of time allowedby the secretary to the court or the clerk of the courtwith respect to any matter shall not exceed 30 days,and shall not exceed 20 days with respect to the filingof a reply brief by a party.

(e) Denial of motions for enlargement.-Thesecretary to the court or, in his absence, the clerkof the court may (except as Indicated in paragraph(d) of this rule) deny forthwith a motion request-ing an enlargement of time if it requires action bythe court, as distinguished from a commissioner,and fails to comply with the provisions of Rule 25(b) (2) (1) : Provided, That the denial shall specifi-

cally state that it is without prejudice to the filing,within 10 days after service of such denial, of a re-newed motion for enlargement complying with the

provisions of Rule 25(b) (2) (1).(d) Authority restricted.-The authority dele-

gated in paragraphs (a) and (c) of this rule doesnot extend to any motion for an enlargement oftime (1) for the filing of supplemental memoranda,papers, or briefs after oral argument before thecourt, (2) for the filing of a motion for rehearing,reconsideration, or other relief under Rule 151 orRule 152, or (3) for the filing of papers, motions,or briefs where the court has entered a special orderfixing the time for such action.

(e) Review by the court.-Any action taken underthis rule may be suspended, altered, or rescinded bythe court for cause shown or sua sponte.

V. PARTIES

Rule 61. Parties; capacity

(a) Real party in interest.-Every action shall be

prosecuted in the name of the real party in interest;but an executor, administrator, guardian, trustee ofan express trust, receiver, trustee in bankruptcy,or other representative appointed by a judicial tri-bunal, or a party authorized by statute, may suein his own name without joining with him the partyfor whose benefit the action is brought.

(b) Capacity to sue or be sued.-The capacity ofan individual, other than one acting in a represen-tative capacity, to sue or be sued shall be determinedby the law of his domicile. The capacity of a cor-poration to sue or be sued shall be determined by thelaw under which it was organized. The capacity ofa representative mentioned in paragraph (a) of thisrule to sue or be sued shall be determined by theorder of the judicial tribunal appointing or authoriz-ing the representative and the law of the state orother authority under which the judicial tribunalexercises Jurisdiction.

(c) Infants or incompetent persons.-Wheneveran Infant or incompetent person has a representa-tive, such as a general guardian, committee, con-servator, or other like fiduciary, the representativemay sue or defend on behalf of the Infant or In-

competent person. If an infant or incompetent per-

son does not have a duly appointed representative,he may sue by his next friend or by a guardian

ad litem.

Rule 62. Necessary joinder of parties

(a) Necessary joinder.-Subject to and in the

manner provided by Rule 41, persons having a joint

Interest adverse to the United States shall be made

parties and shall be joined on the same side as plain-

tiffs. When any person who should join as a plaintiff

refuses to do so, he may be made an involuntaryplaintiff.

(b) Names of omitted persons and reasons for

nonjoinder to be pleaded.-In any pleading in whichrelief is asked the pleader shall set forth the names,

if known to him, of persons who ought to be partiesif complete relief is to be accorded between those al-

ready parties, but who are not joined, and shall state

why they are omitted.

Page 2315 Rule 62


Rule 63. Permissive joinder of parties

(a) Permissive joinder.-All persons may join inone action as plaintiffs if they assert in their petitionany right to relief jointly, severally, or in the alter-native, in respect of or arising out of the same trans-actions, occurrences, or series of transactions oroccurrences, and if any question of law or fact com-mon to all of them will arise in the action. A plain-tiff need not be interested in obtaining all the reliefdemanded. Where, in such a petition, two or moreplaintiffs demand separate judgments, the petitionshall state the judgment demanded by each plain-tiff, shall list the plaintiffs alphabetically (on thebasis of surnames where individuals are involved),and shall assign to each plaintiff demanding a sep-arate judgment a number to be used as a distin-guishing subnumeral ((1), (2), etc.) to the docketnumber of the case. No such mutiple-party petitionmay be amended by any such party by adding anynew party plaintiff. Judgment may be given to one ormore of the plaintiffs, according to their respectiverights to relief. (See Rule 34(a) as to caption andnames of parties.)

(b) Separate trials.-In the event of a joinder inaccordance with the provisions of paragraph (a) ofthis rule, the court (or the commissioner) may limitthe trial to the claim of one or more of the plaintiffs,and the proceedings with respect to all other plain-tiffs may be held in abeyance.

Rule 61. Misjoinder of parties; dropping or addingparties; severance

MisJoinder of parties is not a ground for dismissalof an action. At any stage of the action and on suchterms as are just, parties may be dropped or addedby order of the court (1) on its own initiative, or (2)on motion of any party, except that no new partyplaintiff shall be added to a petition filed by multipleplaintiffs upon motion of any of such multiple plain-tiffs. Any claim against a party may be severed andproceeded with separately.

Rule 65. Intervention

(a) When permitted.-Upon timely application,any one may be permitted by the court (or the com-missioner) to intervene in an action (1) when therepresentation of the applicant's interest by exist-ing parties is or may be inadequate and the appli-cant is or may be bound by a judgment in the action,or (2) where the applicant has a pecuniary inter-est in the subject matter of the main action.

(b) Procedure.-A person desiring to interveneshall file with the clerk a motion to intervene. Themotion shall (1) comply with Rule 51; (2) state thegrounds for intervention; (3) be accompanied by apleading setting forth the claim or defense for whichintervention is sought (which pleading shall complywith the requirements of these rules relating topetition or answer, as the case may be (Cc. Rules 21and 37)); and (4) be served by the clerk. Upon thegranting of such motion, the pleading shall beduplicated in conformity with Rule 214(b).

Rule 66. Substitution of parties

(a) Death.-l) If a party dies, the court, uponapplication made within 2 years after the death,may order substitution of the proper party or par-

ties. If the application is made after 2 years, thecourt may order substitution but only upon theshowing of a reasonable excuse for failure to applywithin that period. If substitution is not so made,the action shall be dismissed as to the deceasedparty. An application for substitution may be madeby the successors or representatives of the deceasedparty, or by any party, and shall be filed as providedin Rule 51 and served as provided in Rule 23.

(2) In the event of the death of one or more ofthe plaintiffs in an action in which the right soughtto be enforced survives only to the surviving plain-tiffs, the action does not abate. The death shall besuggested upon the record, and the action shallproceed in favor of or against the surviving parties.

(b) lncompetency.-If a party becomes incom-petent, the court, upon motion filed and served asprovided in paragraph (a) of this rule, may allowthe action to be continued by or against hisrepresentative.

(e) Transfer of interest.-In the case of anytransfer of interest, the action may be continued byor against the original party, except that where thetransfer is not prohibited by law the court may,upon motion, direct the person to whom the interestis transferred to be substituted in the action orjoined with the original party.

VI. DISCOVERY

Rule 71. General provisions governing discovery(a) Discovery methods.-In conformity with

these rules, any party, upon a showing of good cause,may obtain discovery by one or more of the follow-ing methods: (1) depositions (i) upon oral exami-nation (Rule 84) or (ii) by written questions (Rule85) ; (2) subpoenas duces tecum used in conjunc-tion with notice to take depositions (Rule 82) ; (3)admissions (Rule 72) ; (4) interrogatories to parties(Rule 73) ; (5) the production of documents orthings or permission to enter upon land or otherproperty for inspection or other purposes (Rule 74);or (6) calls (Rule 75).

(b) Scope of discovery.-Unless otherwise orderedby the court, the scope of discovery is as follows:

(1) In general: Parties may obtain discovery re-garding any matter, not privileged, which is relevantto the subject matter involved in the pending action,whether it relates to the claim or defense of theparty seeking discovery or to the claim or defenseof any other party, including the existence, descrip-tion, nature, custody, condition, and location of anybooks, documents, or other tangible things and theidentity and location of persons having knowledgeof any discoverable matter. It is not ground for ob-jection that the information sought will be inadmis-sible at the trial if the information sought appearsreasonably calculated to lead to the discovery ofadmissible evidence.

(2) Experts: (i) By means of written interroga-tories in conformity with Rule 73, a party may re-quire any other party (a) to identify each personwhom the other party expects to call as an expertwitness and (b) to state the subject matter onwhich the expert is expected to testify.

(hi) In relation to the expert testimony to beadduced at the trial, the court, on its own motion

Rule 63 Page 2316


or the motion of a party, may require the submissionor exchange of (a) statements of the proposed directtestimony of expert witnesses, in nsrrative or ques-tion and answer form, or (b) summaries of experts'reports. Every such summary shall contain the sub-stance of the report in terms of conclusions and theprincipal facts deemed to support the expert'sconclusions.

(c) Initiation of discovery.-Except as provided inRule 36, no measure for discovery may be Initiatedprior to the filing of an answer or other pleadingresponsive to the petition; and after the schedulingof the tri.l, no measure for discovery may be initi-ated withou, leave of court for good cause shown.The fact that one party is conducting discovery,whether by deposition or otherwise, shall not operateto delay any other party's discovery. Unless the courtupon motion, for the convenience of parties and wit-nesses, orders otherwise, the methods of discoveryhereinabove mentioned (1) may be used concur-rently or in any sequence by any party, and (2) maybe initiated and carried out voluntarily and withoutintervention by, or filing with, the court, if the par-ties so agree.

(d) Stipulation regarding discovery procedure.-Unless the court orders otherwise, the parties, bywritten stipulation filed with the clerk, may somodify the procedures provided by these rules asto permit other methods of discovery, including pro-vision that discovery depositions may be taken beforeany person, at any time or place, upon any notice,and in any manner, and when so taken may be usedlike other discovery depositions.

(e) Leave or order.-(1) A party desiring discov-ery may move for leave or for an order of the courtas provided in the rules cited in paragraph (a) ofthis rule (i) in lieu of seeking agreement for volun-tary discovery by the party from whom discoveryis sought, or di) when such agreement has beensought but not obtained, or (iII) in the event suchan agreement, once made, proves ineffectual.

(2) Every motion for leave or for an order of thecourt shall comply with Rule 51 and shall set out thecircumstances which the moving party regards asgood cause for the granting of leave or the issuanceof an order.

(f) Protective orders.-(1) Upon motion by anyparty or by the person from whom discovery issought, and for good cause shown, the court maymake any order which justice requires to protecta party or person from annoyance, embarrassment,oppression, or undue burden or expense, including(but not limited to) one or more of the following:(I) that the discovery not be had; (i) that the dis-covery may be had only on specified terms and con-ditions, including a designation of the time or place;(iii) that the discovery may be had only by a methodof discovery other than that selected by the partyseeking discovery; (iv) that certain matters not beinquired into, or that the scope of the discovery belimited to certain matters; (v) that discovery beconducted with no one present except persons des-ignated by the court; (vi) that a deposition, afterbeing sealed, be opened only by order of the court;(vii) that a trade secret or other confidential re-search, development, or commercial information notbe disclosed or be disclosed only in a designated way;

or (viii) that the parties simultaneously file speci-fied documents or information enclosed in sealedenvelopes to be opened as directed by the court.

(2) If a motion for a protective order is denied inwhole or in part, the court may, on such terms andconditions as are Just, order that any party or per-son provide or permit discovery.

(g) Supplementation of responses.-A party whohas responded to a request for discovery with a re-sponse that was complete when made is under noduty to supplement his response to include informa-tion thereafter acquired, except as follows:

(1) A party is under a duty seasonably to supple-ment his response with respect to any question di-rectly addressed to (i) the Identity or location ofpersons having knowledge of discoverable matters,or (i) the identity of each person expected to becalled as an expert witness at trial or the subjectmatter on which he is expected to testify.

(2) A party who knows or later learns that hisresponse was incorrect is under a duty seasonablyto correct the response.

(3) A duty to supplement responses may be im-posed by order of the court, agreement of the pax-ties, or at any time prior to trial through requestsfor supplementation of prior responses.

Rule 72. Admissions(a) Motion.-After an answer or other pleading

responsive to the petition has been filed (except asprovided in Rule 36), any party by motion (Rule71(e) ) may apply to the court for an order directingany other party to respond to a request for admis-sions, a copy of which shall be attached to themotion.

(b) Objections to request.-(1) Within 30 daysafter the service of the motion (and request for ad-missions), the party served may file objections onthe grounds that some or all of the requested admis-sions are privileged or plainly irrelevant, or thatthe request is otherwise improper in whole or inpart, or that the requirement of a response wouldresult in annoyance, embarrassment, oppression, orundue burden or expense.

(2) Within 10 days after service of objections, themoving party may file a reply thereto.

(3) Upon consideration of the motion, objections,and reply, the court may make any order pertainingthereto that justice requires.

(c) Request for admissions; content.-A requestfor admissions may contain-

(1) a statement of the material matters of factas to which it is believed that there is no substantialcontroversy between the parties (such statement be-ing phrased clearly and coherently in the form ofdistinct propositions, with the various paragraphsand subparagraphs appropriately numbered or let-tered), followed by a request that the party servedadmit the truth of such matters of fact; and

(2) a list accurately describing the documents thatare to be offered in evidence, accompanied by (i) awritten request for the admission of the genuinenessof any relevant document described in and exhibitedwith the request, of (ii) a written request that theparty served consent to the admission in evidenceof the documents so listed and exhibited with therequest.

Page 2317 Rule 72


(d) Response to request for admissions.-(l)Within 30 days after the service of an order direct-ing a party to respond to a request for admissions,or such other period as may be fixed by the court,the party to whom a request for admissions is di-rected shall (unless lhe is willing for the admissionsto be inferred pursuant to subparagraph (3) of thisparagraph (d) file with the clerk his response tothe request for admissions in form as follows:

,I) a statement admitting or denying the factualpropositions, or asserting that such propositions can-not truthfully be admitted or denied, and indicatingthe reason why this is so; and

hii) a statement (a) conceding the genuinenessor t b) consenting to the admission in evidence ofdocuments, or stating the reasons why the genuine-ness of the documents ior any of them) cannot becoiceded or the objections to the admission in evi-dence of such documents (or an3of them). Reasonsfor refusal to concede the genuineness of docunentsand objections to the admission of documents in evi-dence shall be stated in such terms as to enable the

party making the request for admissions to under-stand the challenge and prepare to meet it if he can.

,2) A denial shall fairly meet the substance of therequested admission, and when good faith requiresthat a party deny only part of a matter concerningwhich an admission is requested, he shall specify somuch of it as is true and deny only the remainder.

43) A factual proposition set out in a request foradmissions shall be deemed admitted, and a docu-ment listed in such a request shall be deemed unob-jectionable, if no response to the part of the request

pertaining to such matter is filed.14) Any proposition of fact expressly admitted

or deemed admitted under this paragraph (d) shallbe conclusively established for purposes of the pend-ing action. Any such admission is for the purposesof the pending action only; it does not constitutean admission by the particular party for any otherpurpose; and it cannot be used against him in anyother civil or criminal action or in any other

proceeding.(51 The court on motion may permit withdrawal

of an admission if the court finds that th6 partyseeking withdrawal acted with due diligence or thatthe other party will not be prejudiced thereby.

Rule 73. Interrogatories to parties

(a) Motion.-After an answer or other pleadingresponsive to the petition has been filed (except as

provided in Ruie 36), any party by motion (Rule71 (e)) may apply to the court for an order directingany other party to respond to written Interroga-tories, a copy of which shall be attached to themotion.

(b) Objections to interrogatories.-(1) Within 30days after the service ef the motion (and writteninterrogatories), the party served may file objec-tions to the interrogatories on the grounds that someor all of them call for privileged information or are

plainly irrelevant, or that they are otherwise im-proper in whole or in part, or that the requirementof a response would result in annoyance, embarrass-ment, oppression, or undue burden or expense.

(2) Within 10 days after the service of objections,the moving party may file a reply thereto.

(3) Upon consideration of the motion, objections,and reply, the court may make any order pertainingthereto that justice rcquires.

(c) Identification o parties.-If the party to bointerrogated is an individual, the interrogatoriesshall be addressed to him. Otherwise, the party shallbe identified as provided for the identification ofdeponents in Rule 84(a) (3) (ii), and the person crpersons designated in conformity with that provi-sion shall respond to the interrogatories.

(d) Response to interrogatories.-Within 30 daysafter the service of an order directing a party to an-swer written interrogatories, or such other periodas may be fixed by the court, the party to whom theinterrogatories are addressed shall file his responsewith the clerk. The interrogatories shall be answeredseparately and fully in writing under oath by theparty addressed, or if the party addressed is a pub-lic or private corporation or a partnership or anassociation, by -i officer or agent thereof, or in thecase of the defendant, by an officer or agent of thedepartmen'., agency, bureau, division, or sectionnamed, wh shal, furnish such information as isavailable to the party. The response shall be signedby the person making it.

(e) Scope and use.-Inteirogatories may relate toany matters which can be inquired into under Rule83(b), and the answers may be used to the sameextent as provided in Rule 88(c) for the use of thediscovery deposition of a party. The provisions ofRule 87 are applicable for the protection of the partyfrom whom answers to interrogatories are soughtunder this rule.

(f) Option to produce business records.-Wherethe answer to an interrogatory may be derived orascertained from the business records of the partyupon whom the interrogatory has been served orfrom an examination, audit, or inspection of suchbusiness records, or from a compilation, abstract,or summary based thereon, and the burden of deriv-ing or ascertaining the answer is substantially thesame for the party serving the Interrogatory as forthe party served, it is a sufficient answer to suchinterrogatory to specify the records from which theanswer may be derived or ascertained, and to affordto the party serving the interrogatory reasonableopportunity to examine, audit, or inspect suchrecords and to make copies thereof or compilations,abstracts, or summaries therefrom.

Rule 74. Production of documents and things and entryupon land for inspection and other purposes

(a) Motion for order.-(1) After an answer orother pleading responsive to the petition has beenfiled (except as provided in Rule 36), any partymay by motion (Rule 71(e) ) apply to the court foran order as specified in paragraph (b) of this rule.

(2) Every such motion shall (i) show with rea-sonable particularity (a) the documents or thingsdesired and (b) how or in what respect they arerelevant to the issues of the case in terms of dis-covery or proof, and (i) state that such documents(or copies thereof) or things are not in the posses-sion of the moving party. Documents and thingsshall be deemed to be defined with reasonable par-ticularity to the extent that each such document

Page 2316Rule 73


or thing is so identified that its extraction from thefiles, or other method of identification and procure-ment, may reasonably be made by the officer or em-ployee responsible therefor.

(b) Issuance of order.-Pursuant to such amotion, the court may-

(1) order any party to produce and permit theinspection and copying or photographing, by or onbehalf of the moving party, of any designated docu-ments, papers, books, accounts, letters, photographs,objects, or other tangible things (hereafter "docu-ments or things"), not privileged, which are in theparty's possession, custody, oi' control and whichconstitute or contain evidence (including the exist-ence, description, nature, custody, condition, andlocation of any documents or things and the identityand location of persons having knowledge of rele-vant facts) regarding any matter that is relevantto the subject matter involved in the pending action,whether it relates to the claim or defense of theexamining party or to the claim or defense of anyother party; or

(2) order any party to permit entry upon desig-nated land or other property in his or its possessionor control for the purpose of inspecting, measuring,surveying, or lhotographing the property or anydesignated object or operation thereon which isrelevant.

(c) Relation to admissible evidence.-It is not aground for objection to the motion that the informa-tion will be inadmissible at the trial if the informa-tion sought appears reasonably calculated to leadto the discovery of admissible evidence.

(d) Scope o/ order.-The order shall specify thetime, place, and manner of making the inspectionor of making the copies and photographs, and mayprescribe such terms and conditions as are just. Thecourt may make an order that the inspection, copy-ing, measuring, surveying, or photographing shall belimited to certain matters, or that secret processes,developments, or research need not be disclosed; orthe court may make any otler order which Justicerequires to protect the party from annoyance, em-barrassment, oppression, or undue burden or ex-pense.

(e) Designation of department or agency.-Everymotion filed under paragraph (a) of this rule whichseeks an order directed to the United States shallspecify the department or agency of the UnitedStates which, according to the moving party's In-formation and belief, has possession, custody, orcontrol of the documents or things sought to beproduced, or which has possession or control of theland or property sought to be entered. Any orderissued pu:suant to such a motion shall be directedto the United States and not to any specific depart-ment or agency thereof.

Rule 75. Calls

(a) Issuance.-(1) On its own motion or themotion of a party plaintiff showing good cause, thecourt may at any time call upon any department oragency of the United States for any information orpapers it deems necessary, to be filed with the clerkwithin a specified tfme.

(2) In any case appropriate for e computation bya department or agency of the United States, thecourt, upon the motion of a party or on its ownmotion, may issue a call for the computation. Within30 days after service of notice of the filing of thecomputation, each party shall signify in writing,filed with the clerk, its acceptance or rejection ofthe computation. A rejection shall be accompaniedby a statement of the reasons therefor.(b) Refusal of compliance.-The head of any de-

partment or agency of the United States may refuseto comply with such a call when, in his opinion,compliance will be injurious to the public interest.Such refusal may be made known by letter signedby the head of the department or agency and ad-dressed to the clerk.

Rule 76. Failure t comply with order for di.covery;sancitions

(a) By deponent.-The consequences of willfulfailure by a deponent (including a party) to appearbefore the officer who Is to take his deposition, or tobe sworn, or to answer questions after having beendirected by the court to do so, shall be as providedin Rule 92.

(b) By a party in relation to requests for adinis-sions, interrogatories, or the production of docu-?nents or things.-If a party (as defined in Rule 92(b) (2) ) willfully fails to comply with an order torespond to a request for admissions, to answer inter-rogatories, or to produce documents or things, or topermit the entry upon land or other property, thecourt, on its own motion or on the motion of a party,may make such orders in regard to the failure asare Just, including (but not limited to) the follow-ing:

(1) an order that the matters regarding which theorder was made or any other designated facts shallbe taken to be established for the purposes of theaction in accordance wit", the claim of the party ob-taining the order;

(2) an order refusing to allow the disobedientparty to support or oppose designated claims or de-fenses, or prohibiting him from introducing desig-nated matters in evidence; or

(3) an order striking pleadings or parts there-of, or staying further proceedings until the orderis obeyed, or dismissing the action or proceeding orany part thereof, or rendering a judgment by de-fault against the disobedient party.

(c) Evasive or incomplete answers or responses.-For the purposes of this rule, an evasive or incom-plete answer or response may be considered a will-ful failure to respond.

VII. DEPOSITIONS

Rule 81. Depositions; leave

(a) Leave required.-Depositions may be takenonly by leave of court as provided in this rule, sub-ject to the exception for the voluntary taking of dis-covery depositions provided in Rule 71.

(b) Motion for leave-A party may file a motionrequesting leave to take the testimony of any person,including another party, by deposition upon oralexamination or upon written questions. Every imotionfor leave shall comply with Rule 51 and shall specify

Page 2319 Rule 81


whether the deposition is desired (1) for the purposeof discovery, (2) for use as evidence in the action,or (2) for use in supplementing or opposing a motionfor summary judgment (or other dispositivemotion), and shall set oat the circumstances whichthe moving party regards as good cause for thegranting of leave.

(c) Objections or responses.-An opposing partyshall be afforded an opportunity to file under Rule52(d) objections or a response to a motion for leaveto take a deposition before the court acts on suchmotion: Provided, That this provision may be waivedby the court in connection with a motion for leaveto take an evidentiary deposition when exceptionalcircumstances appear to warrant such a waiver.

(d) Action on motion for leave.-(l) General:Leave for the taking of a deposition will be grantedonly if the motion requesting such leave shows goodcause therefor.

(2) Evidentiary deposition: Leave for the takingof an evidentiary deposition will be granted onlyupon a finding (i) that it is impracticable for thecommissioner to hear the testimony of the personwhose deposition is desired, or (ii) that there is aneed to perpetuate the testimony of the deponent.

(3) Discovery deposition: (i) A motion for leaveto take a discovery deposition may be denied withor without prejudice (a) if the motion is made be-fore an answer has been filed; or (b) if the motionis made while there is pending before the court an-other motion that may be dispositive of the action;or (c) if it appears that the taking of the depositionwould be impracticable or would cause undue burdenor expense to the deponent or to an opposing party.

(ii) When leave is granted for the taking of adiscovery deposition, or at any time thereafter, suchconditions or limitations may be imposed, in con-formity with or in addition to the provisions of Rule87, as may seem necessary or appropriate for theaccomplishment of the discovery or for the protec-tion of the deponent or of any party.

(4) Deposition in relation to summary judgment:When leave is granted for the taking of a depositionfor use in supplementing or opposing a motion forsummary judgment (or other dispositive motion), orat any time thereafter, such conditions or limitationsmay be imposed, in conformity with or in additionto the provisions of Rule 87, as may seem necessaryor appropriate for the accomplishment of the in-tended purpose or for the protection of the deponentor of any party.

Rule 82. Attendance of witnesses

(a) Subpoenas.-The attendance of depositionwitnesses shall be compelled by the use of subpoenas,as provided in Rule 123, in the absence of a waiver ofthis requirement.

(b) Subpoenas duces tecum.-A subpoena issuedin connection with the taking of a deposition maynot require the production of books, papers, docu-ments, or other tangible things unless permission forthe inclusion of such a requirement is requested inthe motion for leave under Rule 81 and granted upona satisfactory showing by the moving party of thespecific Items to be produced and the need for andthe feasibility of the requirement: Provided, That a

person whose deposition is to be taken for purposesof discovery may by agreement waive the require-ment of this paragraph, respond voluntarily to a re-quest for production, and, if occasion arises, invokethe protection afforded by Rule 87.

Rule 83. Scope and effect of depositions(a) Examination and cross-examination-The

examination and cross-examination of a deponentmay proceed as permitted at the trial under the pro-visions of Rule 133(d).

(b) Scope of examination.-Unless otherwise or-dered, the deponent may be examined regardingany matter, not privileged, which is relevant to thesubject matter involved in the pending action,whether it relates to the claim or defense of the ex-amining party or to the claim or defense of any otherparty. This may include inquiries relative to the ex-istence. description, nature, custody, condition, andlocation of any books, documents, or other tangiblethings, and the identity and location of persons hav-ing knowledge of relevant facts. If the testimony issought for the purpose of discovery and appearsreasonably calculated to lead to the discovery ofadmissible evidence, it shall not be a ground forobjection that the testimony will be inadmissible atthe trial.

(c) Effect of taking deposition.-A party shallnot be deemed to make a person his own witness forany purpose by taking such person's deposition.

Rule 84. Depositions upon oral examination(a) Notice of examination.-1) Filing and serv-

ice: Leave first having been obtained under Rule 81,a party desiring to take the deposition of any personupon oral examination shall file with the clerk, atleast 10 days before the deposition is to be taken,a written notice of intention to take such deposition.An original notice and 3 copies thereof, plus 1 copyfor each additional adverse party (as defined in Rule211(b) ), shall be filed with the clerk, who shall servea copy upon each adverse party as provided in Rule23.

(2) Waiver o notice: The filing and service ofnotice for the taking of a discovery deposition maybe waived by agreement of the parties proceedingvoluntarily pursuant to Rule 71.

(3) Content o notice: (i) The notice (if required)shall state the time and place for taking the deposi-tion and the name and address of each person tobe examined, if known, or, if the name is not known,a general description sufficient to identify him orthe particular class or group to which he belongs.

(ii) A party may in his notice name as thedeponent a public or private corporation, or apartnership or association, or a department or agencyof the United States, or a bureau, division, or sectionof any such department or agency, and designatewith reasonable particularity the matters on whichexamination is requested. The organization sonamed shall designate one or more officers, directors,managing agents, or employees, or other personsduly authorized and consenting to testify on itsbehalf. The persons so designated shall testify as tomatters known or available to the organization.

(b) Submission to witness; changes; signing.-When the testimony is fully transcribed (see Rule

Page 2320Rule 82


90(a) ), the deposition shall be submitted to the wit-ness for examination and shall be read to or by him,unless such examination and reading are waivedby the witness and by the parties. Any changes inform or substance which the witness desires to makeshall be entered upon the deposition by the officerbefore whom taken, with a statement of the reasonsgiven by the witness for making them. The deposi-tion shall then be signed by the witness, unless theparties by stipulation waive the signing, or unlessthe witness is ill or cannot be found or refuses tosign. If the deposition is not signed by the witness,the officer before whom taken shall sign it and stateon the record the fact of the waiver, or of the illnessor absence of the witness, or of his refusal to sign,together with the reasons, if any, given therefor;and the deposition may then be used as fully asthough signed, unless the court (or the commis-sioner), on a motion to suppress under Rule 91(e),holds that the reasons given for the refusal to signrequire rejection of the deposition in whole or inpart.

Rule 85. Depositions upon written questions(a) Written questions; notice of; filing; service.-

A party desiring to take the deposition of any personupon written questions shall attach the questions tohis motion for leave and file the papers with theclerk, together with a notice stating the name andaddress of the person who is to answer the ques-tions (or otherwise identifying the deponent asprovided in Rule 84(a) (3) (1)), and the name ordescriptive title and address of the officer beforewhom the deposition is to be taken. Within 15 daysafter notice that leave has been granted, an adverseparty may file cross-questions, Within 10 days there-after, redirect questions may be filed. Within 10 daysthereafter, recross-questions may be filed. The partyfiling the notice or any set of written questionsreferred to in this paragraph (a) shall furnish theclerk the original and 3 copies thereof, plus 1 copyfor each additional adverse party (as defined in Rule211(b)). Service of copies shall be made upon theparties as provided in Rule 23.

(b) Officer to take responses and prepare record.-Ten days after completion of service upon the parties,unless some other action is taken under Rule 87,the deposition may be taken. The notice and writ-ten questions shall be forwarded by the clerk tothe officer designated in the notice, with directionsto proceed promptly to take the testimony of thewitness in response to the written questions and toprepare, certify, and file or return the deposition,all as provided in Rules 84(b) and 90, attachingthereto the notice and the written questions receivedby him.

(c) Notice of flling.-When the deposition is filedwith the clerk, he shall give notice thereof to theparties.

Rule 86. Depositions pending certiorari(a) When allowed.-In any case (1) which is

pending in the Supreme Court of the United States,or (2) in which a petition for a writ of certiorari hasbeen filed but not acted upon, or (3) in which thetime for filing such a petition has not expired, this

court may allow the taking of depositions of wit-nesses to perpetuate their testimony for use in theevent of further proceedings in this court.

(b) Motion.-A party who desires to perpetuatetestimony under this rule may make a motion forleave to take the depositions, upon the same noticeand service thereof as if the action were pendingin this court. The motion shall comply with Rule 51and shall show (1) the names and addresses of thepersons to be examined; (2) the substance of thetestimony which the moving party expects to elicitfrom each person; and (3) the reasons for perpetuat-ing the testimony.

(c) Action on motion.-If the court finds that theperpetuation of the testimony sought under this ruleis proper to avoid a failure or delay of justice, it maymake an order allowing the depositions to be taken.Thereupon, the depositions may be taken and usedin the same manner and under the same conditionsas are prescribed in these rules for depositions takenin actions pending in this court.

Rule 87. Orders for the protection of parties anddeponents

At any time after the service of notice of the tak-ing of a deposition, whether upon oral examinationor upon written questions, and although leave for thetaking may have been granted, the court, upon mo-tion seasonably made by any party or by the personto be examined and upon notice and for good causeshown, may make an order for the protection of aparty or a deponent in conformity with Rule 71(f).Any such order made by the court shall be in writing,and a signed copy thereof shall be filed in the clerk'soffice. The clerk shall serve a copy of the order oneach of the parties as provided in Rule 23.

Rule 88. Use of depositions as evidence(a) General.-(1) No testimony taken by deposi-

tion shall be considered as part of the evidence in thecase until such testimony is offered and received inevidence at the trial or upon the hearing of a motionor an Interlocutory proceeding.

(2) Subject to the provisions of Rule 91(e), objec-tion may be made at the trial or hearing to receivingin evidence any deposition or part thereof upon theground that it does not qualify for admission underthe provisions of these rules, or upon any otherground which would require the exclusion of the evi-dence if the witness v ere then present and testify-ing.

(3) To the extent that it is admissible under therules of this court and under the rules of evidenceapplied as though the witness were then presentand testifying, any part or all of a deposition maybe used against any party who was present or repre-sented at the time of the taking of the deposition, orwho had due notice thereof.

(4) Any deposition may be used by any partyfor the purpose of contradicting or impeaching thetestimony of the deponent as a witness.

(5) Admissions made in any deposition by a de-ponent who is a party, or who is an officer, agent, oremployee of a party testifying about matters thatare within the scope of the deponent's authority, maybe used at the trial by an adverse party.

Page 2321 Rule 88


(6) If only part of a deposition is offered by a partyand admitted in evidence, an adverse party may re-quire him to introduce any other portion of thedeposition that is relevant to the part Introducedand which is admissible under the rules of evidence,and any party may introduce any other parts of thedeposition that are admissible under the rules ofevidence.

(7) Any party may rebut any relevant evidencecontained in a deposition that is received in evidence,whether introduced by such party or another party.

ib Evidentiary deposition.-An evidentiary dep-osition shall be admissible in evidence to the sameextent and with the same effect as if the deponentwere present and testifying in court.

(c Discovery dcposition.-Except as indicated insubparagraphs (4) - 6) of paragraph (a) of this rule,a deposition taken for the purpose of discovery shallnot be admissible at the trial over objection, unlessit appears (1) that since the taking of the depositionthe witness has died, or 12) that the witness is resi-dent overseas for an indefinite period, unless it ap-pears that the absence of tile witness was procuredby the party offering the deposition, or (3) that thewitness is unable to testify because of age, sickness,infirmity, or imprisonment, or (4) that the partyoffering the deposition has been unable to procurethe attendance of the witness by subpoena, or (5)upon application and notice, that such exceptionalcircumstances exist as to make it desirable, in theinterest of justice and with due regard to the Im-portance of presenting the testimony of witnessesorally and in open court, to allow the deposition tobe used.

(d) Efect of using deposition.-The introductionin evidence of a deposition or any part thereof forany purpose other than that of contradicting or im-peaching the testimony of the deponent makes thedeponent the witness of the party introducing thedeposition, but this shall not apply to the use byan adverse party of the deposition of a person whois a party to the action or who was at the time ofthe taking of his deposition (1) an officer or em-ployee of the United States or of a corporationwholly owned by the United States, or (2) an officer,director, managing agent, or employee of a publicor private corporation, partnership, or associationwhich is a party to the action.

(e) Substitution of parties.-Substitution ofparties does not affect the right to use a depositionpreviously taken. When an action In this court hasbeen dismissed and another action involving thesame subject matter Is afterwards brought betweenthe same parties or their representatives or succes.sors in interest, any deposition lawfully taken andduly filed in the former action may be used in thelatter as if originally taken therefor.

Rule 89. Persons before whom depositions may betaken

(a) Within the United States.-Within theUnited States or within a territory or insular pos-session subject to the dominion of the United States,depositions shall be taken before an officer author-ized to administer oaths by the laws of the UnitedStates or of the place where the examination is held,

or before a person appointed by the court. A personso appointed has power to administer oaths and totake such testimony.

(b) In foreign countries.-In a foreign country,depositions may be taken (1) on notice before aperson authorized to administer oaths In the placein which the examination is held, either by the lawthereof or by the law of the United States, or (2)before a person commissioned by the court, and aperson so commissioned shall have the power byvirtue of his commission to administer any neces-sary oath and take testimony, or (3) pursuant to aletter rogatory. A commission or a letter rogatoryshall be issued on application and notice and onterms that are just and appropriate. It is not re-quisite to the issuance of a commission or a letterrogatory that the taking of the deposition in anyother manner is impracticable or inconvenient; andboth a commission and a letter rogatory may be is-sued in proper cases. A notice or commission maydesignate the person before whom the deposition isto be taken either by name or descriptive title. Aletter rogatory may be addressed "To the Appro-priate Authority in [here name the country]." Evi-dence obtained in response to a letter rogatory neednot be excluded merely for the reason that it is nota verbatim transcript, or that the testimony was nottaken under oath, or for any similar departure fromthe requirements for depositions taken within theUnited States under these rules.

(c) Disqualification for interest.-Except as pro-vided In paragraph (b) of this rule, no depositionshall be taken before a person who is a relative oremployee or attorney or counsel of any of theparties, or who is a relative or employee of such at-torney or counsel, or who Is financially interested inthe action.

(d) Fees of officer taking deposition.-The partyat whose instance the deposition is taken shall beresponsible for the payment of the officer's fees fortaking, transcribing, and returning the depositionto the clerk. Failure to make payment of the officer'sfees may be deemed by the court (or the commis-sioner) a sufficient ground for refusing to receivethe deposition or any part thereof in evidence.

Rule 90. Record of examination; exhibits; filing;return

(a) Record of testinony.-(l) Oath; transcrip-tion: The officer before whom any deposition is takenshall put the witness on oath (or affirmation) andshall personally, or by someone acting under hisdirection and in his presence, record the testimonyof the witness. The testimony shall be recordedstenographically or electronically, and shall be tran-scribed unless the parties agree otherwise.

(2) Objections: All objections made at the timeof the examination (i) to the qualifications of theofficer taking the deposition, or (11) to the mannerof taking it, or (IiI) to the evidence presented, or(iv) to the conduct of any party, or (v) any otherobjections to the proceedings, shall be noted by theofficer upon the deposition. Evidence objected toshall be taken subject to the objections.

(3) Use of written questions: In lieu of partici-pating in an oral examination, parties served with

Rule 89 Page 2322


notice of the taking of a deposition may transmitwritten questions to the officer, who shall propoundthem to the witness and record the answers verbatim.

(b) Exhibits.-All exhibits shall be numbered andcarefully marked with the title and number of thecase, and by which side offered, so as to be capableof immediate identification. The exhibits shall notbe affixed to the deposition but shall accompany it,except that when the deposition is taken for dis-covery, the parties may agree that each party retainthe exhibits he identified or offered at the time ofthe taking of the deposition.

(c) Certification by officr.-The officer shallcertify on the deposition that the witness was dulysworm (or affirmed) by him and that the depositionis a true record of the testimony given by the witness.

(d) Filiqg by ojffcer.-(1) Every deposition takenfor use as evidence at the trial on the merits of apending action (including a deposition taken pend-ing certiorari) shall be securely sealed by the officerbefore whom it was taken, in an envelope endorsedwith the title and number of the action. The envelopeshall be marked "Deposition of [here insert nameof witness]," and the officer shall promptly file itwith the clerk or send it by certified or registeredmail to the clerk for filing.

(2) The clerk shall give notice of the filing of thedeposition to the parties.

(e) Return of other depositions.-The officer be-fore whom a deposition is taken for discovery orfor use in supplementing or opposing a motion forsummary judgment (or other dispositive motion)shall make his return to the parties in accordancewith arrangements made by him with the partiesor in conformity with the instructions of the partytaking the deposition. Unless otherwise ordered bythe court (or the commissioner), discovery deposi-tions shall not be filed with the clerk.

Rule 91. Effect of errors and irregularities in depo-sitions

(a) As to notice.-All errors and irregularities inthe notice for taking a deposition are waived unlesswritten objection is promptly filed with the clerkafter service of the notice.

(b) As to disqualification of officer.-ObJection totaking a deposition because of disqualification ofthe officer before whom it is to be taken is waivedunless made before the taking of the deposition be-gins or as soon thereafter as the disqualificationbecomes known or could be discovered with reason-able diligence.

(c) As to taking o1 deposition.-(1) Objections tothe competency of a witness, or to the competency,relevancy, or materiality of testimony, are not waivedby failure to make them before or during the takingof the deposition, unless the ground of the objectionis one which might have been obviated or rermovedif presented at that time.

(2) At the taking of a deposition upon oralexamination, errors and irregularities occurring inthe manner of taking the deposition, in the formof the questions or answers, in the oath or affirma-tion, or in the conduct of parties, and errors of anykind which might be obviated, removed, or cured ifpromptly presented, are waived unless seasonable

objection thereto is made at the taking of thedeposition.

(3) Objections to the form of written questionssubmitted under Rule 85 are waived unless filed withclerk within the time allowed for liling the succeed-ing questions, or, with regard to the last questionsauthorized, within 10 days after they are rerved.

(d) Service o objections.-At the tine of Ailingthe objections referred to in paragraphs (a) and(W) (3) of this rule, the party filing the same shallfurnish the clerk the original and 3 copies thereof,plus 1 copy for each additional adverse party (asdefined in Rule 211(b) ). Service of such copies shallbe made as provided in Rule 23.

(e) As to completion and return of deposition.-Errors and Irregularities in the manner in which thetestimony is transcribed, or the deposition is prc-pared, signed, certified, sealed, endorsed, trans-mitted, filed, or otherwise dealt with by theofficer under Rule 90, are waived unless a motion tosuppress the deposition of some part thereof is madewith reasonable promptness after such defect is,or with due diligence might have been, ascertained.

Rule 92. Refusal of deponent to testify; consequences

(a) Refusal to answer.-If a deponent (includinga party) refuses to answer any question propoundedupon oral examination conducted pursuant to Rule84, the examination shall be completed on othermatters or adjourned, as the proponent of the ques-tion may prefer. Thereafter, on reasonable noticeto all persons affected thereby, he may apply to thecourt for an order-compelling an answer.

(b) Failure to give deposition or to comply withorder.-(1) Contempt: If any person (including aparty), after being served with a subpoena or havingwaived this requirement, willfully fails to appear be-fore the officer who is to take his deposition or refusesto be sworn, or if any person (including a party)willfully fails to obey an order made under para-graph (a) of this rule requiring him to answer des-ignated questions, or willfully fails to answer awritten question submitted pursuant to Rule 85, suchfailure may be considered contempt of court.

(2) Other consequences: If any party (which, inrespect to a plaintiff or a third party, shall includeany officer, director, mdnaging agent, or employeeof a public or private corporation or of a partnershipor association, as well as an individual; and which,in respect to the defendant, shall include any officeror employee of the United States or of any corpora-tion wholly owned by the United States) refuses toobey an order made under paragraph (a) of thisrule requiring him to answer designated questions,or willfully fails to give his deposition, the court maymake such orders in regard to the refusal or failureas are just. These may include, among others, thefollowing orders:

(i) an order that the matters regarding which thequestions were asked, or any other designated facts,shall be taken to be established for the purposes ofthe action in accordance with the claim of the partyobtaining the order; or

(ii) an order pursuant to paragraph (b) or (c) ofRule 76.

Page 2323 Rule 92


(c) Failure to respond to letters rogatory.-If anycitizen or resident of the United States fails to re-spond to a letter rogatory, a subpoena may be issuedas provided in 28 U.S.C. § 1783, under the circum-stances and conditions stated In subsections (a) (1)and (b) of that section.

VIII. SUMMARY JUDGMENT; DISMISSALS

Rule 101. Summary judgment(a) For claimant.-SubJect to the provisions of

paragraph (c) of this rule, a party seeking to recoverupon a claim or counter-claim may, at any time aftera responsive pleading or a dispositive motion hasbeen filed by the adverse party, move with or withoutsupporting affidavits for summary Judgment in hisfavor upon all or any part thereof.

(b) For defending party.-Subject to the provi-sions of paragraph (c) of this rule, a party againstwhom a claim or counterclaim is asserted may at anytime move with or without supporting affidavits forsummary judgment in his favor as to all or any partthereof.

(c) When leave is required.-A motion for sum-mary judgment may not be filed by any party ex-cept by leave of the court (or the commissioner) (1)after the case has been set for trial, or (2) after thefiling of a stipulation of the parties or a pietrialmemorandum containing all of the material facts,or (3) after the filing of his response to a dispositivemotion by an adverse party.

(d) Motion and proceedings thereon.-After amotion for summary judgment has been filed, andafter the expiration of the time allowed for a re-sponse thereto or for a reply to the response, if any(Rule 52(b) ), such motion may (subject to the provi-sions of Rules 54(b), 146(b) (2), and 166(b)) beassigned to the calendar. (See Rules 14(b) (2).) Thejudgment sought shall be rendered if the pleadings,depositions, and admissions on file, together with theaffidavits, if any, show that there is no genuine Issueas to any material fact and that the moving party isentitled to a ,udgment as a matter of law. A sum-mary judgment may be rendered on the issue ofliability alone although there is a genuine issue asto the amount of damages.

(e) Case not fully adjudicated on inotion.-If, onmotion under this rule, judgment is not renderedupon the whole case or for all the relief asked anda trial is necessary, the court may ascertain (if itis practicable to do so upon the basis of examiningthe pleadings and the evidence before It and Inter-rogating counsel) what material facts exist withoutsubstantial controversy and what material facts arein good faith controverted. It shall thereupon makean order specifying the facts that appear to be with-out substantial controversy (including the extent towhich the amount of damages or other relief is notin controversy), and directing such further proceed-ings in the action as are Just. Upon the trial of theaction, the facts so specified shall be deemed to beestablished, and the trial shall be conductedaccordingly.

(f) Form of Affidavits; further testimony..-Sup-porting and opposing affidavits shall be made on per-sonal knowledge, shall set forth such facts as would

be admissible in evidence, and shall show affirma-tively that the affiant is competent to testify to thematters stated therein. Sworn or certified copies ofall papers or parts thereof referred to in an affidavitshall be attached thereto or served therewith. Thecourt may permit affidavits to be supplemented oropposed by depositions or by further affidavits. Whena motion for summary judgment is made and sup-ported as provided in this rule, an adverse party maynot rest upon the mere allegations or denials of hispleading, but his response, by affidavits or as other-wise provided in this rule, must set forth specificfacts showing that there is a genuine issue for trial.If he does not respond, summary judgment, if ap-propriate, will be entered against him.

(g) When affidavits are unavailable.-Should itappear from the affidavit of a party opposing themotion that he cannot, for reasons stated, presentby affidavit facts essential to justify his opposition,the court may deny the motion for summary judg-ment, or may order a continuance to permit affi-davits to be obtained or depositions to be taken ordiscovery to be had, or may make such other orderas is Just.

(h) Affidavits made in bad faith.-Should it ap-pear to the satisfaction of the court at any time thatany of the affidavits presented pursuant to this ruleare presented in bad faith or solely for the purposeof delay, the offending party or attorney may beadjudged guilty of contempt.

Rule 102. Dismissal of actions(a) Voluntary dismissal; effect thereof.-(1) By

plaintiff; by stipulation: Subject to the provisionsof any statute of the United States, an action maybe dismissed by the plaintiff without order of thecourt (i) by filing a notice of dismissal at any timebefore service of the answer or of a motion forsummary judgment, whichever first occurs, or (ii)by filing a stipulation of dismissal signed by theadverse parties, or (iii) by filing a motion to dismissendorsed "no objection" by the adverse parties. Un-less otherwise stated in the notice of dismissal orstipulation, the dismissal is without prejudice, exceptthat a notice of dismissal operas as an adjudicationupon the merits when filed by a plaintiff who hasonce dismissed in any court of the United States anaction based on or including the same claim.

(2) By order of court: Except as provided in sub-paragraph (1) of this paragraph (a), an action willnot be dismissed at the plaintiff's instance exceptupon order of the court and upon such terms andconditions as the court deems proper. Unless other-wise specified in the order, a dismissal under thissubparagraph (2) is without prejudice.

(b) Involuntary dismissal; effect thereof.-(1)Upon its own motion, the court may dismiss anyaction at any time.

(2) For failure of the plaintiff to prosecute theaction or to comply with these rules or with anyorder of the court, the defendant may move that thecourt dismiss the action. (Cf. Rules 76, 92, and 114.)

(3) Unless the court in its order for dismissalotherwise specifies, a dismissal under paragraphs(b), (c), or (d) of this rule, and any dismissal notprovided for in this rule (other than a dismissal for

Page 2324Rule 101


lack of jurisdiction), operates as an adjudicationupon the merits.

(c) InsuffIciency of evidence.-(1) Promptly afterthe plaintiff has completed the presentation of hisevidence, the defendant may, by motion, ask for adismissal of the action on the ground that on thefacts and the law the plaintiff has not shown a rightto recover: Provided, That if a counterclaim is pend-ing, the motion shall be deemed to be a motion forjudgment by the court that the plaintiff is not en-titled as a matter of law to recover. The motionmay be made orally in open court or filed in writtenform within such time as may be fixed by the com-missioner. The motion shall be without prejudiceto the right of the defendant to present evidence ifthe motion is denied. If a motion is made in opencourt and is there denied by the commissioner, norecord of the motion or of the action thereon, otherthan that contained in the transcript, need be made.When the motion is denied in open court, the defend-ant may be required to proceed promptly with thepresentation of its evidence.

(2) In cases where (i) the commissioner grantsdefendant's motion when made (subject to approvalby the court), or (ii) the commissioner desires todefer his ruling, or (li) the motion is not made inopen court, the commissioner shall enter an orderclosing proof for the purposes of this paragraph (c),whereupon the parties, in conformity with Rule 134,shall file requested findings of fact and briefs insupport of and in opposition to the motion, exceptthat defendant shall file first.

(3) If the commissioner concludes that the mo-tion should be granted, he shall make and file hisfindings of fact material to the issues raised by themotion and his recommendation for the conclusionof law thereon. His report shall state, at the begin-ning thereof, that it is submitted pursuant to a mo-tion made under the authority of this paragraph (c).Subsequently, all proceedings shall be the same as ina case where a commissioner's report is filed uponthe entire evidence produced by both parties. Thecourt may render judgment against the plaintiff, ormay remand the case for the taking of additionalevidence.

(4) If, in a situation where the ruling has been

deferred, the commissioner concludes that the mo-tion should be denied, he shall deny the motion byorder filed with the clerk; and the defendant maybe required to proceed promptly thereafter with thepresentation of its evidence.

(d) Effect of counterclaim.-No action over whichthe court has jurisdiction and in which the defendanthas pleaded a counterclaim or filed a motion forleave to plead a counterclaim shall be dismissedover an objection by the defendant, unless the courtdetermines that the counterclaim should also be dis-missed: Provided, That after the service of theplaintiff's motion for dismissal of the action, thedefendant may move that, In lieu of dismissal, thecourt enter judgment that the plaintiff is not entitledas a matter of law to recover.

(c) Dismissal of counterclaim, cross-claim, orthird-party claim.-The provisions of this rule applyto the dismissal of any counterclaim, cross-claim, orthird-party claim.

:13-381 0-70-vol. 2- 50

IX. PRETRIAL PROCEDURES

Rule 111. Pretrial orders

(a) General.-The commissioner may, in his dis-cretion, direct the attorneys for the parties, or anyparty not represented by an attorney, to take suchaction in preparation for a pretrial conference or fortrial as may aid in the disposition of the cause, in-cluding, but not limited to, any of the actions pro-vided for in the subsequent paragraphs of this rule.

(b) Parties to confer.-The commissioner maydirect any party to confer with any other partyat any stage of the case on any matter pertainingthereto.

(c) Admissions.-The commissioner may directany party to serve on any other party a request foradmissions under Rule 72.

(d) Accounting.-(1) The commissioner maydirect any party whose claim or counterclaim isbased, in whole or in part, on books of account orother records of that party to furnish to any otherparty a statement showing the items and figures ap-pearing in such books or records which the claimantintends to prove, with adequate references to thebooks or records from which such figures were taken,

and to make all such books and records, or any partthereof, available for examination by the otherparty.

(2) The commissioner may direct any party towhom any statement of items and figures has beensubmitted under subparagraph (1) of this para-graph (d) either (i) to make an examination of thebooks and records of the submitting party and tofurnish to such party a schedule or schedules show-ing the results of such examination, with specific

references to the books and records from which weretaken any figures that the examining party has

found to differ from the figures contained in thestatement submitted; or (i) to waive any challenge

of the accuracy of the statement submitted as reflect-ing the contents of the books and records of thesubmitting party.

(e) Miscellaneous schedule.-The commissioner

may direct the submission (or a response to a sub-

mission) by any party (1) of statements of con-tentions as to the applicable measure of damages, or(2) of schedules of items and figures organized insuch manner as to explain any assembly of figures(including computations and the components there-of) intended for use in support of a claim, counter-claim, defense, cross-statement, or offset.

(f) Use of accounting schedules and other submis-sions.-No statement, schedule, submission, or re-sponse thereto made pursuant to paragraph (d) or

(e) of this rule shall become evidence in a case untiloffered and received in evidence at a pretrial con-ference, at the trial, or upon the hearing of a motionor interlocutory proceeding; nor shall any verifica-

tion of items or figures be deemed an admission ofliability unless expressly so stated. The introduction

into evidence of any such statement, schedule, sub-

mission, or response shall be subject to the same ob-

jections by any party as might be made to the in-

troduction of other evidence.

Rule 111Page 2325


(g) Submissions.-(l) The commissioner may di-rect any party to submit to him (with a copy to anyother party)-

(I) a short narrative statement (in the nature ofan opening statement at the trial) of the proof to beadduced, either by oral testimony or by documentaryevidence, or both;

(Ii) a brief statement of his contentions in termsof ultimate facts and conclusions of law, and a suc-cinct statement of points and authorities by way ofanalysis of legal issues;

(iii) a statement of the issues of fact in contro-versy;

(iv) a statement of the issues of law;(v) a list of the prospective witnesses, giving as

to each witness the name, address, and occupation,and the issue or issues of fact to which his testimonywill be directed;

(vi) a statement showing the location or locationswhere the party desires that the witnesses be heard,and an estimate of the time that will probably berequired in each location for the examination andcross-examination of the party's witnesses at thatplace; and

(vii) a statement as to when the party will beready for trial.

(2) Notwithstanding any submission made in goodfaith pursuant to subparagraph (1) of this para-graph (g), a party may, for an," cause shown, alterpositions in relation to facts or law, or call witnessesother than those listed, in order to meet the exigen-cies of the case as it develops.

(11) Preliminary pretrial memorandum.-Thecommissioner may direct any party to prepare andsubmit to any other party a memorandum contain-ing all matters requisite to a pretrial conference atwhich agreement may be sought as to the authen-ticity and admissibility of documents, uncontro-verted facts, issues of fact, issues of law, and the timeand place (or places) and probable duration of thetrial.

Rule 112. Pretrial conferences(a) Scheduling of pretrial conference.-In any

action, the commissioner may, in his discretion, di-rect the attorneys for the parties, or any party notrepresented by an attorney, to appear before himprior to trial in order to consider-

(1) the simplification of the issues;(2) the necessity or desirability of amendments

to the pleadings;(3) the possibility of avoiding unnecessary proof

(i) by the admission of facts and (ii) by the recep-tion of documents in evidence;

(4) the limitation of the number of expert wit-nesses and the exchange between the parties priorto trial of written statements by such witnesses com-prising their direct testimony in the action (cf. Rule71(b) (2)) ;

(5) incorporating in the record factual data ordocumentary evidence pursuant to proceedingstheretofore had under Rule 111; and

(6) such other matters as may aid in the disposi-tion of the action.

(b) Authority of attorneys.-An attorney appear-ing at a pretrial conference on behalf of a party,whether the United States or a private party, should

preferably be the attorney who will try the case forsuch party, be thoroughly familiar with the case,and be authorized to act for the party he representsat the conference.

Rule 113. Pretrial memorandum or orderThe commissioner shall make a memorandum or

order reciting agreements reached, orders made, andactions taken at any pretrial conference under Rule112 or pursuant to proceedings under Rule 111. Heshall file with the clerk the original of every suchmemorandum or order, and 1 additional copy foreach party for service by the clerk. The pretrialmemorandum or order may be modified upon motionfiled by a party within 10 days (or such other timeas may be fixed by the commissioner) after service.Subject to such modification, the memorandum ororder shall become part of the record and shallgovern future proceedings in the action.

Rule 114. Compliance and noncompliance(a) Pretrial rules liberally construed.-Each of

the foregoing rules relating to pretrial procedure(Rules 111-13) shall be construed liberally to expe-dite the trial of cases without depriving any partyof any just claim, defense, or objection.

(b) Effect of noncompliance.-Upon the failureor refusal of a party to comply with any order or di-rection by the commissioner pursuant to the rulesrelating to pretrial procedure (Rules 111-13), thecommissioner may-

(1) order that the facts pertaining to the matterin default shall be taken to be established for thepurposes of the action in accordance with the con-tention of the party submitting documents or re-quests for admissions;

(2) declare a waiver of challenge of the accuracyof any statement or schedule of items and figuresreflecting submissions made pursuant to Rule 111 (d)or (e) ;

(3) refuse to allow the disobedient party to sup-port or oppose designated claims or defenses;

(4) prohibit the disobedient party from introduc-ing in evidence designated documents or items oftestimony; or

(5) recommend the dismissal of the action or pro-ceeding, or any part thereof, or the rendition ofjudgment by default against the disobedient party.

X. INCIDENTS OF TRIALS

Rule 121. Incidents of trials before commissioners(a) Witnesses; evidence.-The commissioner shall

put witnesses under oath or affirmation and shallrule upon the admissibility of evidence. He may calland examine witnesses, including the parties to theaction; and he may require the production beforehim of evidence upon all pertinent matters, includ-ing the production of all books, papers, vouchers,writings, documents, plans, drawings, materials, orapparatus of any nature applicable thereto.

(b) Directing witness to answer.-If any witness,including a party, refuses to answer any questionpropounded upon oral examination in the course of atrial, the commissioner may direct him to answer.

(c) Contempt.-If any person, including a party,called as a witness refuses to be sworn (or to af-

Rule 112 Page 2326


firm) in the course of a trial, or refuses to answerany question after being directed to do so by thecommissioner, the refusal may be considered con-tempt of court.

(d) Exceptions unnecessary.-Except as providedin Rule 141, formal exceptions to rulings or orders ofthe commissioner are unnecessary. It is sufficientthat a party, at the time the ruling or order is madeor sought, make known to the commissioner theaction which he desires the commissioner to take orhis objection to the action of the commissioner, andhis grounds therefor. If a party has no opportunityto object to a ruling or order at the time It is made,the absence of an objection does not thereafterprejudice him.

(e) Recommendation for dismissal of action.-The commissioner may recommend the dismissal bythe court of an action or counterclaim (1) by wayof sanction upon the failure or refusal of a party tocomply with an order or the requirement of a rule,or (2) for insufficiency of the evidence as providedby Rule 102 (c).

Rule 122. Reporting arrangements; return of tran-script

(a) Record of proceedings.-The party whoseevidence is to be taken shall (1) furnish a competentand disinterested reporter to be take down the trialproceedings and transcribe the same; and (2) priorto such trial proceedings file a certificate (on a formsupplied by the commissioner) that the reporter hasagreed to comply with the requirements of para-graph (d) of this rule without regard to the financialarrangements between the party and the reporter.

(b) Reporter; control; oath.-The reporter shallbe under the jurisdiction and control of the com-missioner. Before the taking of any evidence, thecommissioner shall administer the following oath(or affirmation) :

Do you swear (or affirm) that you will well and trulytake down and transcribe the proceedings in this trialand do all other things required of you by the commis-sioner In connection therewith; and that, pursuant tothe rules, you will file with the clerk the original copyof the transcript and the exhibits, irrespective of yourfinancial arrangements wtih counsel?

(c) Preparation of transcript and exhibits.-Thepreparation of the transcript of proceedings, includ-ing the exhibits, shall be in conformity with the In-structions to Reporters and Forms contained in Ap-pendix A of these rules.

(d) Return o1 transcript and exhibts.-Unlessotherwise ordered by the commissioner, the reportershall file the transcript of the trial proceedings, in-cluding the exhibits admitted in evidence or desig-nated to accompany the transcript (Rule 133(e) (2) ),with the clerk within 30 days after the conclusion ofthe trial session at which such proceedings wereheld. The filing may be accomplished by personallydelivering the transcript and exhibits to the clerk'soffice or by enclosing them in a packet and trans-mitting them to the Clerk, United States Court ofClaims, 717 Madison Place, N.W., Washington, D.C.20005, in sufficient time for the transcript and ex-hibits to be filed within the prescribed period. Theobligation for the filing of the transcript and exhibitswithin the prescribed period rests upon the reporter,

irrespective of the nature of the financial arrange-ments that have been made with him for his services.In the event the transcript and exhibits are notfiled within the period prescribed herein, or anyextension thereof, the commissioner may close theproof and make findings of fact on the basis of theevidenre theretnfnre introduced and filed with theclerk, or may recommend the issuance of a ruleagainst the responsible party to show cause why thepetition or counterclaim should not be dismissed.

Rule 123. Subpoenas(a) Form; issuance.-Every subpoena shall be is-

sued by the clerk under the seal of the eourt, shallstate the name of the court and the title of theaction, and shall command each person to whom itis directed to attend and give testimony at a timeand place therein specified. In issuing a subpoena(including a subpoena for the production of docu-mentary evidence) to a party requesting it, the clerkshall sign and seal the subpoena but otherwise leaveit blank. The party to whom the subpoena is issuedshall fill it in before service.

(b) Subpoenas for attendance of witnesses atscheduled hearing or trial.-(1) At the request ofany party, subpoenas for the attendance of witnessesat a hearing or trial shall be issued by the clerk. Asubpoena requiring the attendance of a witness at ahearing or trial may be served at any place within100 miles (by the shortest usual means of travel)of the place of the hearing or trial specified in thesubpoena; but the court, upon proper applicationand good cause shown, may authorize the serviceof a subpoena at any other place.

(2) Subpoenas bearing the seal of the court andthe signature of the clerk, with the remainder blank,may be issued to the commissioner, who may orderservice on his own motion or release them to theparties for service.

(3) A subpoena directed to a witness in a foreigncountry shall be issued under the circumstances andin the manner, and shall be served, as provided in 28U.S.C. §§ 1781-84.

(c) Subpoena for production of documentary evi-dence.-For good cause shown, a subpoena, in addi-tion to requiring attendance, may also command anyperson to whom It is directed to produce relevantbooks, papers, documents, or tangible things desig-nated therein. In such a situation, the court uponmotion made promptly, and in any event not laterthan the time specified in the subpoena for com-pliance therewith, may (1) quash or modify the sub-poena if it is unreasonable and oppressive, or (2)require the person in whose behalf the subpoena wasissued to advance the reasonable cost of producingthe books, papers, documents, or tangible things.Where the circumstances require, the court may actupon such a motion at any time after a copy hasbeen served upon the opposite party.

(d) Subpoena for taking depositions; place ofexanmination.-(1) The filing of a notice to take adeposition, as provided in Rule 84 or Rule 85, con-stitutes a sufficient authorization for the issuanceby the clerk of a subpoena for the attendance of thepersons named or described therein. Subject to theprovisions of Rule 82(b), the subpoena may also

Rule 123Page 2327


command any person to whom it is directed to prod-uce designated books, papers, documents, or tangiblethings which constitute or contain evidence relatingto any of the matters within the scope of the ex-amination permitted by Rule 83(b). In that event,the subpoena will be subject to the provisions ofRule 87 and paragraph (c) of this Rule 123.

(2) A witness may be required to attend an ex-amination upon deposition only in the countywherein he resides or is employed or transacts hisbusiness in person, or at such other convenient placeas is fixed by order of the court.

(c) Scrvice.-(1) A subpoena may be served bythe bailiff, by a United States marshal or his deputy,or by any other person who is not a party and is notless than 18 years of age. Service of a subpoena upona person named therein shall be made by tenderingto him the fees for 1 day's attendance and the mile-age allowed by law. (28 U.S.C. § 1821.) When thesubpoena is issued on behalf of the United Statesor an officer or agency thereof, fees and mileageneed not be tendered.

(2) The party at whose instance a subpoena isissued shall be responsible for the payment of wit-ness fees and mileage, as well as fees and mileage ofthe officer who serves the subpoena. The failure tomake payment of such charges on demand may bedeemed by the court as a sufficient ground for strik-ing the testimony of such witness.

(f) Contempt.-Failure by any p-sin withoutadequate excuse to obey a subpoena served upon himmay be deemed contempt of court.

Rule 124. Proof of official record(a) Authentication.-(1) Domestic: An official

record kept within the United States, or any state,district, commonwealth, territory, or insular pos-session thereof, or within the Panama Canal Zone,the Trust Territory of the Pacific Islands, or theRyukyu Islands, or an entry therein, when admis-sible for any purpose, may be evidenced by an offi-cial publication thereof or by a copy attested by theofficer having the legal custody of the record, or byhis deputy, and accompanied by a certificate thatsuch officer has the custody. The certificate may bemade by a judge of a court of record of the districtor political subdivision in which the record is kept,authenticated by the seal of the court, or may bemade by any public officer having a seal of office andhaving official duties in the district or political sub-division in which the record is kept, authenticatedby the seal of his office.

(2) Foreign: A foreign official record, or an entrytherein, when admissible for any purpose, may beevidenced by an official publication thereof or by acopy thereof, attested by a person authorized tomake the attestation, and accompanied by a finalcertification as to the genuineness of the signatureand official position (I) of the attesting person, or(ti) of any foreign official whose certificate ofgenuineness of signature and official position relatesto the attestation or is in a chain of certificates ofgenuineness of signature and official position relat-ing to the attestation. A final certification may bemade by a secretary of an embassy or legation, con-sul general, consul, vice consul, or consular agent

of the United States, or a diplomatic or consular offi-cial of the foregin country assigned or accreditedto the United States. If reasonable opportunity hasbeen given to all parties to investigate the authen-ticity and accuracy of the documents, the commis-sioner may for good cause shown (i) admit an at-tested copy without final certification or (it) permitthe foreign official record to be evidenced by anattested summary with or without a final certifica-tion.

(b) Lack of record.-A written statement thatafter diligent search no record or entry of a specifiedtenor is found to exist in the records designatedby the statement, authenticated as provided in para-graph (a) (1) of this rule in the case of a domesticrecord, or complying with the requirements of para-graph (a) (2) of this rule for a summary in the caseof a foreign record, is admissible as evidence thatthe records contain no such record or entry.

(c) Rcgulations.-(1) In a trial on the merits, orin making or opposing a motion, a party relying ona rule or regulation shall submit the full authentictext thereof for inclusion in the record, unless it ispublished in the Federal Register or in the Code ofFederal Regulations. A rule or regulation so fur-nished need not be certified as a record in accord-ance with paragraph (a) (1) of this rule.

(2) The court (or the commissioner) may requirethe appropriate party to furnish the full authentictexts of additional rules or regulations not publishedin the Federal Register or in the Code of FederalRegulations.

(d) Other proof.-This rule does not prevent theproof of official records or of entry or lack of entrytherein by any other method authorized by law.

Rule 125. Determination of foreign lawA party who intends to raise an issue concerning

the law of a !oreign country shall give notice in hispleadings or other reasonable written notice. Thecourt (or the commissioner) in determining foreignlaw, may consider any relevant material or source,including testimony, whether or not submitted by aparty or admissible under Rule 133. The determina-tion of foreign law shall be treated as a ruling on aquestion of law.

XI. TRIALS

Rule 131. Consolidation; separate trials; interlocutorydeterminations; final judgments

(a) Consolidation.-When actions involving acommon question of law or fact are pending, thecommissioner may order a joint trial of any or allthe matters in issue in the actions, or he may orderthe actions consolidated, or he may make such otherorders concerning the proceedings therein as maytend to avoid unnecessary costs or delay.

(b) Separate trials.-The commissioner, in fur-therance of convenience or to avoid prejudice, orwhen separate trials will be conducive to expeditionor economy, may order a separate trial of any claim,counterclaim, or third-party claim, or of any sepa-rate issue, or of any number of claims, counter-claims, third-party claims, or Issues. The court mayenter appropriate orders or judgments with respectto any such issues, claims, or counterclaims that aretried separately.

Rule 124 Page 2328


(c) Separate determination o1 liabilty.-(l)Upon stipulation of the parties, subject to approvalby the commissioner, or upon order of the com-missioner, a trial may be limited to the issues of lawand fact relating to the right of a party to recover,reserving the determination of the amount of re-covery, If any, for further proceedings.

12) In any case, whether or not a stipulationor order has been made under subparagraph (1) ofthis paragraph (c), the court, upon entering judg-ment that a party is entitled to recover, may reservedetermination of the amount of the recovery forfurther proceedings. In such event, the judgmenton the question of the right to recover shall be final,subject to proceedings had under Rules 151 and 152.Upon the entry of any such final judgment on theright to recover, the commissioner shall proceed withthe determination of the amount of recovery. Theparties may be allowed a reasonable time withinwhich to stipulate or otherwise agree upon a com-putation. (Cf. Rule 75.) If the parties are unableto agree on the amount of recovery, this issue shallbe disposed of in accordance with the rules cover-ing pretrial procedures, trial, exceptions, briefs, andargument.

Rule 132. Taking of evidence(a) Relation to procedures beore trial.-In con-

formity with Rules 71 and 111, all depositions, dis-covery, and pretrial procedures shall be completedbefore the taking of testimony is begun, but thecommissioner, it, his discretion, may permit, initiate,or require any of the procedures authorized by Rules71-76, 81-92, om 111-14 at any time after the trialhas commenced.

(b) Time; place; notice; exhibits.-(1) The takingof evidence shall be begun as expeditiously as pos-sible. Whenever practicable, evidence shall be takenin one continuous session or in a series of consecu-tive sessions, but the commissioner may, in hisdiscretion, hear portions of the evidence in a case atdifferent times and In different places.

(2) The place of trial shall be fixed by the com-missioner, with due regard to (1) the places of resi-dence of the claimant and the witnesses, and di)the degree of convenience of all concerned to beserved by convening at some central place.

(3) The commissioner shall give to the partiesreasonable notice by mail of the time and place oftrial or of each nonconsecutive session as he shalldesignate, and may direct therein that all or statedparts of Lhe evidence be produced.

(4) The availability at the trial of exhibits whichhave been filed with the clerk and which are desiredfor use at the trial shall be the responsibility ofthe party desiring to use them.

(c) Delay by parties.-Whenever the commis-sioner has reason to believe that the case is being un-necessarily delayed by the failure of either or bothof the parties to produce evidence, he may give noticeto the parties and fix a reasonable time, not less than30 days after the date of the notice, when eitheror both of the parties must close the evidence. Uponfailure of either party to comply, the commissionermay, in his discretion, close the evidence or recom-mend that the court dismiss the petition or counter-claim.

Rule 133. Reception of evidence

(a) Form and admissibility.-In all trials, thetestimony of witnesses shall be taken orally in opencourt, unless otherwise ordered upon good causeshown. All evidence shall be admitted which is ad-missible under the statutes of the United States orunder the rules of evidence applied in the UnitedStates District Court for the District of Columbiain nonJury trials. In any case, the rule which favorsthe reception of the evidence governs, and the evi-dence shall be presented according to the most con-venient method prescribed in any of the statutes orrules to which reference is herein made. The com-

petency of a witness to testify shall be determinedin like manner.

(b) Exclusion of proposed witnesses.-(1) On hisown motion or on the motion of either party, thecommissioner may exclude from the courtroom anyor all persons, other than parties, whom the partiesexpect or intend to call as witnesses in the case. Inconnection with any such exclusion, the commis-sioner may issue to witnesses (actual or potential),attorneys, and parties such instructions as he maydeem necessary for the protection of the integrityof the record.

(2) Unless such motion is made by a party at thebeginning of the first trial session, the commissionermay treat the delay in making such motion as asufficient ground for denying the mtion.

(3) If any witness remains within hearing of theproceedings after such exclusion has been ordered,that fact shall be noted of record in taking his testi-mony, and he may be punished by the court as fora contempt, as provided in Rule 13 (e).

(4) If any person (witness, attorney, or party)willfully violates instructions issued by the commis-sioner pursuant to subparagraph (1) of this para-graph (b), he may be punished by the court as fora contempt, as provided in Rule 13 (e).

(5) This paragraph (b), in the discretion of thecommissioner, may not apply to any person actingin an advisory capacity to counsel for either party.

(c) AfIlrmation.-Whenever under this rules anoath is required to be taken, a solemn affirmationmay be accepted in lieu thereof.

(d) Scope o1 examination and cross-examina-tion.-A party may interrogate any unwilling orhostile witness by leading questions. A party maycall an adverse party (which, in respect to a partyplaintiff, shall include any present or former officeror employee of the United States or of any corpora-tion wholly owned by the United States; and, in re-spect to the defendant, shall include any present orformer officer, director, managing agent, or employeeof a public or private corporation or of a partnershipor association or of an individual that is an adverseparty) and interrogate him by leading questions,and may contradict and impeach him in all respectsas If he had been called by the adverse party. Thewitness thus called may be contradicted and im-peached by or on behalf of the adverse party also.He may be cross-examined by the adverse party onlyupon the subject matter of his examination in chief.

(e) Record of excluded evidence.-(1) If an ob-jection to a question propounded to a witness is sus-tained by the commissioner, the examining attorney

Rule 133Page 2329


may make a specific offer of what he expects to proveby the answer of the witness; or the commissioner,upon request or on his own motion, may permit theevidence to be given and to be reported in full inlieu of a statement by the attorney upon offer ofproof, uless it clearly appears that there is a validclaim of privilege or that the evidence is not admis-sible on any ground.

(2) Where an objection to the introduction ofdocumentary or physical evidence is sustained, thedocument or object, having been marked for identi-fication, shall upon the request of the party who of-fered the same, or by direction of the commissioner,be filed by the reporter with the transcript of theevidence, unless the commissioner rules that itclearly appears such evidence is not admissible onany ground.

(f) Deferred completion of examination; death ofwitness.-(l) When a time has been set for the pro-duction of all or a specified portion of the evidenceand the examination or cross-examination of a wit-ness is postponed at the request of a party, suchparty may be required, in the discretion of the com-missioner, to pay all fees and necessary travel andsubsistence expenses which are incurred by or forwitnesses (present or called) rs a result of suchpostponement. The commissioner's conclusion insuch matter shall be noted in the transcript of theevidence.

(2) Should a witness die or otherwise become in-capacitated before completion of his testimony, thecourt (or the commissioner) will determine the ex-tent to which the testimony so far given by him shallbe used and considered.

Rule 134. Commissioner's report(a) Closing of proof.-After the parties have com-

pleted the presentation of the evidence (whether ata pretrial conference, trial, or by means of a stipu-lation), and after the filing of the transcript (in-cluding exhibits) in cases wherein the proceedingshave been so recorded, or when, in the opinion of thecommissioner, ample opportunity for the presenta-tion of evidence and the filing of the transcript hasbeen afforded, the commissioner shall file with theclerk an order declaring that the proof has beenclosed. Copies of such order shall be served on theparties by the clerk.

(b) Where all facts stipulated.-(1) In a casewhere the parties have stipulated all the pertinentfacts, each party shall be deemed, for the purposesof this rule, to have requested that the stipulatedfacts be found, and the procedures thereafter shallbe as provided in the subsequent portions of this rule.

(2) The parties' stipulation may aver or the par-ties may, by letters attached to the stipulation orseparately addressed to the commissioner, advise (I)that the stipulation is complete in itself without ref-erence to any accompanying exhibits; (i) that theparties do not expect to rely on any such exhibits intheir briefs or arguments; and (iii) that they do notdesire to offer further proof. Upon such a showing,the commissioner shall (subject to Rule 13(b) (6)(1i)) return the case to the court by memorandumreport advising that the case is at issue without find-ings of fact or recommendation for the conclusion

of law by him; and such memorandum report shallconstitute the order closing proof in the case.

(c) Requested findings; briefs; time for filing.-Unless otherwise ordered by the commissioner-

(1) The plaintiff shall have 30 days after the serv-ice of the commissioner's order closing the proofwithin wvhich to file requested findings of fact. Abrief on the law shall also be filed unless otherwisedirected.

(2) The defendant shall have 30 days after serv-ice of the plaintiff's requested findings and briefwithin which to file its requested findings of fact,objections (if any) to the plaintiff's requested find-ings, and, unless otherwise directed, a brief on thelaw. In the event of failure by the plaintiff to filerequested findings and brief within the required timeor any extension thereof, the defendant shall have30 days after the expiration of the time allowed tothe plaintiff witiin which to file its requested find-ings and brief or a motion to dismiss for lack ofprosecution.

(3) The plaintiff shall have 20 days after serviceof defendant's requested findings and brief withinwhich to file objections (if any) to defendant's re-quested findings and, unless otherwise directed, areply brief. In the event of plaintiff's failure to maketimely filing of his requested findings and brief, asprovided in subparagraph (1) of this paragraph (c),the provision of this subparagraph (3) shall notapply.

(4) The commissioner may direct the-parties tofile their requested findings and briefs concurrentlyinstead of consecutively, in which event each partyshall, within 30 days after the service of the orderclosing proof, or such other time as may be fixed bythe commissioner, forward the original and necessarycopies to the commissioner for filing by him, insteadof filing them directly with the clerk's office. After thereceipt of findings and briefs from both parties, orafter the expiration of the prescribed period, thecommissioner will file the requested findings andbriefs in the clerk's office, with copies for service bythe clerk. Within 20 days after the service of re-quested findings filed in conformity with this sub-paragraph (4), either party may (if he has compliedwith the initial requirement to forward his requestedfindings and brief to the commissioner) file with theclerk his objections to the requested findings of theopposing party and a reply brief, copies of which willbe served by the clerk.

(d) Form and content of requested findings andobjections.-(1) Requests for findings shall be inthe form of distinct numbered propositions of thefacts which the party desires to have found; eachproposition shall be so prepared with respect to itslength, subject and phraseology that the commis-sioner ind the court may conveniently pass upon it;each statement of fact shall be supported by cita-tions to the pages or parts of the record (includingtranscript and exhibits) relied upon to establish suchfact; and the several propositions of fact shall be soarranged as to present a concise statement in orderlyand logical (and preferably, chronological) sequenceof the whole case.

(2) Objections to requested findings of fact shallstate specifically and with particularity the reasons

Page 2330Rule 134


for objecting to each proposition of fact to whichobjection Is made.

(e) Content of brief.-Each brief submitted pur-suant to this rule shall comply with the require-raents of Rule 144 as to form and content.

(f) Filing requested findings and briefs.-Ex-(ept as indicated in subparagraph (4) of paragraph(.) of this rule, requested findings, objections there-to, and briefs submitted under this rule shall be filedwith the clerk by the parties. (See Rule 214(f) withrespect to duplication and number of copies.)

(g) Failure to file or object.-(1) If any partyfails to file requested findings or a brief within thetime required by this rule, or as fixed or extendedby the commissioner, a memorandum reciting suchfailure shall be filed with the clerk by the commis-sioner, whereupon the court may refuse to considerany exceptions to the commissioner's report by theparty so in default.

(2) Unless a party has requested a particularfinding of fact, the court may refuse to consider hisexception to the commissioner's report for failureof the commissioner to make such finding.

(3) Unless a party has objected to a particularrequested finding of an adverse party, the courtmay refuse to consider an exception of the formerparty to the inclusion of such finding in the com-missioner's report.

(h) Content of commissioner's report; findings offact; conclusion of law.-In every case tried on themerits (i.e., wherein there is a closing of proof withinthe context of this rule, other than the provisionsof paragraph (b) (2)), the commissioner shall as-certain the facts from the evidence and file with theclerk a report of his findings of fact and, unlessotherwise directed by the court, his opinion and rec-ommendation for the conclusion of law, which re-port shall constitute a part of the record. The clerkshall serve 5 copies of the report on each party, asprovided by Rule 23.

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

Rule 141. Notice of intention to except(a) When required.-When the commissioner's

report tLi a case tried on the merits (as defined inRule 134(h) ) includes his opinion and recommenda-tion for the conclusion of law, any party dissatisfiedwith the commissioner's findings of fact, opinion,or recommendation for the conclusion of law shall,within 30 days after the service of the report, file anotice of intention to except, specifying his inten-tion to except to the findings, opinion, or recom-mendation, or to any or all of the components of thereport. (See Rule 214(1) regarding duplication ofnotice of intention to except and number of copiesto be filed.) Further proceedings shall be in ac-cordance with Rule 143.

(b) Motion for judgment.-When no notice ofintention to except is filed within the time allowed,or in the event of the withdrawal of a notice timelyfiled, the court will entertain a motion by eitherparty, or a joint motion by the parties, requestingthat the court adopt the commissioner's findings offact, opinion, and recommendation for the conclu-sion of law as the basis for its judgment in the case.

(See Rule 214(c) as to duplication and number ofcopies.)

(c) When notice not required.-(1) When thecommissioner's report in a case tried on the meritscontains findings of fact only (without an opinionor recommendation for the conclusion of law), noticeof intention to except is not required. Further pro-ceedings shad be in accordance with Rule 143 unlessan election Is made pursuant to Rule 142.

(2) When the commissioner has filed a memoran-dum report stating that all the facts have beenstipulated (Rule 134(b) (2)), notice of intention toexcept is not required, and the parties rhall have thesame periods of time for filing their briefs as areprescribed in Rule 143. Unless otherwise ordered bythe court, such a stipulation shall be duplicated bythe plaintiff in conformity with Rules 211-14. At theplaintiff's option, the stipulation may be includedin his brief or may be duplicated as a separate docu-ment and filed with his brief.

Rule 142. Submissions in certain cases without excep-tions and brief

(a) Application.-The provisions in this rule forelections to submit a case without exceptions andbriefs apply only to cases reported on the facts, asdefined in Rule 141(c).

(b) Submission by plaintif.f-In lieu of filing ex-ceptions and brief, a plaintiff may, within 30 daysafter the service of the commissioner's report, filewith the clerk a statement that the plaintiff electsto submit the case on the commissioner's report.

(c) Submission by defendant.-Within 30 daysafter the service of plaintiff's exceptions and brief,or a brief without exceptions, or a statement asauthorized in paragraph (b) of this rule, the defend-ant may file a statement that it elects to submit thecase on the commissioner's report. When the plain-tiff has filed a statement as authorized in paragraph(b) of this rule, defendant shall, if it elects to submitthe case on the commissioner's report, file a state-ment to that effect within the time its exceptions orbrief would otherwise be due.

(d) Reply brief.-When a plaintiff elects to sub-mit the case without exceptions and brief, and thedefendant thereafter files exceptions and a brief, ora brief without exceptions, a reply brief on behalfof the plaintiff may be filed within 20 days afterservice of defendant's exceptions or brief.

Rule 143. Exceptions and briefs after commissioner'sreport

(a) Who may file.-Subject to the provisions ofRule 134(g), Rule 141(a) and Rule 142, any party

may except to the commissioner's findings of fact,opinion, or recommendation for the conclusion of

law and file his brief on the facts and the law, or hemay file a brief on the law without exceptions to thefindings of fact.

(b) Time for filing.-(1) The plaintiff shall have45 days from the date of the service of the com-missioner's report within which to file his excep-

tions thereto and his brief on the facts and the lawof the case, or a brief without such exceptions.

(2) The defendant shall have 30 days from the

date of the service of the plaintiff's exceptions and

Rule 143Page 2331


brief, or brief without exceptions, within which tofile defendant's exceptions to the commissioner's re-port and its brief on the facts and the law of thecase, or a brief without such exceptions.

(3) The plaintiff shall have 20 days from the dateof the service of the defendant's brief within whichto file a reply brief.

(4) When the defendant is the only party thatfiles a notice of intention to except, the defendantshall, within 45 days after the service of the com-missioner's report, file its exceptions and brief.Thereafter, all proceedings shall be in accordancewith subparagraphs (1), (2), and (3) of this para-graph (b) in respect to opposition and reply briefs,except that the plaintiff may oppose and the defend-ant may reply.

(c) Duplication of exceptions and briefs.-Theexceptions and brief of a party may be contained ina single document or in separate documents, andshall be duplicated in conformity with Rules 211-14.Briefs shal conform to Rule 144. At the end of eachexception to findings of fact, appropriate referencesshall be made to the parts of the record relied uponin support thereof.

(d) Failure to file.-The failure of a party to file,within the time allowed, the exceptions and briefor brief without exceptions contemplated by para-graph (b) of this rule shall constitute default. In theevent of such a default by either party, the courtmay decline to hear oral argument in behalf of thedefaulting party; and for such a default by theplaintiff, the court may dismiss the petition.

Rule 144. Content of briefs

(a) Initial brief.-Except in briefs of 10 pages orless, the first brief due under Rule 143 (normally theplaintiff's brief) shall contain, under proper head-ings and arranged in the following order-

(1) a table of contents;(2) a table of the constitutional provisions,

treaties, statutes, regulations, and cases cited, giv-ing the volume and page in the official edition wherethey may be found, and arranging the cases in al-phabetical order;

(3) a succinct statement of the questions involved,setting forth each question separately;

(4) a concise statement of the case, containing allthat is material to the consideration of the questionspresented, with appropriate references to the find-ings of fact, the stipulation of facts, or other perti-nent portions of the record, and setting out verbatimin the brief or in an appendix thereto the pertinentportions of constitutional provisions, treaties, stat-utes, and regulations;

(5) the argument, exhibiting clearly the points offact and of law being presented, and citing the au-thorities relied upon; and

(6) a conclusion indicating the relief sought.(b) Opposing brie/.-An opposing or answering

brief (normally the defendant's brief) shall conformto the requirements set out in paragraph (a) of thisrule, except that the Items referred to in subpara-graphs (3) and (4) of that paragraph need not beincluded unless the party is dissatisfied with thepresentation by the other side.

(c) Reply brie.-A reply brief shall conform tothe requirements of paragraph (b) of this rule.

(d) General.-Briefs must be compact, concise,logically arranged, and free from burdensome, ir-relevant, immaterial, and scandalous matter. Briefsnot complying with this rule may be disregarded bythe court.

Rule 145. Brief of anicus curiae

(a) When filed.-A brief of an ainicus curiae maybe filed either (1) by leave of court upon motion or(2) without leave, if accompanied by the consentof all parties to the case.

(b) Content; duplication.-Such a brief shall con-form to Rule 144(a), and shall be duplicated andfiled in accordance with Rule 214(h).

(c) Oral argument.-An arnicus curiae may notparticipate in the oral argument without leave ofthe court upon motion giving extraordinary reasonstherefor.

Rule 1.16. Argument before the court

(a) On the nerits.-When a case is at issue onthe merits and the time has expired for the filing ofbriefs under Rule 143, it may be assigned to thecalendar for argument before the court, but suchassignment shall not be made later than the Thurs-day preceding the opening of the regular monthlysession of the court, except when otherwise orderedby the court. A case shall be deemed to be at issueon the merits (1) where the facts have been stipu-lated and there is no motion for summary judgment,or (2) where a commissioner has filed a report pur-suant to Rule 134(h) and his report has not beenaccepted as the basis of Judgment under Rule 141(b).In assignments under clause (2) of the precedingsentence, or where one party has elected tW submitthe case without exceptions and brief as provided byRule 142, the opening and closing arguments shallbe assigned to the party who filed the first brief.

(b) On motions.-(1) When the time has expiredfor filing objections or responses (and replies there-to) to a motion to dismiss, to a motion for judgmenton the pleadings, or to a motion for summary judg-ment, the case may (subject to the provisions of sub-paragraph (2) of this paragraph (b)) be assigned tothe calendar, but such assignment shall not be madelater than the Thursday preceding the opening ofthe regular monthly session of the court, exceptwhen otherwise ordered by the court.

(2) In the discretion of the court, a motion of thesort referred to in subparagraph (1) of this para-graph (b) may be acted upon without oral argument.

(c) On other matters.-Other matters may becalendared for argument at the discretion of thecourt.

(d) Date o argument.-Parties will be notified bythe clerk of the assignment of cases to the monthlycalendars. Cases on the monthly calendars will becalled on the first Monday in each month or on suchother date as the court may fix. After having beenassigned for argument, the cases to be argued shallbe posted in the clerk's office each day for argumenton the following day; and if not then argued orsubmitted by the parties, or by one party in the ab-sence of the other, they shall be disposed of as thecourt may order.

(e) Tine allowed.-Thirty minutes will be allowedeach side for argument before the court: Provided,

Page 2332Rifle 144


That such time may be rcstricted or enlarged in anycase by order of the court.

(f) Submission without argumcnt.-A case on thecalendar may, with the approval of the court, besubmitted without argument (1) by waiver of argu-ment filed with the clerk or stated orally in opencourt when the case is called, or (2) by failure of theattorneys to appear for argument when the case iscalled.

Rule 147. Findings and judgment by the court

(a) Findings; judgment.-In all actions tried onthe facts, the court will find the facts and stateseparately its conclusion of law, and will enter anappropriate judgment. Except as to a party againstwhom a judgment is entered by default, every finaljudgment may grant the relief to which the partyin whose favor it is rendered is entitled, even if theparty has not demanded such relief in l'is pleadings.

(b) Commissioner's report.-The court may adoptthe commissioner's report, including contlusions offact and law, or may modify it, or reject it in wholeor in part, or direct the commissioner to receive fur-ther evidence, or refer the case back to him with in-structions. Due regard shall be given to the circum-stance that the commissioner had the opportunityto evaluate the credibility of the witnesses; and thefindings of fact made by the commissioner shall bepresumed to be correct.

XIII. REHEARINGS; NEW TRIALS; CERTIORARI

Rule 151. Rehearings; amendment of judgments; newtrials

(a) Grounds.--(1) A rehearing may be granted, ajudgment may be altered or amended, or a new trialmay be granted on any ground established by therules of common law or equity applicable as betweenprivate parties.

(2) The court, at any time while a suit is pendingbefore it, or after proceedings for review have beeninstiuted, or within 2 years after the final dispositionof the suit, may grant the United States a new trialand stay the payment of any judgment upon satis-factory evidence, cumulative or otherwise, that anyfraud, wrong, or injustice has been done the UnitedStates.

(b) Action by court.-On a motion for a rehear-ing to alter or amend a judgment or for a new trial,the court may open the judgment if one has been en-tered, take additional testimony, amend findings offact and conclusions of law or make new findingsand conclusions, and direct the entry of a new judg-ment.

(c) Form and time of motion; response; reply.-A motion for a rehearing to alter or amend a judg-ment or for a new trial shall conform to Rule 51 and,except as provided in paragraph (a) (2) of this rule,shall be filed not later than 30 days a'ter the entryof the judgment. A response may be filed within 15days after service of the mL Ion. A reply may be filedwithin 10 days after the service of the response.(See Rule 214(e) as to duplication and number ofcopies.)

(d) On initiative of court.-Not later than 30days after entry of judgment, the court, on its ownInitiative, may order a rehearing or a new trial or

alter or amend a judgment for any reason thatwould be sufficicnt to justify such action on motionof a party.

Rule 152. Relief from judgment or order(a) Clerical mistakes.-Clerical mistakes in judg.

ments, orders, or other parts of the record, anderrors therein arising from oversight or omission,may be corrected by the court at any time on ltzown initiative or on the motion of any party andafter such notice, if any, as the court orders.

(b) Mistakes; inadvertence; excusable neglect;newly discovered evidence; fraud, etc.; response;reply.-On motion conforming to FCule 51 and uponsuch terms as are just, the court may relieve a partyor his legal representative from a final judgment,order, or proceeding for the following reasons: (1)mistake, inadvertence, surprise, or excusable ne-glect; (2) newly discovered evidence which by duediligence could not have been discovered in timeto move for a new trial under Rule 151(c); (3)fraud (whether heretofore denominated intrinsic orextrinsic), misrepresentation, or other misconductof an alverse party; (4) the judgment is void; (5)the judgment has been satisfied, released, or dis-charged, or a prior judgment upon which it is basedhas been reversed or otherwise vacated, or it is nolonger equitable that the judgment should haveprospective application; or (6) any other reasonjustifying relief from the operation of the Judg-ment. The motion shall be made within a reasonabletime, and for reasons (1), (2), and (3) not morethen 1 year after the judgment, order, or proceedingwas entered or taken. A motion under this para-graph (b) does not affect the finality of a judgmentor suspend its operation. This rule does not limitthe power of the court to entertain an independentaction to relieve a party from a judgment, order,or proceeding, or to set aside a judgment for fraudupon the court. The relief provided by this ruleshall be in addition to the relief available to theUlnited States under Rule 151(a) (2). A response toa motion under this paragraph may be filed within15 days after the motion is served. A reply may befiled within 10 days after the service of the response.(See Rule 2 14 (e as to duplication and number ofcopies.)

Rule 153. Harmless errorNo error In either the admission or the exclusion

of evidence, and no error or defect in any ruling ororder or in anything done or omitted by the courtor by any of the parties, will be a ground for grant-ing a new trial or for vacating, modifying, or other-wise disturbing a judgment or order, unless refusalto take such action appears to the court inconsistentwith substantial justice. At every stage of the pro-ceeding, the court will disregard any error or defectwhich does not affect the substantial rights of theparties.

Rule 154. Writs of certiorari(a) Application.-Upon the rendition of any

judgment in any case in which review by the Su-preme Court by writ of certiorari is desired, the partydesiring such review shall file with the clerk an ap-plication stating that he intends to file a petition

Page 2333 jule 154


for writ of certiorari. The application shall be ac-companied by the fee provided in Rule 223, dupli-cated in conformity with Rule 214 (1), and shall befiled at least 20 days prior to the time the party isrequired to file his petition for writ of certiorari inthe Supreme Court.

(b) Certified transcript o1 the record.-Upon thefiling of the application, as provided in paragraph(a) of this rule, the clerk shall prepare a certifiedtranscript of the record, utilizing original paperswhen necessary. The entire record shall be so certi-fied unless the parties agree that specified parts maybe omitted as unnecessary. For the purpose of thisrule, the entire record shall be deemed to be com-posed, when present, of the petition, answer, dis-positive motions, transcript of testimony, exhibits,administrative record, ccmmlssioner's report, court'sopinion or order, findings of fact and conclusion oflaw, together with papers and orders relating to pro-ceedings under Rule 151 or 152. Should proceduralmatters be at issue, the parties must specificallyrequest the inclusion of papers relating thereto.

(c) Printing.-Determination of the parts of thecertified record which shall be printed by the partiesand the manner of printing shall be as prescribed inthe Rules of the Supreme Court.

XIV. WUNDERLICH ACT REVIEWS

Rule 161. Applicability of chapter

The ensuing rules In this chapter (Rules 161-68)shall apply to cases founded on contracts containingdisputes clauses subject, potentially, to review, inwhole or in part, under the terms of the Wunder-lich Act (68 Stat. 81, 41 U.S.C. § 321-22), and aredesigned to supplement the other rules of the court,particularly Rules 31-57 (Chapters III and IV,Pleadings and Motions) and Rule 101 (SummaryJudgment). To the extent that a party is entitledto relief outside the Wunderlich Act, a trial de novo,if required, on issues of fact shall be held in con-formity with appropriate rules in other chapters.

Rule 162. Pleadings

(a) Petition-Every petition founded on a con-tract containing a disputes clause shall make clearthe relationship, if any, of the Wunderlich Act tothe relief sought. Every such petition shall statespecifically whether relief is sought (1) exclusiveof that Act (e.g., for a trial de novo on all issues) ;(2) only under that Act; or (3) partially under andpartially outside the Act; and (4) as to (2) and (3),(I) whether section 1 (41 U.S.C. § 321) or section 2(41 U.S.C. § 322) of the Act Is applicable, or bothsections are applicable; and (ii) if section 1 of theAct is applicable, why the administrative decisionis or is not entitled to finality. Any such adminis-trative decision shall be reproduced In the petitionas an appendix thereto.

(b) Sufficiency of petition.-(1) A motion to dis-miss a petition for alleged failure to comply withthe provisions of paragraph (a) of this rule shall bepassed upon by the commissioner, who may rec-ommend that the motion be granted, in which eventhis action shall be subject to review under Rule53(b) (3).

(2) A determination by the commissioner in favorof the sufficiency of a petition, or permitting orordering an amendment or more definite statement,shall not be subject to review.

(c) Answer.-The answer to a petition foundedon a contract containing a disputes clause shallmake clear the relationship, if any, of the Wunder-lich Act to the allegations of the petition or to thedefenses pleaded. Within the context of Rules 37,38, and 40, the answer shall assert or deny the final-ity of an administrative decision or assert failure toexhaust administrative remedies. If the defense reliesupon the finality of an administrative decision notmentioned in the petition, such administrativedecision shall be reproduced in the answer as anappendix thereto.

Rule 163. Dispositive motions(a) Assertion of defenses by motion.-In any case

to which this chapter applies, the defenses of ac-cord and satisfaction, release, statute of limitations,res Judicata, lack of Jurisdiction of the subject mat-ter or the person, and failure to exhaust adminis-trative remedies may be asserted in a motion forsummary judgment or, when appropriate, by amotion for judgment on the pleadings or by a motionto dismiss. Any such motion shall state that it isfiled pursuant to this paragraph.

(b) Motion for summary judgment.-(l) In sup-port of an administrative decision: Subject to theprovisions of Rule 101(c), any party may move forsummary judgment in support of an administrativedecision, stating that the motion is filed pursuantto this subparagraph.

(2) In opposition to an administrative decision:Subject to the provisions of Rule 101(c), any partymay by motion or cross-motion for summary judg-ment attack an administrative decision for failureto comply with the standards of the Wunderlich Act.Any such motion or cross-motion shall state thatit is filed pursuant to this subparagraph and shallspecify the basis of the alleged failure, i.e., (1)whether such failure rests upon an error or errors oflaw within the purview of section 2 of the Act (41U.S.C. § 322), (ii) whether such failure rests uponlack of support by substantial evidence, arbitrari-ness, caprice, etc., within the purview of section 1of the Act (41 U.S.C. § 321), or (i) whether suchfailure rests both upon errors of law and upon lackof support of findings of fact by substantial evidence,arbitrariness, caprice, etc.

(3) Specificity required: U) Subject to the divisionrequired by the preceding subparagraph (2) of thisparagraph (b), the memorandum or brief in supportof the attacking motion or cross-motion shall listseparately and in numbered paragraphs (a) theconclusions of law deemed erroneous and (b) thefindings of fact deemed lacking in support by sub-stantial evidence (or deemed arbitrary, capricious,etc.).

(ii) On each error of law cited, the memorandumor brief in support of the motion or cross-motionshall state the reasons for the challenge of the ad-ministrative decision, cite the authorities relied upon,and state the conclusion of law deemed warrantedby the citations.

Rule 161 Page 2334


(iii) On each factual issue challenged, thememorandum or brief in support of the motion orcross-motion shall state why the administrativefinding is not entitled to finality and shall cite theportions of the record deemed to refute the admin-istrative finding. Citations shall be by page numberof the transcript of testimony, and by specific iden-tification of the exhibit, and the page numberthereof.

(iv) If the commissioner determines that amemorandum or brief filed under this subparagraph(3) has insufficient specificity, he may require byorder that such memorandum or brief be supple-mented in such particulars as he may designate, andhis action in this regard shall not be subject toreview.

(c) Organization of rcsponses.-The organizationof a response to a motion or cross-motion attackingan administrative decision shall be governed by theorganization of the memorandum or brief in sup-port of the challenging motion or cross-motion.Thereafter, the content of such a response shall in-clude refutations of each challenge of a conclusionof law or finding of fact, as required by subpara-graphs (2) and (3) of paragraph (b) of this rule.

Rule 161. The administrative record

(a) Filing of record-Within 60 days after thefiling of a petition within the purview of this chap-ter, or upon the filing of an answer asserting thefinality of an administrative decision not mentionedin the petition, the defendant (acting through theDepartment of Justice) shall file with the clerk theentire original administrative record (or such por-tions thereof as may be stipulated by the parties),appropriately certified, upon which the administra-tive decision was based. The clerk shall promptlynotify all other parties of the filing.

(b) Certification of record.-Every administra-tive record presented to the clerk for filing shall becertified as genuine and (in the absence of a stipula-tion under the preceding paragraph) complete by anappropriate official on behalf of the department,agency, or board concerned.

Rule 165. Time for filing motions, responses, and re-plies; duplication; copies

(a) Time for filing motions.-A dispositive motionunder Rule 163 may be filed at any time, except thatthe filing of a motion for summary judgment shall besubject to the provisions of Rule 101(a), (b), and(c).

(b) Direction to file.-() Order by commissioner:When 30 days have elapsed after the filing of defend-ant's answer and no dispositive motion has beenfiled, the commissioner may, in his discretion, byorder direct one party or the other to proceed bydispositive motion within such time as he mayspecify, and his order shall not be subject to review.If the commissioner decides not to direct either partyto proceed by dispositive motion, the commissionershall take such other action as he deems appropriate.

(2) Failure to comply; consequei.ces: Failure of aparty to comply with an order issued pursuant tosubparagraph (1) of this paragraph (b), within thetime specified in such order or any extension there-

of, may be deemed a refusal to comply, with con-sequences as provided in Rule 76(b) (2) and (3).

(c) Time for filing objections, responses, and replybriefs.-Unless otherwise ordered by the court (orthe commissioner), the time for filing objections andresponses (including cross motions for summaryjudgment) shall be governed by Rule 52(b) (1), andthe time for filing reply briefs shall be governed byRule 52(b) (2).

(d) Duplication; copies.-The duplication andnumber of copies of dispositive motions, responses.and replies shall be governed by the terms of Rule214(d).

Rule 166. References to and opinions by conunis-sioners; review by the court

(a) As to motions under rule 163(a).-Referencesto commissioners of cases within the purview of thischapter will be suspended, as provided in Rule 14(b) (2), by the filing of a dispositive motion underRule 163(a).

(b) As to motions under rule 163(b).-Referencesto commissioners of cases within lie purview of thischapter will not be suspended by the filing of a mo-tion or cross-motion for summary judgment underRule 163(b): Provided, That upon the completionof filing of the motion or cross-motion for summaryjudgment, the response thereto, and the reply to theresponse, the commissioner shall review the motionpapers and if he deems the issues to be limited toissues of law within the purview of section 2 of theWunderlich Act (41 U.S.C. § 322), he shall by orderso inform the court, and the reference to him shallthereupon be suspended as provided in Rule 14(b)(2), and his order shall not be subject to review.

(c) Opinion by commissioncr.-In each case with-in the purview of this chapter, the commissioner towhom the case is referred shall, unless the referenceto him is suspended under the provisions of para-graph (a) or paragraph (b) of this rule or by orderof the court, prepare and file with the clerk hisopinion on the issues.

(d) Notice of commissioner's opinion.-Upon thefiling of the commissioner's opinion, the clerk shallserve 5 copies thereof on each party, as provided byRule 23.

(e) Review by the court.-Review by the courtof the opinion of the commissioner may be had inconformity with Rule 54(b) (3). The court maydecline to consider any citations to the administra-tive record which were not cited for the considera-tion of the commissioner.

Rule 167. Stay of proceedings

(a) Content of order.-Every order by the court(or the commissioner) for a stay of proceedings toafford a party an opportunity to obtain further con-sideration by the administrative board (or the headof the department or agency if no administrativeboard Is Involved) shall (1) delineate the area ofsuch further consideration or action deemed war-ranted and (2) fix the duration (not to exceed 6months) of the stay of proceedings.

(b) Eflect of order by the court.-The issuance ofsuch an order by the court (as distinguished from thecommissioner) shall terminate the suspension (ifany) of the reference to the commissioner.

Rule 167Page 2335


(C) Service of order.-Copies of the order shallbe served on the parties in conformity with Rule 23,and a copy of the order shall be forwarded by theclerk to the administrative board (or the head ofthe department or agency if no administrative boardis involved).

(d) Transmittal of administrative record.-Fol-lowing the service of the order upon the defendant,the clerk shall transmit the administrative recordto the Department of Justice for return by it to theadministrative board (or the head of the departmentor agency if no administrative board is involved).

(e) Advice of administrative action required.-Inevery case wherein an order has been entered pur-suant to paragraph (a) of this rule, the party towhom opportunity was afforded by the order to ob-tain further administrative consideration shalladvise the commissioner of the status of the casebefore the board or agency. The advice shall be givenat intervals of not less than 60 days, beginning withthe date of the order.

(f) Nature of advice.-The advice required byparagraph (e) of this rule shall Include (withoutbeing limited to) the following:

(1) the steps taken by the party (as defined inparagraph (e) of this rule) to implement the order,including the dates of such action or actions;

(2) whether the board has declined or acceptedjurisdiction;

(3) extensions of time granted to either party;(4) dates of hearings scheduled or held;(5) whether the board has referred the case back

to the contracting officer; and(6) whether disposition of the claim has been

made at the administrative level (through settle-ment or payment).

(g) Effective Date of Commissioner's Order.-Inany case within the purview of this rule whereinreview is sought of a commissioner's order suspend-ing proceedings, his order, for the purposes of para-graphs (e) and (f) of this rule, may be deemed notto have been entered unless and until it has becomefinal.

Rule 168. Extension or termination of stay; disposi-tion of case

(a) Action by party.-(1) Upon the rendition bythe administrative board (or the head of the depart-ment or agency if no administrative board is in-volved) of a decision following a stay of proceedingsin this court pursuant to paragraph (a) of Rule 167,the party to whom opportunity was afforded by thestay of proceedings to obtain further administrativeconsideration shall, within 30 days after service ofthe decision on him, file with the clerk a notice ofthe rendition of the decision (attaching to such no-tice a copy of the decision, if available). He shall, insuch notice, advise of his intention (i) to acceptthe decision as (a) dispositive of his claim (albeitthe decision may have been adverse to him), or (b)as a satisfactory basis for disposition of the claimat the administrative level (through settlement orpayment) ; or (i) to challenge the decision.

(2) If the party accepts the administrative deci-sion as dispositive of his claim, he shall, in additionto his notice, file a motion to dismiss the action in

this court, with prejudice. Upon his failure so tomove, an opposing party may move for dismissal forlack of prosecution, or the court may so dismiss onits own motion.

(3) (i) If the party deems the administrative deci-sion to afford a satisfactory basis for dispositionof his claim at the administrative level (throughsettlement or payment), he shall, in addition to hisnotice, file a motion for extension of the stay of pro-ceedings, in this court for such time as he may con-sider repsonably adequate for the completion ofadministrative proceedings. Upon the allowance ofsuch a motion, the provisions of paragraphs (e) and(f) of Rule 167 shall again be applicable,

(i) The acceptance by the party of the adminis-trative decision for the purposes of this subpara-graph (3) shall not prejudice his right to seek furtherrelief through the action pending in this court ifsatisfactory disposition at the administrative levelis not obtained.

(iII) When satisfaction is obtained at the adminis-trative level, the party shall promptly file a motionto dismiss, with prejudice, the action in this court,failing which an opposing party may move to dismissthe action for lack of prosecution, or the court mayon its own motion so dismiss the action.

(4) If the party elects to challenge the adminis-trative decision, he shall, in addition to his notice,file a motion for an order terminating the stay ofproceedings in this court.

(b) Filing of record-Within 30 days after serviceof an order terminating a stay of proceedings, thedefendant (acting through tie Department of Jus-tice) shall file with the clerk (1) the original admin-istrative record as provided in paragraph (a) of Rule164, and (2) the entire administrative record (orsuch portions thereof as may be stipulated by theparties) of the proceedings had during the stay (ap-propriately certified as provided in paragraph (b)of Rule 164) upon which the administrative decisionwas based. The clerk shall promptly notify all otherparties of the filing.

(c) Summary judgment; motion; response; cross-motion.-(1) Within 30 days after the filing of therecord as provided in paragraph (b) of this rule, thechallenging party (as defined in subparagraph (1)of paragraph (a) of this rule) shall amend or sup-plement his pending motion (or cross-motion) forsummary judgment (or, if he has no motion or cross-motion pending, file a motion for summary judg-ment) in such form as to attack the challengedadministrative decision in conformity with subpara-graphs (2) and (3) of paragraph (b) of Rule 163.

(2) Opposing parties may respond or cross-movein conformity with paragraph (c) of Rule 163, andthe challenging party may reply.

(3) The time for filing responses and replies, andtheir duplication and number of copies, shall be asrequired by paragraphs (c) and (d) of Rule 165.

(d) Further proceedings.-Further proceedingsshall be as provided in Rule 166, except that para-graph (a) of that rule has no application.

(c Delay by board or agcncy.-At the end of theperiod fixed by an order staying proceedings, if theboard or agency has not rendered a decision on thematter referred to it by the order, the court (or the

Rule 168 Page 2336


commissioner), upon motion of the party to whomopportunity was afforded by the order to obtain fur-ther administrative consideration, may initiate pro-ceedings essential to the entry of a proper judgment.

XV. APPEALS; TRANSFERS; AND REFERENCES

Rule 171. Appeals from the Indian Claims Commission

(a) Time for appeal.-(1) When an appeal is per-mitted by law from the Indian Claims Commissionto the Court of Claims, the time within which an ap-peal may be taken shall be 3 months from the dateof the filing of the final or interlocutory determina-tion of the Commission with the clerk of the Com-mission, except that upon a showing of excusableneglect based upon the failure of a party to learnof the filing of the determination, the Commissionmay extend the time for appeal not to exceed 30days from the expiration of the original time hereinprescribed.

(2) The running of the time for appeal is ter-minated by the filing of a timely motion with theCommission for rehearing or amendment of find-ings; and the full time for appeal fixed in paragraph(a) (1) of this rule commences to run and is to becomputed from the entry of an order by the Com-mission finally disposing of such motion.

(b) How taken.-A party may appeal from a finalor interlocutory determination of the Commissionby filing with the Commission a notice of appeal, plus1 additional copy for each other party to the pro-ceeding. The notice of appeal shall specify the partyor parties taking the appeal, shall designate the de-termination, or part thereof, appealed from, andshall set forth a concise statement of the points reliedon.

(c) Notification to other parties.-Notificationof the filing of the notice of appeal shall be given bythe clerk of the Commission to each party to theproceeding (other than the party or parties takingthe appeal) by mailing a copy of the notice of appealto his attorney of record or, if the party is not rep-resented by an attorney, then to the party at his last-known address. Such notification is sufficient not-withstanding the death of the party or of hisattorney prior to the giving of the notification. Theclerk of the Commission shall note on the Commis-sion's docket the names of the persons to whom hemails the copies, with date of mailing. The failureof the clerk of the Commission to give the notifica-tion called for by this paragraph (c) will not affectthe validity of an appeal.

(d) Failure to perfect appeal.-(1)Failure of theappellant, after filing a notice of appeal in ac-cordance with paragraph (b) of this rule, to takeany of the further steps to secure review of the finalor interlocutory determination appealed from willbe a ground for such action as the court deems ap-propriate, which may include dismissal of theappeal.

(2) Failure to perfect an appeal from an inter-locutory determination shall not constitute a waiverof the party's right to challenge sich interlocutorydetermination in any appeal from any final deter-mination subsequently made in the case.

(c) Dismissal by parties or commlssion.-If anappeal has not been docketed by the court, the

parties, with the approval of the Commission, maydismiss the appeal by stipulation filed with theCommission, or the Commission may dismiss the ap-peal upon motion by the appellant and notice to theother party or parties.

Rule 172. Record on appeal

(a) Content.-(l)Subject to the provisions of theother subparagraphs of this paragraph (a), therecord on appeal shall consist of all the pleadings,the transcript of the testimony, all the documentaryevidence and other exhibits, the final or interlocutorydetermination of the Commission (including its find-ings of fact, conclusions of law, and opinion), andthe notice of appeal.

(2) Any party may, at any time before the recordon appeal is filed with the court, file with the clerkof the Commission a written designation of such mo-tions, objections, orders, or other papers of recordin the cause as he may deem necessary for a fulldetermination of the cause on appeal, and suchpapers shall be included in the record on appeal alongwith the papers referred to in subparagraph (1) ofthis paragraph (a).

(3) By written stipulation of the parties filed withthe clerk of the Commission at any time before therecord on appf:al is filed with the court, there maybe omitted from the record on appeal any of thedocuments mentioned in subparagraph (1) of thisparagraph (a).

(4) If the parties believe that the questions pre-sented by an appeal can be determined without anexamination of the record made up in accordancewith subparagraphs (1) and (2) of this paragraph(a), the parties may prepare, sign, and file with theclerk of the Commission, at any time before therecord on appeal is filed with the court, an agreedstatement of the case, showing how the questions atissue arose and how they were decided by the Com-mission, and setting forth only so many of the factsaverred and proved, or sought to be proved, as are es-sential to a decision of the questions by the court.The agreed statement shall include a copy of thefinal or interlocutory determination appealed from,a copy of the notice of appeal with its filing date, anda concise statement of the points to be relied on bythe appellant. The Commission, if it approves theagreed statement, may add to it such further docu-ments of record in the cause as the Commission mayconsider necessary to present fully the questionsraised by the appeal. The agreed statement as ap-proved by the Commission, plus any documentsadded by the Commission, shall constitute the recordon appeal.

(b) Certification.-The clerk of the Commissionshall append to the record on appeal a certificateidentifying the contents thereof with reasonabledefiniteness.

(c) Filing with the court.-(1) Subject to theprovisions of the other subparagraphs of this para-graph (c), the record on appeal shall be filed withthe clerk of this court bv the clerk of the Commissionwithin 30 days from the date of the filing of thenotice of appeal with the Conimission.

(2) When more than one appeal is taken from thesame final or interlocutory determination of the

Page 2337 Rule 172


Commission, the Commission may prescribe a periodlonger than 30 days for the filing of the record onappeal with the court. A copy of any such order shallbe filed with the clerk of the court.

(3) The time for the filing of the record on ap-peal with the court in any proceeding may be en-larged by the Commission for a period not to exceed60 days beyond the final date fixed by or under theauthority of this paragraph (c), if an application forenlargement, showing good cause therefor, is filedwith the Commission prior to the expiration of theprescribed period. Copies of all orders of enlargementshall be filed wtih the clerk of the court.

(d) Docketing of appeals.-The clerk of the courtshall enter upon a separate docket all appealsbrought to and pending in the court from the IndianClaims Commission.

(e) Cross-appeals.-When cross-appeals aretaken, the first party to file his notice of appeal shallbe regarded as the appellant for the purposes ofthese rules.

(f) Correction or modiflcation.-If anything mate.rial to a question raised by either party is omittedfrom the record on appeal by error or accident, or ismisstated therein, the parties by stipulation or theCommission, either before or after the record is filedwith the court, or the court on a proper suggestionor on its own initiative, may direct that the omissionor misstatement shall be corrected and, if necessary,that a supplemental record shall be certified andfiled with the court by the clerk of the Commission.All other questions as to the content or form of therecord on appeal shall be presented to the courtby proper motion.

(g) Printing.-Unless otherwise ordered by thecourt, it will not be necessary to print the record onappeal. (In this connection, however, see the lastsentences of paragraphs (a) and (b) of Rule 173.)

(h) Return to the Commission.-After the appealhas been disposed of by the court, the record onappeal shall be returned to the Commission by theclerk of the court.

Rule 173. Briefs on appeals

(a) Appellant's brief.-The appellant shall, with-in 60 days from the docketing of an appeal in thecourt, file with the clerk of the court a brief whichcomplies with Rule 144 (a) and (d) as to content andwith Rule 214(h) as to duplication and number ofcopies. There shall be added to the brief, in theform of an appendix or supplement, a copy of thefinal or interlocutory determination appealed from,together with a copy of any opinion of the Commis-sion; and the appellant may also include in the ap-pendix or supplement any other parts of the recordthat he desires to have specially considered by thecourt.

(b) Appellee's brief.-Within 60 days from the fil-ing of the appellant's brief, the appellee shall filewith the clerk of the court a brief which complieswith Rule 144 (b) and (d) as to content and withRule 214(h) as to duplication and number of copies.There may be added to the appellee's brief, in theform of an appendix or supplement, any parts ofthe record which the appellee desires to have speciallyconsidered by the court and which have not been

set out in the appendix or supplement to the ap-pellants' brief.

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

(d) References and citations.-(1) The partiesshall include in the table of contents or index totheir initial briefs, or as a separate page (or pages)of the initial brief, a reference to each interlocutoryor final order, determination, or decision appealedfrom, in chronological order or listing, setting forththe date, nature, Indian Claims Commission docketnumber, and, if available, the citation thereof in thevolume of the Indian Claims Commission, by volumeand page number (e.g., 12 Ind. Cl. Comm. 301(1963)).

(2) In the event that any citation referred to insubparagraph (1) of this paragraph (d) is notavailable at the time the briefs are filed, such cita-tion or a list of citations shall be filed by each partywhen available at or prior to oral argument of theappeal.

Rule 174. Arginient on appeals

(a) Placing on calendar.-(1) Except as indicatedin the other subparagraphs of this paragraph (a),only appeals in which the oriefs required by Rule173 (a) and (b) have been filed, and in which replybriefs have been filed or the time for the filing ofreply briefs shall have expired, on or before theThursday immediately preceding the opening of amonthly series of arguments before the court, shallbe placed on the calendar for such series.

(2) By leave of the court, appeals may be placedon a monthly calendar of cases for argument with-out regard to the requiremcnts of subparagraph (1)of this paragraph (a).

(3) (1) If the appellant in a proceeding fails tofile a brief within the time prescribed by Rule 173(a), or if the appellee fails to file a brief within thetime prescribed by Rule 173(b), the court may atany time, on motion of the opposing party or on itsown initiative, place the appeal on a monthly cal-endar of cases for argument.

(ii) In the case of a default by the appellant, theappeal may be dismissed for nonprosecution if, whenthe appeal is called, the appellant does not showgood cause against such dismissal. In the case of anappeal from an interlocutory determination of theCommission, the dismissal shall always be withoutprejudice.

(b) Calling of calendar.-Appeals on a monthlycalendar of cases for argument will be called on thefirst Monday in the month, or on such other dateas the court may fix.

(c) Argument.-After the appeals on a monthlycalendar have been assigned for argument, a list ofthe appeals to be heard shall be posted in the clerk'soffice each day for argument on the following day.If an appeal is not then argued or submitted by theparties, or by one party in the absence of the other,it shall be disposed of as the court may order.

Rule 175. Certified questions

(a) Certification.-When the Commission certi-fies to this court a question of law concerning which

Rule 173 Page 2338


instructions are desired for the proper dispositionof a claim, the certificate shall contain a statementof the claim and of the facts on which such questionarises. Questions of fact cannot be certified. The cer-tification must be confined to definite and distinctquestions of law.

(b) Docketing.-The filing of the certification ofthe question with the clerk of the court shall con-stitute the docketing of the cause. The procedurethereafter shall be as in cases on appeal.

(c) Appellant.-The claimant before the Commis-sion shall, for the purposes of the presentation of thequestion, be considered the appellant in this court.

Rule 179. Appeals from district courts(a) When and how taken.-When an appeal to

this court is permitted by law from a final judgmentin a district court in a civil action based on theFederal Tort Claims Act, the procedure for takingsuch appeal shall be in all respects the same as pro-vided in Rules 73-76, inclusive, of the Federal Rulesof Civil Procedure, except that subdivisions (c), (d),(e), and (f) of Rule 73 of those rules shall not ap-ply nor shall any bond be required in such appeal.

(b) Proceedings alter appeal docketed.-Afterthe appeal has been docketed in this court, all pro-ceedings thereafter in the case shall be as providedby Rules 173 and 174, relating to cases appealedfrom the Indian Claims Commission to the UnitedStates Court of Claims.

Rule 181. Transfers from district courts(a) Filing and fee.-When the transfer of a case

from a district court to this court is permitted bylaw, the case shall be filed in this court upon thereceipt by the clerk of a certified copy of the recordmade in the district court, including the order ofthat court granting the transfer. The clerk shallserve a notice of this filing on the parties as pro-vided in Rule 23. Where all required fees in the dis-trict court are shown to have been paid, no filingfee will be required.

(b) Petition; copies.-Thirty copies of the com-plaint filed in the distirct court shall be filed withthe clerk of this court within 20 days after the filingrequired in paragraph (a) of this rule. These copies,containing the necessary changes In the caption,shall be duplicated in conformity with Rule 214(a),and service will be made on the United States asprovided in Rule 22(a).

(c) Procedure.-After the filing and service asprovided for In paragraph (b) of this rule, all furtherproceedings shall be in accordance with the rulesprescribed for cases filed In this court in the firstinstance.

Rule 183, Referral of cases by the Comptroller General(a) Service of notice; time for response.-Upon

the filing of a case referred to the court by theComptroller General, the clerk shall serve a notice,as provided in Rule 23, on each person whose nameand address are shown by the papers transmittedand who appears to be interested in the subject mat-ter of the reference, which notice shall set forth thefiling of the reference and state that the person noti-fied appears to have an interest therein and that

such person shall have 90 days after such servicewithin which to appear and assert his claim by filinga petition in accordance with Rule 21. At the sametime, the clerk shall forward a copy of each suchnotice to the Attorney General.

(b) Procedure alter notice.-After the service ofnotice upon the interested person or persons, allfurther proceedings for the disposition of the caseshall be in accordance with the rules prescribedherein for other cases.

(c) Failure o1 party to appear.-If no interestedplaintiff appears and files his petition within thetime specified in the notice served by the clerk, thecase shall be submitted to the court upon the papersfiled and upon such evidence, if any, as may beproduced by the Attorney General.

XVI. THE CLERK'S OFFICE

Rule 191. Judgments and orders

(a) Entry of judgment.-When the court entersa judgment, the clerk shall forthwith make a nota-tion thereof on the docket.

(b) Notice.-Immediately upon the entry of anorder or judgment, the clerk shall serve a notice ofthe entry by mail in the manner provided for in Rule23 upon every party affected thereby, and shall makea note on the docket of the mailing. Such mailingis sufficient notice for all purposes for which noticeof the entry of an order is required by these rules.Lack of notice of the entry by the clerk does notaffect the time allowed for filing motions underRule 151.

(c) Record.-The clerk shall keep, in such formand manner as the court may prescribe, a correctcopy of every judgment or order subject to reviewby certiorari, and any other order which the courtmay direct to be kept.

Rule 192. Docket and calendars

(a) Docket.-It shall be the duty of the clerk tokeep a general docket on which shall be enteredthe title and nature of all suits brought in the court,the names of the attorneys filing such suits, thedesignated attorneys of record, and all other pro-ceedings had during the progress of the case.

(b) Calendars.-The clerk, under the direction ofthe court, shall prepare a calendar for each sessionof the court.

Rule 193. Withdrawal of papers and exhibits

(a) Temporary withdrawal.-The attorney ofrecord for either party, or a party not representedby an attorney, may, except where the court other-wise directs, temporarily withdraw papers and ex-hibits on file in the clerk's office for a period not toexceed 30 days: Provided, That upon notice fromthe clerk, the attorney or party may be required toreturn such papers and exhibits before the expira-tion of the 30-day period. The attorney or partywithdrawing such papers and exhibits shall be re-quired to sign and leave with the clerk a proper re-ceipt describing the papers and exhibits so with-drawn.

(b) Withdrawal for trial.-The reporter engagedto transcribe the evidence may temporarily with-draw all papers and exhibits for use during any trial

Rule 193Page 2330


session. Upon the withdrawal of papers and exhibitsfor trial, the reporter shall sign a blanket receipt forsuch papers and exhibits, and they shall remain inhis custody until returned to the clerk's office.

(c) Permanent withdrawal.-No papers or ex-hibits shall be permanently withdrawn from theclerk's office except on motion for good cause shownand upon such terms as the court may order.

(d) Physical exhibits.-All physical exhibits willbe disposed of by the court on its own motion unlesswithdrawn by a party within 90 days after the finaldisposition of the case.

XVI1. ATTORNEYS

Rule 201. Admission to practice(a) Qualifications; oath.-Any person of good

moral character who is a citizen of the United Statesor of any territory or possession thereof and who hasbeen admitted to practice in the Supreme Court ofthe United States or the highest court of any state,territory, possession, or the District of Columbia, orthe United States Court of Customs and Patent Ap-peals, and is in good standing therein, may be ad-mitted to practice as an attorney in this court (1)upon oral motion or (2) by verified application, asprovided in this rule, and upon taking or subscrib-ing to the following oath:

I ,-------------------- do solemnly swear (or affirmthat I will support the Constitution of the United Statesand that I will demean myself in an upright manner as anattorney of this court, so help me God.

(b) Upon oral notion.-(l) Before the court: Theoral motion for admission may be made in opencourt by a member of the bar of this court or, if thecourt is not in session, before the chief judge or thesenior judge present.

(2) Before a commsstoner.-M() Upon oral mo-tion: The oral motion for admission may be made bya member of the bar of this court before a commis-sioner sitting outside Washington, District of Co-lumbia, in the conduct of a trial, pretrial conference,hearing, or interlocutory proceeding in which the ap-plicant is to participate. As a preliminary to themotion, the attorney who moves the admission shallrequest the applicant to complete the appropriateform obtained from the commissioner, which formshall thereafter be submitted to the commissionerfor transmission to the clerk.

(ii) Without oral mutton.-In the absence of amotion for admission in conformity with subdivision(i) of this subparagraph (2), the applicant may ad-vise the commissioner of his qualifications as setforth in paragraph (a) of this rule. Upon considera-tion thereof, and upon representation by the attor-ney that he will promptly apply to the clerk foradmission by verified application as provided inparagraph (c) of this rule, the commissioner mayadmit the applicant for the particular proceed-ing before the commissioner in which he is toparticipate.

(c) By verified applicatfon.-Admission may bemade upon presentation to the clerk of a verifiedapplication (forms for which may be obtained fromthe clerk) showing that the applicant is possessed ofthe qualifications described in paragraph (a) of thisrule. The application shall be accompanied by (1)

a certificate of a Judge or of the clerk of any of thecourts specified in paragraph (a) of this rule thatthe applicant is a member of the bar of such courtand is In good standing therein; (2) two letters orsigned statements of members of the bar of this courtor of the Supreme Court of the United States, notrelated to the applicant, stating that the applicantis personally known to them, that he possesses allthe qualifications required for admission to the barof this court, that they have examined his applica-tion, and that they affirm that his personal and pro-fessional character and standing are good; and (3)an oath in the form prescribed in paragraph (a)of this rule, signed by the applicant and adminis-tered by an officer authorized to administer oaths inthe state, territory, possession, or the District ofColumbia, where the oath is administered.

(d) Fee for admission.-(1) Assessment: Unlessthe applicant is an attorney representing the UnitedStates before this court, nn admission fee of $10shall be paid in cash or by check payable to the clerkof the United States Court of Claims.

(2) Payment: (i) To the clerk: The admissionfee shall be paid to the clerk (a) prior to the makingof a motion as prescribed in subparagraph (1) ofparagraph (b) of this rule or (b) upon presentationto the clerk of the verified application prescribedby paragraph (c) of this rule.

(ii) To the commissioner (upon oral notion)The admission fee shall be paid to the commissionerby check payable to the clerk of the United StatesCourt of Claims prior to the making of a motion asprescribed in subdivision (i) of subparagraph (2) ofparagraph (b) of this rule, for transmission by himto the clerk, together with the form required by thesame subdivision.

(c) Admissi,^.n of Ioreign attorneys.-An attorneybarrister, or advocate who is qualified to practicein the highe3t court of any foreign state which ex-tends a like privilege to members of the bar of thiscourt may be specially admitted for purposes limitedto a particular case. He shall not, however, be au-thorized to act as attorney of record. In the case ofsuch applicants, the oath shall not be required andthere shall be no fee. Such admission shall be onlyon written motion of a member of the bar of thiscourt, filed with the clerk at least 3 days prior to theconsideration of the motion by the court.

Rule 202. DisbarmentWhere it is shown to the court that any member

of its bar has been disbarred from practice in theSupreme Court of the United States or in any otherFederal court, or in any court of record of any state,territory, or possession, or has been guilty of conductunbecoming a member of the bar of this court, heshall be forthwith suspended from practice beforethis court; and he shall be disbarred unless lie showsgood cause to the contrary within 30 days afternotice is mailed to him at the address shown in theclerk's records.

Rule 203. Attorneys of record(a) One for each party.-There shall be but one

attorney of record for a party in any case at anyone time, and such attorney of record shall be an

Page 2340Rule 201


individual (and not a firm) who has been admittedto practice before this court pursuant to Rule 201.Any other attorneys assisting the attorney of recordshall be designated as of counsel.

(b) Registration of address.-On appearing in asuit, the attorney of record shall register with theclerk of the court a post office address to which allnotices required by these rules or ordered by thecourt may be sent. If he changes his address duringthe pendency of such suit, the attorney of recordshall notify the clerk.

(c) Change by plaintifl.-A plaintiff may by leaveaf court on motion change his attorney at any time.The motion may be signed by the plaintiff in per-son, or by the newly designated attorney accom-panied by an affidavit of appointment executed bysuch attorney. If the consent of the previous at-.orney of record is annexed to or endorsed on themotion, substitution shall be accomplished by anappropriate entry on the docket by the clerk. Whenthe motion is not thus shown to have the consentof the previous attorney, he shall be notified of thefiling of the motion, and shall have 10 days to showcause why the motion should not be allowed.

(d) Withdrawal of attorney.-No attorney ofrecord for a plaintiff or a third party may withdrawhis appearance except by leave of the court onmotion and after notice is served on his client.

(e) Death of attorney.-If the attorney of recorddies, a suggestion of his death shall be made, and amotion to substitute another attorney admitted topractice before this court may be made by theplaintiff.

Rule 204. Officers and employees of tlhe court asattorneys

(a) Judges, commissioners, clerk, secretary tocourt.-No one serving as a judge, or as a commis-sioner, or as the clerk, or as the secretary to thiscourt shall practice as an attorney or counselor inany court or before any agency of the United Stateswhile continuing in that position, except when herepresents himself or some member of his immediatefamily; nor shall he, after separating from thatposition, practice as an attorney or counselor In thiscourt until 2 years shall have elapsed after suchseparation; nor shall he ever participate, by way ofany form of professional consultation and assist-ance, in any case that was pending in this courtduring the period while he held such position.

(b) Other personnel-No person who occupies orhas occupied a position as law clerk or secretary toa Judge or a commissioner of this court, or any otherposition with the court, shall ever thereafter partic-ipate, by way of any form of professional consulta-tion and assistance, in any case in which he hasparticipated in any way while employed by thecourt.

XVIII. DUPLICATION; COPIES

Rule 211. General(a) Conformity required.-All papers to be filed

with the clerk shall be duplicated and filed in con-formity with these rules as to methods of duplica-tion, form, size, and number of copies. The clerk

.33-381 0-70-vol. 2- 51

shall refuse to file any paper which is not in sub-stantial conformity with this rule or not in cleartype.

(b) Additional adverse party deflned.-As usedin these rules, the phrase "additional adverse party"means any party other than the plaintiff (or plain-tiffs Joined in one petition) and the defendant (theUnited States).

Rule 212. Duplication(a) Printing.-All requirements of printing in

this chapter may be satisfied by the use of (1) print-ing by ordinary typographic methods or (2) theprocesses of multilith or offset duplicating or theirequivalent: Provided, That in each instance the du-plication shall conform to the requirements of Rule213(a) or (b) as to paper, size, and form, and ofRule 213(d) as to pagination.

(b) Waiver of printing.-On motion assigninggood cause therefor, the court may waive the print-ing of any paper. Upon the allowance of any suchmotion, the paper shall be mimeographed; and thewaiver shall, in the absence of limitation in theorder, apply to all papers subsequently to be filed inthe case.

(c) Mimeographing and typewriting.-Whenprinting is not required, acceptable means of dupli-cation include mimeographing and typewriting asspecified In Rules 213 and 214. Papers so duplicatedshall conform to the requirements of Rule 213(c) asto size and form, and of Rule 213(d) as topagination.

Rule 213. Form and size(a) Typographic printing.-All papers duplicated

by ordinary typographic printing shall be on un-glazed paper and shall be in such size and form thatthey can be conveniently bound together so as tomake a volume having pages 61/a by 91/4 inches andtype matter 42/a by 71/o inches, with type neversmaller than small pica or 11-point type.

(b) Multilith, offset, or equivalent.-Any paperduplicated by multilith or offset duplicating or theirequivalent may (1) be made to conform to the re-quirements of paragraph (a) of this rule as to sizeof page, type matter, and type, or (2) be duplicatedon pages not exceeding 81/2 by 11 inches, with typematter not exceeding 61/2 to 91/2 inches. Papers du-plicated in conformity with clause (2) shall be doublespaced (except that quoted and Indented materialmay be single spaced), shall cover one side of thesheet only, and shall be bound or attached on the leftmargin and unfolded, They need not be Justified onthe right margin.

(c) Mimeographing or typewriting.-All papersduplicated by mimeographing or typewriting shallbe on pages not exceeding 81/2 by 11 inches, with typematter not exceeding 6!/2 by 912 inches. They shallbe double spaced (except that quoted and indentedmaterial may be single spaced), shall cover one sideof the sheet only, and shall be bound or attachedon the left margin and unfolded.

(d) Page numbers.-The first page of each sepa-rate document shall be numbered 1. Page numbersshall be In large, distinct type and shall appear Inthe upper outside corner of the page.

Rule 213Page 2341


Rule 214. Specific papers; duplication; number ofcopies

(a) Petition.-(1) Duplication: Every petitionshall be printed in conformity with Rule 212(a) andRule 213(a) or (b), unless the requirement of print-ing is waived by the court on motion pursuant toRule 212(b), in which event the petition shall bemimeographed in conformity with Rule 212(c).

(2) Number of copies: (i) Printed: Thirty copiesof a printed petition (one designated as the original)shall be filed: Provided, That an original and 4copies of the petition in typewritten form (see Rule213(c)) may be filed initially, to be followed within20 days thereafter by the filing of 30 printed copies.

(ii) Mimeographed: Every motion for the waiverof the printing of a petition shall be accompaniedby an original and 4 copies of the petition in type-written form, to be followed, within 20 days after theallowance of the motion, by the filing of 30 copiesof the petition in mimeographed form; or the motionmay be accompanied by 30 mimeographed copies(one designated as the original) in lieu of any copiesin typewritten form. (See Rule 213(c) for the re-quirements of typewriting or mimeographing.)

(b) Responsive pleadings.-0(1) Duplication:Every answer, reply, or other responsive pleadingshall be printed in conformity with Rule 212(a) andRule 213(a) or (b), unless the requirement of print-ing is waived pursuant to Rule 212(b), in whichevent the responsive pleading shall be mimeographedIn conformity with Rule 213(c).

(2) Number o1 copies: Thirty copies of each re-sponsive pleading (one designated as the original)shall be filed, plus 10 additional copies for each ad-ditional adverse party, as defined in Rule 211(b).

(c) Procedural motions.-) Duplication: Anyprocedural motion (as defined in Rule 52(c)), anyobjection or response thereto, any brief, memoran-dum of law, or affidavit included therein or at-tached thereto (as required by Rule 51(c) ), and anyrequest for review pursuant to Rule 53(b) (3) of anorder entered pursuant to Rule 53(b) (1), may betypewritten in conformity with Rule 213(c), unlessthe party elects to have it printed or mimeographed.(See Rule 212(a) and Rule 213(a) and (b) for therequirements of printing, and Rule 213(c) for therequirements of mimeographing.)

(2) Number of copies: (1) General: Except as pro-vided in subdivisions (i), (iii), and (iv) of this sub-paragraph (2), an original and 3 copies of eachpaper described in the preceding paragraph shall befiled.

(ii) Request for review; motion for judgment:An original and 11 copies shall be filed of a requestfor review pursuant to Rule 53(b) (3), or of a motionfor Judgment pursuant to Rules 54(b) (3) (iii) and141(b).

(lit) Motion for production; motion for call: Anoriginal and 5 copies shall be filed of a motion foran order to produce pursuant to Rule 74(a), or ofa motion for call pursuant to Rule 75.

(iv) Additional copies for adverse parties: Foreach additional adverse party, as defined in Rule211(b), there shall be filed 1 additional copy of anymotion within the categories defined in subdivisions(I), (ii), and (iii) of this subparagraph.

(d) Dispositive motions.-(1) Duplication: Anydispositive motion (as defined in Rule 52(a)), anyresponse or reply thereto (as authorized by Rule52(b) ), any brief, memorandum of law, or affidavitincluded in or attached thereto (as required by Rule51(c) ), and any request for review pursuant to Rule54(b) (3) of a recommendation made pursuant toRule 54(b) (1), may be typewritten in conformitywith Rule 213(c), unless it exceeds 5 pages in length,in which event it shall be printed in conformity withRule 212(a) and Rule 213(a) or (b).

(2) Number of copies: An original and 19 copiesof each paper described in the preceding subpara-graph shall be filed, plus 2 additional copies for eachadditional adverse party, as defined in Rule 211(b).

(e) Motions /or rehearing, for new trial, /oramendment of judgment, or for relief from judgmentor order.-(1) Duplication: Any motion for rehear-ing, for a new trial, or for amendment of Judgment(Rule 151), or for other relief from a judgment ororder (Rule 152), Including any brief in supportthereof or in response thereto, may be typewrittenin conformity with Rule 213(c), unless the partyelects to have it printed in conformity with Rule212(a) and Rule 213(a) or (b), or mimeographed inconformity with Rule 213(c).

(2) Number of copies: An original and 11 copiesof each paper described in the preceding subpara-graph shall be filed, plus 1 additional copy for eachadditional adverse party, as defined in Rule 211(b).

(f) Requested findings.-(1) Duplication: Re-quested findings, including briefs in support thereofand objections thereto, to be filed pursuant to Rule134(c)-(e) may be typewritten in conformity withRule 213(c), unless the party elects to have themmimeographed in conformity with Rule 213(c), orprinted in conformity with Rule 212(a) and Rule213(a) or (b).

(2) Number of copies: An original and 3 copiesof each paper described in the preceding subpara-graph shall be filed, plus 1 additional copy for eachadditional adverse party, as defined in Rule 211(b).

(g) Exceptions.-(1) Duplication: Exceptionspursuant to Rule 143 shall be printed in conformitywith Rule 212(a) and Rule 213(a) or (b), unlessprinting is waived pursuant to Rule 212(b), in whichevent they shall be mimeographed in conformitywith Rule 213(c).

(2) Number of copies: Thirty copies of exceptions(one designated as the original) shall be filed, plus10 additional copies for each additional adverseparty, as defined in Rule 211(b).

(h) Brle/s.-(1) Duplication: Briefs submittedpursuant to Rules 143 and 173 shall be printed Inconformity with Rule 212(a) and Rule 213(a) or (b),unless printing is waived pursuant to Rule 212(b),in which event they shall be mimeographed in con-formity with Rule 213(c).

(2) Number of copies: Thirty copies (one desig-nated as the original) of each brief under Rules 143and 173 shall be filed, plus 10 additional copies foreach additional adverse party, as defined in Rule211(b). (See paragraphs (c), (d), (e),and (f) of thisrule for information regarding duplication and num-ber of copies of briefs other than those submittedunder Rules 143 and 173.)

Rule 214 Page 2342


(i) Miscellaneous.- (1) Duplication: All papersnot specifically mentioned in the preceding para-graphs of this rule may be typewritten in conformitywith Rule 213(c), unless the party elects to havethem mimeographed in conformity with Rule 213(c)or printed in conformity with Rule 212(a) and Rule213(a) or (b).

(2) Number of copies: An original and 3 copies ofeach paper described in the preceding subparagraphshall be filed, plus 1 additional copy for each addi-tional adverse party, as defined in Rule 211(b).

XIX. FEES

Rule 221. Fees for filing petitions

(a) Petitions under rule 63(a).- -At the time of thefiling of a petition under Rule 63(a), there shall bepaid a fee of $10 plus $1 for each party plaintiff(other than the first party plaintiff named in thepetition) demanding a separate judgment.

(b) Other petitions.-Except for petitions filedunder Rule 63(a), a fee of $10 shall be paid at thetime of the filing of any petition or intervening peti-tion, but a fee of $5 shall apply where, upon writtenapplication accompanying the petition, it is shownthat the case involves less than $500 and that it isnot a class case. In any case where a $5 fee has beenpaid and the judgment of the court is for $500 ormore, an additional amount of $5 shall be paid tothe clerk of the court before a transcript of thejudgment is furnished.

Rule 222. Fees for copies

(a) Opinions and reports.-For each printed copyof an opinion by the court or of an opinion or reportby a commissioner, a fee of 25 cents is fixed for 5pages or less, 35 cents for those over 5 pages and notmore than 10 pages, 45 cents for those over 10 andnot more than 20 pages, and 50 cents for those ofmore than 20 pages.

(b) Judgments or other documents.-(1) A fee of10 cents a folio is fixed for furnishing certified copiesof judgments.

(2) Copies of other documents on file may be ob-tained by the use of a coin-operated photocopymachine in the clerk's office.

Rule 223. Fee for record on certiorariA fee of $5 shall be charged for certifying a record

pursuant to an application under Rule 154 for useby the plaintiff in the Supreme Court of the UnitedStates.

Rule 224. Fees in cases appealed to this court

A filing fee of $10 shall be collected by the clerkfor any appeal (other than an appeal by the UnitedStates) filed in the Court of Claims from a decisionof the Indian Claims Commission or from a decisionof a United States District Court under 28 U.S.C.§ 1504.

APPENDIX A

INSTRUCTIONS TO REPORTERS; FORMS

Reference is made to Rules 122 and 133(e) (2) forreporting arrangements, including the requirementfor the recording of proceedings, the control and

oath of the reporter, and the return of the transcriptand exhibits.

The following instructions and forms are intendedto guide reporters in preparing the transcripts oftestimony taken and proceedings had before thecommissioners of the United States Court of Claims.

1. Caption page.-There shall be stated on thecaption page (a) the style of the cause in which thetestimony is taken; (b) the place and date of itstaking; (c) the identity of the party by whom eachwitness is called; (d) the name of the commissioner;and (e) the appearances of counsel. (See Form A.)

2. Testimony.-It shall appear in the transcriptof the proceedings and testimony by whom eachwitness was examined and cross-examined. At thetop of each page shall appear the name of the witnessand the nature of his examination, such as "Roe-direct," "Roe-cross," "Roe-redirect."

3. Preparation o1 transcript.-The reporter shalltranscribe all testimony on nontransparent whitepaper, either 81 inches wide by 11 inches long, or 8inches wide by 101,1 inches long, bound on the leftmargin. The pages shall be numbered consecutively.

It shall not be necessary for the witnesses to signthe transcripts of their testimony.

4. Exhibits.-All exhibits offered by either of theparties shall bear the caption and number of thecase, the exhibit numbers (in figures), whether forplaintiff or defendant, and the number of sheets ineach exhibit. All exhibits admitted in evidence ordesignated to accompany the transcript shall accom-pany and be filed with the transcript of the testi-mony, but shall not be affixed thereto.

5. Certificate of reporter.-The reporter shallappend to the transcript of the testimony a certificatesimilar to Form B. The certificate shall be signed bythe reporter.

6. Index.-At the beginning of each volume of thetranscript of testimony, there shall be an index con-taining (a) the names of the witnesses examined,citing the pages of the transcript where direct, cross-,redirect, or recross-examination of the respectivewitnesses began; and (b) the exhibits in the case,first for the plaintiff and then for the defendant,with a brief statement of the nature of each of theexhibits and with references to the pages of thetranscript where said respective exhibits were (1)offered and (2) received in evidence. In addition,upon the preparation of the final transcript, wherethe number of pages exceeds 500, a master indexcontaining the same information shall be preparedand bound separately.

FORM AIN THE UNITED STATES COURT OF CLAIMS

No.__JOHN DOE, PLAINTIFF

V.THE UNITED STATES, DEFENDENT

CHICAGO, ILLINOIS,

Moday, , 19--10 a.m.

TESTIMONY FOR PLAINTIFF (OR DEFENDANT)

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

Page 2343 App. A


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

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

Do you swear (or affirm) that you will well and trulytake down and transcribe the proceedings in this trialand do all other things required of you by the commis-sioner in connection therewith; and that, pursuant tothe rules, you will file with the clerk the original copy ofthe transcript and the exhibits, irrespective of your finan-cial arrangements with counsel?

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

Richard Roe, a witness produced on behalf of theplaintiff (or defendant), having first been duly swornby said commissioner, was examined, and answer tointerrogatories testified as follows:

Q. State your name, etc.A . ..------- -----------Q. Have you, etc.?A .--------- -----------

FORM B

CERTIFICATE OF REPORTER

I, X. Y. Zee, reporter, hereby certify that at thetime and place aforesaid, after being duly sworn bythe commissioner, I did well and truly take downand transcribe the proceedings in this case, includ-ing the questions propounded to and the answersgiven by said witnesses so called by plaintiff (or de-fendant) ; and that the foregoing record is a correcttranscript of the procedeings and testimony so hadtherein.

In witness whereof I have hereunto set my handthis day of , 19 .

(Signed) X. Y. ZEE,Reporter, 200 Equitable Building, Chicago, Ill.

APPENDIX B

COURTROOMS OF THE UNITED STATES COURT OF CLAIMSIN CHICAGO, Los ANGELES, NEW YORK, AND SANFRANCISCO'

CHICAGO:United States Courthouse & Federal BuildingRoom 1614219 South Dearborn StreetChicago, Illinois 60604

Los ANGELES:Federal BuildingRoom 8549300 North Los Angeles StreetLos Angeles, California 90012

NEW YORK:United States Customs Court & Federal OfficeBuildingRooms 230 and 23826 Federal PlazaNew York, New York 10007

No facilities exist at any of these locations for thereceipt or forwarding of papers. The judges and all otherpersonnel of the Court of Claims are stationed at Wash-ington, c/o United States Court of Claims, 717 MadisonPlace, N.W., Washington, D.C. 20005.

SAN FRANCISCO:Federal BuildingRoom 19428450 Golden Gate AvenueSan Francisco, California 94102

APPENDIX C

PROCEDURE IN COMMON CARRIER CASES

TABLE OF CONTENTS

I. Carrier's Request for Admission of Facts:1. Time for Filing Request.2. Form and Content of Request:

(A) Duplication.(B) Copies; filing; service.(C) Signature of attorney.(D) Numbered paragraphs; material

facts.(E) Attachments.(F) Nature of dispute; statement of

issues.(0) Schedule: claim for transportation

of property:(1) List of carrier's bills in

dispute.(2) Detail for each bill of

lading.(3) Computation for typical

bill of lading.(H) Certification and signature of car-

rier: property.I) Schedule: claim for transportation of

passengers:(1) List of carrier's bills in

dispute.(2) Detail: each transportation

request or warrant.(J) Certification and signature of car-

rier: passengers.3. Plaintiff's Noncompliance: Consequences.

II. Defendant's Response:4. Time for Filing; Commissioner's Order.5. Copies; Service: Signature.6. Agreement; Modification; Denial.7. Defendant's Statement of Issues.8. Verification of Carrier's Computations.9. Schedule: Defendant's Basis for Applicable

Charges.10. Failure To Deny or Respond Within Specified

Time: Consequences.11. Qualified Denial of Facts Available to

Defendant: Consequences.12. Relation to Pleadings; Time for Filing Answer

or Counterclaim.III. Application to Special Cases; Commissioner's Order:

13. Pending Cases.14. Cases Where Issues Are Limited; Typical Bills.

IV. Commissioner's Responsibility:15. Time Extensions.16. Procedural Disputes: Disposition.

V. Acceptance of Response; Pretrial; Judgment:17. Plaintiff's Acceptance of Response.18. Pretrial Conference; Fixing Amount of

Recovery.19. Commissioner's Report; Entry of Judgment.

VI. Cases Within Primary Jurisdiction of Interstate Com-merce Commission:

20. Referral to Interstate Commerce Commission:Defendant's Motion for.

21. Plaintiff's Response to Defendant's Motion forReferral.

22. Referral to Interstate Commerce Commission:Plaintiff's Motion for.

23. Defendant's Response to Plaintiff's Motion forReferral.

24. Motion for Referral: Commissioner's Recom-mendation.

25. Failure To File Referral Motion in SpecifiedTime: Consequences.

App. B Page 2344

TITLE 28, APPENDIX-RULES OF COURT OF CLAIMS

PROCEDURE IN COMMON CARRIER CASES'

I. CARRIER'S REQUEST FOia ADMISSION OF FACTS

1. Time for filing rcquest.-In every suit filed bya common carrier for the recovery of freight and/orpassenger transportation charges, the carrier shall,at the time the petition is filed or within 30 daysthereafter, file with the clerk of the court a requestfor admission by the defendant of the genuinenessof any relevant documents described in and exhibitedwith the request and of the truth of the materialmaterial matters of fact relied on by the carrier forrecovery in the action.

2. Form and content of request.-The request shallconform to the following requirements:

(A) Duplication.-The request, with accompany-ing schedules and documents, may be typewritten, ormay be printed, mimeographed, or otherwise me-chanically reproduced from a typewritten original,provided that all copies filed with the clerk shall beclearly legible and that the words and figures showntherein shall be in large enough type to be readwithout difficulty.

(B) Copies; filing; service.-When the request istypewritten, an original to be retained by the clerkand 4 copies to be served on defendant, as providedin Rule 22, shall be filed by the plaintiff. If the re-quest is mimeographed, printed, or otherwise repro-duced from a typewritten original, the plaintiff shall,in addition to the 5 copies prescribed by the preced-ing sentence, file 1 additional copy for each Govern-ment agency for which the shipment or shipments insuit were made. Such additional copy or copies shallbe served on defendant as provided in Rule 22.

(C) Signature of attorney.-The request shall besigned by the attorney of record for the plaintiff.

(D) Numbered paragraphs; material facts.-Thestatements contained therein shall be properly sepa-

l Effective December 2, 1957. This revision was adoptedJuly 2, 1957, amending the Memorandum Order ofMarch 11, 1953 (effective April 1, 1953). The revised orderof July 2, 1957, contained the following preamble:

Practically all suits filed in the Court of Claims bycommon carriers for the recovery of freight and passen-ger transportation charges require a consideration offreight classifications, tariffs, and related data, andinvolve determinations of the rates and computationsof the charges due, based on the application of suchclassifications and tariffs. Most of the actions have re-sulted from a determination made by the GeneralAccounting Office or other Government agency thatthere was an overpayment of the carrier's charges bythe Government or from the refusal of the GeneralAccounting Office or a Government corporation to paysupplemental bills submitted by carriers for claimedundercharges. In all these cases, the Department of Jus-tice relies on the General Accounting Office and otheragencies of the Government for the Information re-quired in the defense of the suits, including a redeter-mination by the General Accounting Office of theamounts due the carriers. In order to secure a moreexpeditious disposition of these cases by (a) disposingof cases or claims, wherever possible, through the filingof requests for the admission of facts and responsethereto, or through the medium of pretrial conferences:(b) limiting the Issues to carrier's bills which are actu-ally in dispute; and (c) ascertaining in advance of trialthe amount that either party would be entitled to re-cover In the event of a decision in its favor, it is ordered:

rated and numbered and shall consist of specificstatements of material factr which the plaintiff ex-pects to prove as opposed to general allegations ofthe kind used in pleadings.

(E) Attachmets.-There shall be attached to therequest copies of any contracts, letters, or other docu-ments (excluding tariffs and other documentsreferred to in the schedules required by paragraphs2(G) and 2(I) hereof) which plaintiff proposes tooffer in evidence, in order that the genuineness ofsuch documents may be admitted by the defendantand the necessity of calling a witness to identify thesame may be avoided.

(F) Nature of dispute; statement of issues.-Thestatements in the request shall be sufficiently explicitto show the nature of the dispute and the specificreason or reasons why the plaintiff believes it is en-titled to recover higher rates or charges than thoseallowed by the Government. The word "dispute," asused in the preceding sentence, means the shipmentor shipments with respect to which the General Ac-counting Office or other agency of the Governmentdetermined that the carrier's charges had been over-paid or refused to pay the carrier's supplemental billscovering such shipments, rather than subsequentshipments which are not in dispute except for thefact that the overpayments determined as to theshipments in dispute have been deducted from theamount of the carrier's bills covering such subsequentshipments. In order to show the nature of the disputethere shall be attached to or included in plaintiff'srequest a "statement of the issues" which, with re-spect to each group of the carrier's bills involvingthe same issue, shall consist of a brief narrativestatement of such issue with a reference to (1) courtdecisions involving the same issue, or (2) the tariffsor other authority relied upon by plaintiff, and thetariffs or other authority which plaintiff believesdefendant relied upon in making deductions forclaimed overpayments to the carrier or in refusingto pay the carrier's supplemental bills for claimedundercharges.

(G) Schedule: claim for transportation of prop-erty.-Wliere the claim is for the recovery ofcharges for the transportation of property for theGovernment, there shall be attached to the request adetailed schedule, prepared by or under the supervi-sion of the general auditor, comptroller, or otherprincipal accounting officer of the carrier. The sched-ule shall contain the following factual information:

(1) List of carrier's bills in dispute.-Thenumber of each of the carrier's bills for theshipments in dispute (as distinguished from thenumber of a subsequent bill from which theGAO made a deduction following its determina-tion of an overpayment on the bill in dispute).

(2) Detail for each bill o1 lading.-For eachbill of lading in dispute, covered by each billreferred to In (1) above, the following facts:

(a) the number and symbol of each billof lading;

(b) the date of the shipment;(c) the origin and the destination of the

shipment;

Page 2345 App. C


(G) Schedule-Continued

(d) a description of the commodity orcommodities shipped, including a descrip-tion of the packing where this affects therate'

(e) car number and initial;(f) the weight of the shipment including

the minimum carload weight when greaterthan the actual weight;

(g) when the shipment in dispute consistsof one or more carloads of mixed commodi-ties a description of the different commodi-ties, and the respective weights thereofloaded in each car, including minimum car-load weights where such weights affect therates;

(h) the rates claimed for each article inthe shipment and for any accessorial serv-ices;

(I) where land-grant rates are involved,the percentage of deduction, or the percent-age to be paid;

() the total freight charges on each billof lading;

k) amounts refunded by carrier, if any,and the dates thereof;

(1) if the overpayment determined byGAO or other agency has been deductedfrom the carrier's subsequent bill or bills,the number of such subsequent bill or bills,the amount deducted, and the date thereof;

(in) the total amount paid the carrier;(n) the balance due;(o) a specific reference to the item or

items in designated tariffs authorizing thecharges claimed, including the classificationrating if necessary, and authorization forany accessorial charges claimed; or to a Sec-tion 22 quotation;

(p) the Government file reference num-ber as obtained from GAO Form 1003, theCertificate of Indebtedness, or other docu-ment issued by the GAO;

(q) if the shipment in dispute consists inwhole or in part of a through transit move-ment, (1) the through assessable chargesfrom the original point of shipment to thefinal destination, including a description ofthe commodity, the transited weight, thethrough rate-less land-grant deduction, ifany-the tariff or special authority for thethrough rate used, and, if local tonnage isinvolved, the weight thereof, the points be-tween which local tonnage moved, and therates and charges assessed against such ton-nage; (2) detail of the net amounts paid toand beyond the transit station, includingreferences to the "inbound" and "outbound"shipments by bill of lading number and sym-bol; date of shipment, origin and destina-tion, weight rate, and the net amounts paidto the respective "Inbound" and "outbound"carriers, naming them and identifying thebill numbers on which such payments weremade; and (3) the balance due, i.e., the dif-ference between the through assessable

charges, including the charges on local ton-nage, if any, and the respective net amountspaid on the "inbound" and "outbound" ship-ments; and

(r) a brief statement as to the basis forthe claim or other brief statement which thecarrier deems necessary to explain the pecu-liarities of the shipment.

(3) Computation jor typical bill o1 lading.-Following the listing of the information hereinrequired with respect to each group of carrier'sbills involving the same issue or basis of freightcharge computation, the carrier slall either (I)include in the schedule a computation of thefreight charges on one bill of lading, typical ofeach group, showing how it comlputed the freightcharges for that bill of lading, setting forth thebasis or formula used, and referring to the spe-cific items in particular tariffs or other authoritywhich it relied upon for that purpose, or (ii)attach a worksheet showing such computationand information with respect to each typical billof lading.

(H) Certification and signature o1 carrier: Prop-erty.-The schedule shall be certified by the generalauditor, comptroller, or principal accounting officerof the carrier, as follows:

I, ------------------- , the(Name) (Title)

-------------- - , of th e(Name of Carrier)

.............................................

do hereby certify that the above and foregoingschedule has been prepared from the books andrecords of said company for use in a suit in theUnited States Court of Claims, entitled --------

-v.

Tie United States, No.

--------- and that to the best of my knowledge,information, and belief the matters containedtherein are true and correct.

To certify which, witness my hand at .....-this -------- day of

, .

(Signature of general auditor, comp-

troller, or principal accounting officer.)

(I) Schedule: claim for transportation of passen-gers.-Where the claim is for the recovery of chargesfor the transportation of passengers for account ofthe Government, there shall be attached to the re-quest a schedule, prepared by or under the supervi-sion of the general auditor, comptroller, or otherprincipal accounting officer of the carrier. The sched-ule shall contain the following factual information;

(1) List of carriers' bills in dispute.-Thenumber of each of the carrier's bills in dispute(as distinguished from the number of a subse-quent bill from which the GAO made a deduc-tion following its determination of an overpay-ment on the bill in dispute).

(2) Detail: each transportation request orwarrant.-For each transportation request orwarrant in dispute, covered by each bill referredto in (1) above, the following facts:

(a) the symbol and number of each Gov-ernment transportation request or warrantIn dispute;

App. C Page 2346


(I) Schedule-Continued(2) Detail-Continued

(b) the date of sevice;() the origin and destination of the

travel;(d) the class or type of service;(e) whether the travel was "one way" or

"round trip";(f) the number of the special movement,

if any;(g) the route of travel;(h) the number of persons that traveled;(i) the gross per capita fare;(j) the amount of land-grant deduction;(k) the assessable passenger charges;(1) the amount paid;(m) amounts refunded by carrier, if any,

and the oates thereof;(n) where an overpayment was deter-

mined by the Government and deductedfrom a carrier's subsequent bill, the num-ber of such subsequent bill, the amount ofthe deduction, and the date thereof;

(o) the total amount paid;(p) the balance due;(q) the tariff reference and item or spe-

cial rate authority;(r) the Governmert file reference; and(s) a brief statement as to the basis for

the claim, including, where appropriate, abrief explanation showing the extent towhich the ticket issued by the carrier wasnot used, and the value of the unused partof the ticket.

(J) Cerification and signature o1 carrier: pas-sengers.--The schedule covering the transportationof pass rngers shall be certified in the same manneras provided In (H) above, except that where a re-quest includes schedules pertaining to claims for boththe transportation of passengers and freight, onecertification shall suffice for all schedules.

3. Plaintiff's noncompliance: consequences.-Inthe event a plaintiff in any action within the purviewof this order fails or refuses to comply with the pro-visions hereof, the commissioner may (1) refuse toallow it to support designated claims or prohibit itfrom introducing in evidence designated documentsor items of testimony, or (2) may report such non-compliance to the court for appropriate action,which may include a dismissal of the petition or anypart thereof.

II. DEFENDANT'S RESPONSE

4. Time for filing; commissioner's order.-Promptlyafter the filing of the plaintiff's request, the com-missioner to whom the case is assigned shall, by or-der filed with the clerk, fix a reasonable time withinwhich the defendant shall file its response to therequest. A copy of such order shall be served on theparties as provided in Rule 23.

5. Copies; service; signature.-The defendant'sresponse shall consist of an original to be filed withthe clerk and 4 copies to be served on plaintiff asprovided in Rule 23. The response shall be signed bydefendant's attorney of record and shall comply withthe terms of paragraph 2(A) hereof.

6. Agreement; modification; denial.-The de-

fendant sball file such response within the timefixed by the commissioner, agreeing to the separateItems vf fact, modifying the same in accordance withthe facts known by the defendant, specifically deny-ing the same, or setting forth in detail the reasonswhy it cannot truthfully admit or deny designatedportions of the request.

7. Defendant's statement of issues.-If defendantdoes not agree with plaintiff's "statement of theissues," it shall attach to or include in the responseits "statement of the Issues," which, with respect toeach group of the carrier's bills involving the sameissue, shall consist of a brief narrative statement ofthe issue (as defendant contends) with reference to(1) a court decision involving the same issue, or (2)the tariffs or other authority relied upon bydefendant.

8. Verification of carrier's computations.-If thedefendant finds that the schedule attached to plain-tiff's request, or any portion thereof affecting theamount claimed, is incorrect on the basis of thetariffs, Section 22 quotations, or other authorityrelied on by plaintiff in its request, there shall beattached to the response a schedule prepared by thedefendant, sett'ng forth the facts and figures as tothe amount of freight charges which defendant as-serts would be due on each carrier's bill if the courtholds that the tariffs or other authorities relied onby plaintiff in its request are applicable, and showinghow the defendant arrived at any changes or cor-rections in the amounts claimed by palintiff.

9. Schedule: defendant's basis for applicablecharges.-If the defendant claims that the tariffs,Section 22 quotations, or other authority relied onby .)laintiff are inapplicable with respect to any ofthe carrier's bills listed in plaintiff's request, thereshall be attached to the response a schedule preparedby the defendant, setting forth the facts and figuresin detail as to the amount of freight or passengercharges defendant claims is due on each disputedcarrier's bill and containing a specific reference tothe item or Items in designated tariffs, Section 22quotations, or other authority relied on by defendantin support of its contention. The schedule shall alsocomply with the terms of paragraph 2(G) (3) hereof.

10. Failure to deny or respond within specifiedtime: consequences.-Except where the response de-tails the reasons why the defendant cannot admitor deny a particular statement in the request, anyfact not so modified or denied in the response shallbe deemed admitted, and the failure of the defend-ant to file its response within the time specifiedby the commissioner shall be taken as an admissionof all the facts as set forth in the request.

iI. Qualified denial of facts available to de-fendant: consequences.-Where the request setsforth any facts that are within the knowledge of theGeneral Accounting Office or of the department oragency of the defendant for which the transporta-tion was performed-and these specifically includebut are not limited to the facts and figures whichplaintiff, by this order, is directed to include in itsschedules-a response stating that defendant cannottruthfully admit or deny such facts, or a denial basedon a lack of knowledge by defendant's attorney ofrecord, shall be deemed an admission thereof: Pro-vided, That such a response shall not be deemed an

Page 2347 App. C


admission if accompanied by the sworn statement ofthe official in charge of the records that a search hasbeen made for the necessary documents or informa-tion and that the documents or information cannotbe found.

12. Relation to pleadings; time for filing answeror counterclaim.-In all cases to which this orderapplies, the time for filing defendant's answer andany counterclaim asserted by it shall, without regardto the provisions of Rules 38 and 40, be contempora-neous with the date fixed by the commissioner forfil!ng defendant's reponse to plaintiff's request. Atits option, the defendant may include the responsein its answer or counterclaim, which pleadings,nevertheless, shall otherwise comply with the ruh'sapplicable to them.

III. APPLICATION TO SPECIAL CASES; COMMISSIONER'SORDER

13. Pending eases.-The commissioner may in-voke the provisions of this order with respect to anypending case of the class covered by the terms here-of, including cases in which judgment has been en-tered in favor of the plaintiff pursuant to Rule 131(c). In such pending cases, the commission shall fixthe time within which plaintiff's request, as well asdefendant's response thereto, is to be filed.

14. Cases where issues are limited; typical bills.-The commissioner may also Invoke the provisions ofthis order, or applicable portions thereof as specifiedby him, with respect to any case of the class cov-ered by the terms of th's order, where the trial inthe first instance has been limited to the issues oflaw and fact relating to the right of plaintiff to re-cover. In that event, and in a case where the petitioncovers a number of bills of lading, involving a com-mon issue of law or fact, the plaintiff's request andthe defendant's response shall be limited to the mat-ters that are essential to enable the court to deter-mine the issues of fact and law relating to the rightof plaintiff to recover, and the schedules attached toplaintiff's request and to defendant's response shallcover only one typical bill of lading, or such repre-sentative bills of lading as the commissioner decidesare necessary, to enable the court to determine thequestion of defendant's liability. If the court holdsthat the plaintiff is entitled to recover, Judgment tothat effect shall be entered in accordance with Rule131 (c).

IV. COMMIsSIONER's RESPONSIBILITY

15. Time extensions.-The commissioner may, inhis discretion, grant necessary extensions of time forcompliance with any of the provisions of this order.

16. Procedural disputes: disposition.-Prior to thetime the case is submitted to the court, the com-missioner shall resolve al' questions and disputeswith respect to the procedure to be followed in com-pliance with this order.

V. ACCEPTANCE OF RESPONSE; PRETRIAL; JUDGMENT

17. Plaintifi's acceptance of response.-If a plain-tiff Is willing to accept the amount shown to be dueit in defendant's response, or, where a counterclaimhas been filed, is willing to accept the net amountshown to be due plaintiff in the response after de-

ducting the amount of defendant's counterclaim,plaintiff's attorney of record shall sign and file withthe clerk an original typewritten and 2 carbon copiesof a statement entitled "Plaintiff's Acceptance of theAmount Defendant Admits Is Due," stating thereinthat the response shows that a specified sum is dueplaintiff or, where a counterclaim has been filed, thatthe response shows that the net amount due plain-tiff after deducting the amount of the counterclaimis a specified sum, and that plaintiff consents to theentry of judgment in the amount specified in favorof plaintiff in full settlement and satisfaction of allclaims asserted in the petition and request for ad-mission of facts.

18. Pretrial conference; fixing amount of recov-ery.-When plaintiff does not file an acceptance ofthe amount shown to be due in the response, a pre-trial conference shall be held for the purpose of (1)resolving all issues and recording an agreement forthe entry of a Judgment or for a dismissal of the peti-tion or any part thereof, or (2) segregating the car-rier's bills in dispute forn those not in controversyand fixing the amount that either party would beentitled to recover in the event of a decision in itsfavor, and/or (3) taking any other action that mayaid in the prompt disposition of the suit.

19. Commissioner's report; entry of judgment.-Where all material issues are disposed of through thefiling by plaintiff of its acceptance of the amountshown to be due in defendant's response, or at a pre-trial conference, or by the defendant's failure to fileits response within the time fixed by the commis-sioner, j Igment may be entered on recommendationof the commissioner, as set forth in his memorandumreport, or on a motion for summary judgment.

VI. CASES WITHIN PRIMARY JURISDICTION OF INTER-STATE COMMERCE COMMISSION

20. Referral to Interstate Commerce Commission:defendant's motion for.-In any suit subject to theterms of this order, if defendant contends, whetheron the basis of the freight charge computations usedby plaintiff or on the basis of the freight charge com-putations used by defendant, that any of the carrier'sbills listed in the request raise issues within the pri-mary Jurisdiction of the Interstate Commerce Com-mission and intends to move the court to refer suchissues to that agency, defendant shall file the mo-tion with the clerk at the time fixed for the filing ofits response under this order. The motion shall com-ply with Rule 51 and shall contain: (1) an identi-fication of the carrier's bills involved unless all thebills in suit are included in the motion; (2) a de-scription of the commodities shipped and a state-ment respecting any other factors which are perti-nent to the issues covered by the motion; (3) a refer-ence to the applicable tariffs and a copy of thepertinent provisions thereof; (4) a precise statementof the issue or issues to be referred; and (5) a state-ment as to whether the Interstate Commerce Com-mission has construed the cited tariffs in priotr deci-sions or has clarified the factors underlying them,citing the pertinent decisions, if any.

21. Plaintilf's response to defendant's motion forreferral.-Plaintiff's response to the motion shall be

App. C Page 2348


filed in the manner prescribed by Rule 51 and within30 days after service of the motion, and shall statewhether plaintiff concurs in the motion. If plaintiffcontends that the Interstate Commerce Commissionhas construed the tariffs referred to in defendant'smotion or has clarified the factors underlying themin previous decisions, the response shall cite suchdecisions.

22, Referral to Interstate Commerce Commission:plaintifl's motion for.-If plaintiff, in any case sub-Ject to the terms of this order, contends that any ofthe carrier's bills in suit raise issues within the pri-mary jurisdiction of the Interstate Commerce Com-mission and intends to move the court to refer suchissues to that agency, plaintiff's motion shall be filednot later than 30 days from the date defendant'sresponse is filed and shall conform to the require-ments of paragraph 20 hereof.

23. Defendant's response to plaintifi's motion forreferral.-Defendant's response to plaintiff's motionshall conform to the requirements of paragraph 21above.

24. Motion for referral: commissioner's recom-mendation.-Any motion filed pursuant to para-graphs 20 and 22 above shall, without further orderby the court, be transmitted to the commissioner forhis action and recommendation thereon. At the timethe commissioner submits his recommendation tothe court, he shall attach to the original thereof anysupporting data which either party may have sup-plied to him in addition to the information containedin the motion. The trial of the case shall be deferreduntil the court acts on the motion.

25. Failure to file referral motion in specified time:consequences.-The failure of either party to file,within the time prescribed above, a motion request-ing the court to refer a pending case or any partthereof to the Interstate Commerce Commissionmay be deemed good cause for denying any suchmotion thereafter filed.

APPENDIX D

PROCEDURE IN CONGRESSIONAL REFERENCE CASES

(General Order by the Chief Commissioner)

THE CHIEF COMMISSIONER

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

GENERAL ORDER No. 3

(Entered September 1, 1969)

1. Purpose and derivation.-The purpose of thisOrder is to specify procedures applicable to casesreferred to the chief commissioner under the ena-bling act, cited In the caption. The present ordercombines, in amended form, and replaces the ChiefCommissioner's General Order No. 1, entered No-vember 22, 1966 (amended December 21, 1966), andhis General Order No. 2 entered December 21, 1966.

2. Service of notice.-Upon referral of a case tothe chief commissioner by either House of the Con-gress, the clerk, after docketing the same, shall serve

a notice, as provided in Rule 23 of the Rules of theCourt of Claims (except that the notice shall befrom the chief commissioner rather than in the nameof the court), ol each person whose name and ad-dress are shown by the papers transmitted and whoappears to be interested in the subject matter of thereference, which notice shall set forth the filing ofthe reference and state that the person notified ap-pears to have all interest therein and that suchperson shall have 90 days within which to file hispetition. At the same time the clerk shall forward acopy of each such notice to the Attorney General.

3. Procedure alter notice.-After service of noticeupon the interested person or persons, all furtherproceedings for the disposition of the case shall be inaccordance with the rules prescribed for such casesgenerally by the chief commissioner in this Order.

4. Petition.-Any person served with notice pur-suant to paragraph 2 of this Order who desires toassert a claim may do so by filing a petition in ac-cordance with Rules 21 and 35 (or Rule 36) of theRules of the Court of Claims, except that the petitionshall be captioned as provided in paragraph 7 of thisOrder.

5. Failure o1 party to appear.-If no interestedclaimant files his petition within the time specifiedin the notice served by the clerk, the case may bereported upon the papers filed and upon such evi-dence, if any, as may be produced by the AttorneyGeneral.

6. Role of chief comm issioner.-The 1966 enablingact (cited in the caption) directs the chief commis-sioner to prescribe rules and regulations for con-gressional reference cases and "to require the ap-plication of the pertinent rules of practice of theCourt of Claims insofar as feasible." Accordingly,the Rules of the Court of Claims are adopted byreference to the extent feasible, and subject in someinstances to stated modifications and specific ex-clusions herein stated. Otherwise, the role of thechief commissioner is administrative only.

Upon the filing of a petition, he will by order refereach congressional reference case to a trial commis-sioner and will designate a review panel of threeother commissioners for each case. The decision ofthe review panel, consisting of findings of fact andconclusions, when filed by the presiding commissionerof the panel, will be transmitted to the appropriateHouse of Congress. The chief commissioner will en-tertain no appeals or requests for review of any rul-ings or actions by a trial commissioner or a reviewpanel. General Orders, as in the present instance,will emanate from the chief commissioner. Specificorders will also be issued by him In the reference ofcases to trial commissioners and in the designationof review panels. Otherwise, orders in specific caseswill emanate from the trial commisioners and thereview panels.

7. Captions.-Title 28 U.S.C. § 2509(b), asamended, provides that "none of the rules, rulings,findings, or conclusions authorized by this sectionshall be subject to judicial review." The role of theUnited States Court of Claims in congressional refer-ence cases is limited in that none of the proceduresin such cases may be before the court. All papers,

Page 2349 App. D

T2TLE 28, APPENDIX.-RULES OF COURT OF CLAIMS

including pleadings and motions by the parties andthe orders and reports of the trial commissionersand the review panels, shall be captioned as follows:

BEFORE THE CHIEF COMMISSIONER

Of The

UNITED STATES COURT OF CLAIMS

In Congressional Reference Case No.(Filed

8. Subpoenas.-Every subpoena (authorized byTitle 28 U.S.C. § 2509(b), as amended) shall be (a)captioned as above and (b) issued by the trial com-missioner to whom the congressional reference caseis referred.

9. Sanctions.-Title 28 U.S.C. § 2509(f), asamended, provides as follows:

(f) Any act or failure to act or other conduct by aparty, a witness, or an attorney which would call for theimposition of sanctions under the rules of pratice of theCourt of Claims shall be noted by the panel or the trialcommissioner at the time of occurrence thereof and uponfailure of the delinquent or offending party, witness, orattorney to make prompt compliance with the order ofthe panel or the trial commissioner a full statement ofthe circumstances shal! be incorporated in the report ofthe panel.

There is absolutely no delegation of judicial powerfrom the Court of Claims to the chief commissioner,the trial commissioner, or the review panel, in con-gressional reference cases. Accordingly, any rule ofthe Court of Claims hereinafter adopted by refer-ence in this Order which provides sanctions shall beread, construed, and applied in conformity with thestated limitation.

10. Admission to practice.-Any attorney repre-senting a claimant in a congressional reference casemay file (and appear as attorney of record in) theproceeding if he is a member of the bar of the UnitedStates Court of Claims or, if not, upon certificationto the clerk that he is a member in good standing ofthe bar of the highest court of any state in theUnion (or the District of Columbia). Any claimant(except a corporation) in a congressional referencecase may proceed prose.

11. Adoption by reference.-(a) Generally: Sub-ject to the exclusions hereinafter specifically listedin paragraph 14 of this Order, the Rules of the Courtof Claims shall be applied to congressional referencecases insofar as feasible. Generally, feasibility maybe determined by substitution of the words "chiefcommissioner," "trial commissioner," "review panel,"or combinations thereof, for the word "court" ac-cording to the context of the specific rule.

(b) Pleadings and motions; parties: Rules 31-42(Pleadings), except those portions of Rule 38 refer-ring to dispositive motions, Rules 51, 52(c), (d), and(e), 53, and 55 (Motions), and Rules 61-66 (Parties)

are adopted, and the foregoing test of feasibility shallbe applied. Counterclaims (Rules 40 and 102 (d) and(e)) may have no application, but the rules are re-tained for the time being in order to determine theposition of offsets. Third-party practice (Rule 41)likewise may have no application, but retention of itfor the time being cannot result immediately in pre-judice to anyone.

(c) Discovery; depositions; pretrial: Rules 71-92and 111-14 are adopted, as above indicated, subjectonly to the caveat stated in paragraph 9 of this Orderrelating to sanctions.

(dl Reference of cases: Congressional referencecases will be referred to trial commissioners in con-formity with paragraph 6 hereof, whereupon Rules13, 14, and 134 (pertaining to commissioners andtheir reports) will apply. On this basis, Rules 121-25(pertaining to incidents of trials before commission-ers) and Rules 131-33 (pertaining to trials) may befollowed, subject only to the limitations hereinabovenoted as to sanctions.

(e) Review of commissioners' actions: By substi-tuting "review panel" for "the chief judge or a judgein chambers" and "court" in Rule 12(d), and bysimilar substitution of "review panel" for "court"and "dec!sion" for "judgment" in Rules 53(b), 141-47, and 151-53, the review panels will take the placeof the court in requests for review, oral arguments,and decision.

12. Duplication.-The provisions of ChapterXVIII, Duplication and Copies (Rules 211-14), areadopted by reference, to the extent feasible, andsubject to the following specific qualifications: (a)No printing by ordinary typographic methods will berequired in congressional reference cases of submis-sions of counsel to a trial commissioner or reviewpanel. Duplication may be by clearly legible mimeo-graph, multilith, offset, or their equivalent. Wheretypewritten copies are specified as acceptable by therule, they must be clearly legible. (b) Where therules call for 30 copies, 20 will be accepted in lieuthereof.

13. Fees.-Filing fees as set by Rules 221 and 222will be required.

14. Rules deemed not pertinent.-The followingadditional rules of the Court of Claims shall have noapplication to congressional reference cases: Rule5 (Name and Seal of the Court); Rule 6(b) (AnnualTerm); Rule 7 (Sittings by the Court); Rules 52(a)and (b) and 54 IDispositive Motions); Rule 86 (Dep-ositions Pending Certiorari); Rule 101 (SummaryJudgment); Rule 102(b) and (c) (Involuntary Dis-missal); Rule 151(a) (2) (New Trials) ; Rule 154(Certiorari) ; Rules 161-68 (Wunderlich Act Re-views); Rules 171-83 (comp,i'ing Chapter XV, Ap-peals and Transfers to the Court of Claims); Rule 201(Admission to Practice); and Rules 223 and 224(Fees for Record on Certiorari and in Cases Appealedto the Court).

Page 2350App. D

Page 2351 TITLE 28, APPENDIX.-RULES OF UNITED STATES CUSTOMS COURT

RULES OF TiE UNITED STATES CUSTOMS COURT

(EFFECTIVE NOVEMBER 1. 1949)

Amended to December 31, 1969

Rule41-A. Assignment of subjects, tariff

United States.

Rule 3. Calendar calls, trial terms, an

(n) For each of the hearings soall the pending cases properly triabports shall be prepared by the clersuch hearings shall be mailed fronlater than 30 days prior to the dateexcept that in case of hearings heldWashington, Oregon, California,Utah, Arizona, New Mexico, ColeMontana, Alaska, and Hawaii, andsions, the notices shall be mailednot later than 35 days prior to the ding. Such notices shall contain tiand the collector's number if any,party or parties in whose name theand the subject matter thereof, anthe plaintiff or the attorney of recand address appear upon the papers

(p) All papers and exhibits requicases on such calendars, together witshall be sent from New York so asplace of hearing at least 21 daysof the hearing, except that in casein the States of Washington, OrNevada, Idaho, Utah, Arizona, New IWyoming, Montana, Alaska, andlying possessions, such papers andsent so as to arrive 30 days prior tohearings.

(t) Whenever a party desires orprosecute any case appealing uponcourt, he shall, within the times hereserve upon each of the parties aftnotice in writing setting forth that fing the following information: Calethe case appears, the docket subjecand title of the case. Such noticeby delivering a copy thereof to anparty where not represented by anmailing it to him at his last knoeither case the date of delivery or ofbe later than (1) fifteen days prior tcalendar in cases appearing on New(2) twenty days prior to the date ocases appearing upon calendarsYork, except (3) that in the case ofthe States of Washington, Oregonvada, Idaho, Utah, Arizona, New 1Wyoming, Montana, Alaska, andlying possessions, the date of deliveshall not be later than twenty-fivedate of the calendar. A copy oftogether with proQf of service therwith or mailed to the clerk of the

of such service of notice. Except upon consent ofscheduies of the the parties or their attorneys, or upon good cause

shown, cases not so noticed for trial will not be heardid notices of trial, unless, in the discretion of the court or a division• * thereof, it is deemed that the ends of justice so

set a calendar of require.le at each of said , • • • •k and notices of Role 6. Motions.n New York not (a) Rehearings. All motions for rehearings shallof such hearings, be in writing and be filed with the clerk of the court

Sin the States of at New York within 30 days from the entry of judg-Nevada, Idaho, meat in the cuse in which rehearing is requested.

)rado, Wyoming, Motions shall be filed in triplicate when made beforeoutlying posses- a division of the court. Such motion must clearlyatofr Nhew ork state the grounds upon which the moving party reliesae cor suhe- for the granting of such rehearing. If the groundshnmecourt number do not appeal of record, the motion must be sup-the name of the ported by an affidavit or affidavits setting forth incase is docketed, detail the facts upon which such motion is predi-d shall be sent to cated. A copy of such motion for rehearing shall beord whose name served by the moving party, either personally or by

mail, upon the opposite party or his attorney, and• * 15 days after such service shall be allowed the oppo-

red at the trial of site party or his attow ney in which to file and serveth said calendars, objections thereto. Oral argument shall not be

to arrive at the heard upon such motion except by leave of the court.prior to the date Any such motion or opposition thereto may be ac-of hearings held companied by briefs setting forth the facts and lawegon, California, upon which the parties rely. All such motions forlexico, Colorado, and all papers filed in opposition thereto, shall be

Hawaii and out- accompanied by a proposed order, such as each partyexhibits shall be thereto desires to have entered on the dispositionthe date of such of the motion, and shall be referred by the chief

judge to the judge or division of the court having• , jurisdiction of the subject matter.

intends to try or (d) All other motions. All other motions, except

a calendar of this those made orally in open court or at the trial of a

einafter specified, case, shall be in writing and when in writing shall be

ected thereby, a filed in the office of the clerk of the court at New York

act and contain- and they shall be entered in the order of their filing

ndar upon which In books to be kept for that purpose and such mo-

t, court number, tions shall, in due course, be referred to the judge or

s may be served division of the court having jurisdiction in the prem-

attorney or to a ises. Motions shall be filed in triplicate when made

attorney, or by before a division of the court. Copies of all such

'wn address. In motions shall be served upon the opposite party or his

mailing shall not attorney of record, either personally or by mail, and

to the date of the proof of such service shall accompany the filing of

York calendars; the motion papers. The opposing party, or his at-

f the calendar in torney of record, shall be allowed 15 days after serv-other than New ice of a copy of any motion upon him in which tohearings held in reply to the same: Provided, however, That in theCalifornia, Ne- case of motion papers filed in connection with cases

fexico, Colorado, tried at ports in the States of Washington, Oregon,Hawaii and out- California, Nevada, Idaho, Utah, Arizona, New Mex-cry or of mailing ice, Colorado, Wyoming, Montana, Alaska, and Ha-days prior to the wail and outlying possessions the court may grantthe said notice, a period of 10 days, in addition to the 15 days allowed.

eof, shall be filed in which to file objections thereto.court at the time

Rule 6

Rule 10 TITLE 28, APPENDIX.-RULES OF UNITED STATES CUSTOMS COURT Page 2352

Rule 10. Attorneys.

(b) An applicant for admission to practice at the

bar of the court may'be admitted before any judgeupon motion made by a member in good standing of

the bar of the court, and receive a certificate of ad-mission, following the filing of an application in aform prescribed by the court, when such applicant is

shown to have been admitted to practice law in the

United States courts or in the highest court of any

State, territory, the District of Columbia, or outlyingpossessions of the United States, and is a member in

good standing of the bar of one of such courts. Upon

being admitted each applicant shall subscribe to the

following oath:I - . .. ..-------------------------. do solemnly

swear (or affirm) that I will demean myself as anattorney and counselor-at-law of the UnitedStates Customs Court uprightly and according tolaw, and that I will support the Constitution of theUnited States. So help me God.

Upon subscribing thereto, the applicant shall pay

to the clerk the sum of $10.00, except that where theapplicant is an attorney representing the UnitedStates before this court, payment of such fee isnot required. The clerk, as trustee, shall depositsuch sums in a bank designated by the court andshall expend such moneys for the purchase of lawbooks, for library conveniences, and other court pur-poses, only as directed by the court.

Rule 21. Commissions-Letters rogatory-Depositions• * S * *

(h) Upon the return of the deposition the clerkshall open and file it forthwith in his office and givenotice thereof by mail to the parties or their respec-tive counsel. Any written motion to suppress suchdeposition shall be filed with the clerk of the courtwithin 15 days after the mailing of said notice: Pro-vided, That 10 additional days shall be allowed incases in which the party making such motion has itsoffice located in the State of Washington, Oregon,California, Nevada, Idaho, Utah, Arizona, New Mex-ico, Colorado, Wyoming, Montana, Alaska, or Ha-waii, or an outlying possession. Such motion tosuppress may also be made orally at the time of trial.If not so made, such motion to suppress shall bedeemed waived.

Rule 31. Applications for review, assignments oferrors, and briefs.

(c) Within 30 days after the date of said noticeof certification, unless specially excused therefromby the court, the appellant or his counsel shall file abrief, serving one copy thereof on appellee or hiscounsel, and within 15 days thereafter the party soserved shall file a brief, serving one copy thereof onthe opposing party or his counsel, and both parties

shall, at the time of serving the opposing party or hiscounsel, file four copies of said brief with the clerkof the court: Provided, That if the case originates inthe State of Washington, Oregon, California, Nevada,

Idaho, Utah, Arizona, New Mexico, Colorado, Wyo-ming, Montana, Alaska, or Hawaii, or beyond thelimits of the continental United States, there shallbe allowed 10 days' additional time for the servingand filing of said briefs.

Rule 41. Assignment of subjects.

* S

All protest cases Involving merchandise enteredunder the Tariff Act of 1930, or as modified, andfiled in the office of the clerk shall be assigned tothe several divisions of the court as follows:

Rule 41-A. Assignment of subjects, tariff schedules ofthe United States.

All protest cases involving merchandise enteredunder the Tariff Schedules of the United States,(TSUS), and filed in the office of the clerk shall beassigned to the several divisions of the court asfollows:

To FIRST DIVISION

Schedule 2.-All cases involving classification ofmerchandise under parts 1 through 5, inclusive.


Schedule 7.-All cases involving classification ofmerchandise under parts 1 through 14, inclusive,except items 798.00 and 798.50.

To SECOND DIVISION


Schedule 6.-All cases involving classification ofmerchandise under parts 3, 4, and 5.

To THIRD DIVISION



Schedule 6.-All cases involving classification ofmerchandise under parts 1, 2, and 6.

Schedule 8.-All cases involving classification ofmerchandise under parts 1 through 6, inclusive; allcases in which it is claimed the merchandise is en-titled to free entry under Schedule 8; cases in-volving solely clerical error and administrativequestions, except as hereinbefore otherwise pro-vided. The term "administrative question" as usedin this paragraph shall include the following:drawbacks, excluded merchandise, refusal to re-liquidate, American fisheries, countervailing duty,

currency value, entered value, fines, abandonment

of merchandise, breakage, capacity of bottles,

charges, merchandise not legally marked, rotten

fruit, American goods returned, household effects,

personal effects, shrinkage, shortage, ships' equip-

ment, weight and tare.

All cases involving classification of merchandise

under Schedule 9, or claimed to be free of dutyunder Schedule 9 shall be assigned to the division

in accordance with the item numbers specified in

the body of the description of the articles.