Court of Claims insofar as feasible." Accordingly, the Rules of the Court of Claims are adopted by reference, to the extent feasible, and subject in some instances to stated modifications and specific exclusions herein stated.

Upon the filing of a petition, the chief commissioner by order will refer the case to a trial commissioner. He will also designate a review panel of three commissioners of the court to sit in appeallate review of the trial commissioner's decision in the case. He will designate one of the review panel members as presiding commissioner of the panel. The decision of the review panel, consisting of findings of fact and conclusions, when submitted to the chief commissioner by filing thereof with the clerk, shall be transmitted by the chief commissioner to the appropriate House of Congress. The chief commissioner will entertain no appeals or requests for review of any rulings or actions by a trial commissioner or a review panel. General Orders, as in the present instance, will emanate from the chief commissioner. Specific orders will also be issued by him in the reference of cases to trial commissioners and in the designation of review panels. Otherwise, orders in specific cases will emanate from the trial commissioners and the review panels.

8. Subpoenas.-Every subpoena (authorized by Title 28 U.S.C. § 2509 (b)) shall be captioned as above and issued by the trial commissioner to whom the case is referred. Subpoenas requiring travel of more than 100 miles to place of trial must have attached thereto an order of approval by the chief commissioner.

11. Adoption by reference.-(a) Generally: Subject to the exclusions hereinafter specifically listed in paragraph 14 of this Order, the Rules of the Court of Claims shall be applied to congressional reference cases insofar as feasible. Generally, feasibility may be determined by substitution of the words "chief commissioner," "trial commissioner," "review panel," or combinations thereof, for the word "court" according to the context of the specific rule.

(b) Pleadings and motions; parties: Rules 31-42 (Pleadings), except those portions of Rule 38 referring 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 shall be applied. Counterclaims (Rules 40 and 102 (d) and (e)) may have no application, but the rules are retained in order to determine the position of offsets. Third-party practice (Rule 41) likewise may have no application, but retention of it cannot result immediately in prejudice to anyone.

12. Duplication.-The provisions of Chapter XVIII, Duplication and Copies (Rules 211-14), are adopted by reference, to the extent feasible, and subject to the following specific qualifications: (a) No printing by ordinary typographic methods will be required in congressional reference cases of submissions of counsel to a trial commissioner or review panel. Duplication may be by clearly legible multi

lith, offset, xerography or their equivalent. Where typewritten copies are specified as acceptable by the rule, they must be clearly legible. (b) Where the rules call for 30 copies, 20 will be accepted in lieu thereof.

14. Rules deemed not pertinent.-The following additional rules of the Court of Claims shall have no application to congressional reference cases: Rule 5 (Name and Seal of the Court); Rule 6(b) (Annual Term); Rule 7 (Sittings by the Court); Rules 52 (a) and (b) and 54 (Dispositive Motions); Rule 86 (Depositions Pending Certiorari; Rule 101 (Summary Judgment); Rule 102 (b) and (c) (Involuntary Dismissal); Rule 123 (Subpoenas); Rule 151 (a) (2) (New Trials); Rule 154 (Certiorari); Rules 161-68 (Wunderlich Act Reviews); Rules 171-83 (comprising Chapter XV, Appeals 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 Appealed to the Court).

103 (f) of the Renegotiation Act (50 U.S.C. APP. § 1213 (f), less any tax credit applicable thereto under Section 1481 of the Internal Revenue Code of 1954, with interest thereon as required by law, or if said principal, in the event that said proposed proceeding in the United States Court of Claims is not timely filed, or after filing is dismissed or otherwise concluded without a determination by order of the said court as to the amount of excessive profits, shall well and truly pay the amount of excessive profits to be eliminated under the order of the Renegotiation Board, less any tax credit applicable thereto under Section 1481 of the Internal Revenue Code of 1954, with interest thereon as required by law, then this obligation shall be void; otherwise it shall be and remain in full force and effect and the surety shall be bound unto the United States for the payment of the amount due under the determination of excessive profits of the Renegotiation Board or the United States Court of Claims. (Corporate seal)

KNOW ALL MEN BY THESE PRESENTS: That is (are) held and firmly bound unto the Renegotiation Board and/or the United States in the sum of ($______) Dollars to be paid to the Renegotiation Board and/or the United States, for the payment of which, well and bind(s) truly to be made, the said

himself (herself, itself, or themselves) and his (her, its, or their) successors and assigns, firmly by these presents.

SIGNED, sealed, and dated this

NOW, THEREFORE, the condition of this obligation is such that if the above-named

shall well and truly pay the amount of profits determined by the United States Court of Claims by order to be excessive, after adjustment on account of taxes measured by income, other than Federal taxes, under Section 103 (f) of the Renegotiation Act (50 U.S.C. APP. § 1213 (f), less any tax credit applicable thereto under Section 1481 of the Internal Revenue Code of 1954, with interest thereon as required by law, or if the above-named

in the event that said proposed case in the United States Court of Claims is not timely filed, or after filing is dismissed or otherwise concluded without a determination by order of the said court as to the amount of excessive profits, shall well and truly pay the amount of excessive profits to be eliminated under the order of the Board, less any tax credit under Section 1481 of the Internal Revenue Code of 1954, with interest thereon as required by law, then this obligation shall be void; otherwise it shall be and remain in full force and effect.

The above-bounded obligator(s), in order the more fully to secure the Renegotiation Board and/or the United States in the payment of the aforementioned sum, hereby pledge(s) as security therefor marketable public securities of the United States in a sum equal at their par value to the aforementioned sum, to wit: ($______) Dollars, which said marketable public securities are numbered serially and are in the denominations and amounts, and are otherwise more particularly described as follows:

which said marketable public securities are being herewith deposited with the Clerk of the United States Court of Claims and his receipt taken therefor.

Contemporaneously herewith, the undersigned has also executed and delivered an irrevocable power of attorney and agreement in favor of the Clerk of the United States Court of Claims, authorizing and empowering him, as such attorney, to collect or sell or transfer or assign the above-described marketable public securities so deposited, or any part thereof, in case of any default in the performance of any of the above-named conditions or stipulations.

day of

Secretary

WHEREAS, the Renegotiation Board by its order determined that the above-named realized excessive profits from contracts and subcontracts subject to renegotiation, during the fiscal year ended in the amount of $______; and

----

WHEREAS, the above-named

has (have) filed or is (are) about to file a petition in the United States Court of Claims for redetermination of the amount of the aforesaid excessive profits:

20-347 0-74-vol. 2- -5

Title

III. POWER OF ATTORNEY AND AGREEMENT BY CORPORATION

The following is the form of power of attorney and agreement by a corporation to be filed under Rule 26(d):

POWER OF ATTORNEY AND AGREEMENT BY CORPORATION

KNOW ALL MEN BY THESE PRESENTS: That a corporation duly incorporated under the laws of the State of

Such marketable public securities having been deposited by it, pursuant to the Act of July 30, 1947, c. 390, 61 Stat. 646, as security for the faithful performance of any and all of the conditions or stipulations of a certain obligation entered into by it with (here enter "the Renegotiation Board and/or the United States") under date of

which is hereby made a part thereof, the undersigned agrees that, in case of any default in the performance of any of the conditions and stipulations of such undertaking, its said attorney shall have full power to collect said marketable public securities or any part thereof without notice, at public or private sale, or to transfer or assign to another for the purpose of effecting either public or private sale, free from any equity of redemption and without appraisement or valuation, notice and right to redeem being waived, and the proceeds of such sale or collection, in whole or in part, to be applied to the satisfaction of any damages, demands, or deficiency arising by reason of such default, as may be deemed best, and the undersigned further agrees that the authority herein granted is irrevocable.

And said corporation hereby for itself, its successors and assigns, ratifies and confirms whatever its said attorney shall do by virtue of these presents. In witness whereof, the

the

Such marketable public securites having been deposited by me (us) pursuant to the Act of July 30, 1947, c. 390, 61 Stat. 646, as security for the faithful performance of any and all of the conditions or stipulations of a certain obligation entered into by me (us) with (here enter "the Renegotiation Board and/or the United States") under date of

which is hereby made a part thereof, I (we) agree that, in case of any default in the performance of any of the conditions and stipulations of such undertaking, my (our) said attorney shall have full power to collect said marketable public securities or any part thereof, or to sell, assign, and transfer said marketable public securities or any part thereof without notice, at public or private sale, or to transfer or assign to another for the purpose of effecting either public or private sale, free from any equity of redemption and without appraisement or valuation, notice and right to redeem being waived, and the proceeds of such sale or collection, in whole or in part, to be applied to the satisfaction of any damages, demands, or deficiency arising by reason of such default, as may be deemed best, and I (we) further agree that the authority herein granted is irrevocable.

And for myself (ourselves), my (our several) administrators, executors, and assigns, I (we) hereby ratify and confirm whatever my (our) said attorney shall do by virtue of these presents.

In witness whereof, I (we) hereinabove named have executed this instrument and affixed my (our) seal this ______ day of

19__.

[SEAL]

Before me, the undersigned, a notary public within and for the said county and State, personally appeared (name of obligor), and acknowledged the execution of the foregoing power of attorney.

Witness my hand and notarial seal this

day

(1) Except as provided in Rules 14.6(e) and 14.8 (e), when, by these rules or by a notice given thereunder or by order of the court, an act is required or allowed to be done at or within a specified time, the court may upon motion, for good cause shown, order the period extended.

(2) Every motion for extension of time must set forth therein the specific number of additional days requested, the date to which the extension is to run, the extent to which the time for the performance of the particular act has been previously extended, and the reason or reasons upon which the motion for extension is based, and shall be filed no later than 5 days prior to the expiration of the period allowed for the performance of the act to which the motion relates (including any previous extension of time). An objection or response thereto shall be filed within 5 days after service of such motion. The foregoing requirement as to filing may be waived by the court upon a showing, in a separate motion for leave to file out of time, that the delay in filing was the result of excusable neglect or circumstances beyond the control of the party.

(3) No disposition shall be made until the court acts upon the motion for extension of time.

(4) If the motion for an extension of time is denied and less than 5 days remain of the time to perform the act, or the time to perform the act has expired, the act may be performed within 5 days after the court enters the order denying the extension of time.

(c) Additional time after service by mail.-Whenever a party has the right or obligation to do some act or take some proceeding within a prescribed period after the service of a pleading, motion, or

Page 1157

other paper upon him, and the service is made by mail, 5 days shall be added to the prescribed period.

RULE 4.4 PLEADINGS

(a) Filing of complaint and answer.—A plaintiff who desires to try or otherwise prosecute an action shall serve upon the opposite party and file with the court a complaint to which an answer shall be filed. There shall be a reply to an alternative claim or an affirmative defense contained in an answer. No other pleading shall be allowed, except that the court may order a reply to an answer.

*

RULE 4.6 CONTENT OF Answer

(d) Alternative claims or affirmative defenses.If the defendant desires to make an alternative claim or set forth an affirmative defense in its answer, such alternative claim or affirmative defense shall be designated as such and set forth in separately numbered paragraphs.

RULE 4.7 Defenses and OBJECTIONS: WHEN AND HOW PRESENTED

(b) Defenses: how presented.-The following defenses may be made by a motion to dismiss: (1) that plaintiff has no standing in the matter; (2) lack of jurisdiction of the subject matter; (3) failure to perform conditions precedent; and (4) failure to state a claim upon which relief may be granted. A motion making any of these defenses may be made before answer.

(c) Preliminary hearings.-Any party may move before trial for a separate hearing and determination of the defenses enumerated (1), (2), (3), and (4) in paragraph (b) of this rule.

RULE 4.12 MOTION PRACTICE

(c) Time to respond.

(1) Except as provided in Rules 3.6(b), 14.6(e) and 14.8(e), an objection or response to a contested motion shall be filed within 15 days after service of such motion, except that an objection or response to a dispositive motion, i.e., a motion to dismiss, a motion for judgment on the pleadings, and a motion for summary judgment, shall be filed within 30 days after service of such motion, and the moving party shall have 15 days from the date of service of the objections or response to file a reply.

RULE 6.1 GENERAL PROVISIONS GOVERNING DISCOVERY

*

(b) Scope of discovery.—Unless otherwise ordered by the court in accordance with these rules, the scope of discovery is as follows:

(3) By means of written interrogatories, pursuant to Rule 6.3, a party may require any other party to identify each person whom the other party expects to call as an expert witness at the trial, and to state the subject matter on which the expert is expected to testify.

RULE 9.1 NOTICE OF TRIAL

(c) Time for service.-A notice of trial shall be served at least 30 days prior to the requested date of trial.

(e) Designation by court.-The court shall designate the place or places and date or dates for trial. The court shall give to the parties at least 15 days notice of the place and date for trial.

RULE 10.3 CONSOLIDATION; JOINT TRIALS; SEVERANCE

The court may, upon the motion of a party or on its own motion, make such orders concerning proceedings in any action as may tend to avoid unnecessary expense or delay, including, but not limited to;

(a) Consolidation. When actions involving a common question of law or fact are pending before the court, and the parties are the same, the court may order consolidation of the actions or any claims therein.

RULE 14.3 ACCESS TO AND WITHDRAWAL OF PAPERS (a) Custody and control.-All papers filed with or transmitted to the court shall be retained in the office of the clerk of the court, under his custody and control, except:

(3) when the chief judge so directs, the clerk shall transmit relevant papers in any action defined in Rule 3.1 to an appropriate customs officer on request of the attorney of record for a party, or an individual not represented by an attorney, for good cause shown in such request. Notice of such request shall be given to all other parties.

RULE 14.6 RESERVE FILE

(c) Dismissal for lack of prosecution.-An action which is not removed from the reserve file within a period of 2 years shall be dismissed for lack of prosecution, and in the absence of the filing of a motion under subpart (e) of this rule, the clerk shall enter an order of dismissal without further direction of the court. The applicable 2-year period shall begin to run from the last day of the month in

which the action is commenced, and shall end on the last day of the 24th month thereafter.

(e) Motion for extension of time.-For good cause shown, the court may, upon motion, order an extension of the time, beyond the applicable 2-year period, within which an action may remain in the reserve file. Any motion for extension of time shall be filed with the clerk not later than 15 days before the expiration of the period of time. An objection or response thereto shall be filed within 10 days after service of such motion. No order of dismissal shall be entered under Rule 14.6 (c) until the court has acted on the motion. If the motion for extension of time is denied and less than 10 days remain, or the time has expired, for removing said actions from the reserve file pursuant to subsection (b) of this rule, then the action shall continue to remain in the reserve file for 10 days after the court enters the order denying the extension of time.

RULE 14.7 SUSPENSION PROCEDURE

(a) Suspension of actions.-An action may be suspended pending the final determination of another action (hereinafter referred to as a test case) if it involves an issue of fact or a question of law which is the same as the issue of fact or question of law involved in such test case. A party to any action who desires to have any action considered as a test case may, after issue has been joined in the test case, serve and file a motion stating the reasons therefor. For purposes of this rule, an action may be considered as a test case when an order to that effect is issued by the court after a motion has been served and filed pursuant to this rule or after trial has been commenced or the action submitted to the court for decision. The trial of an action commences when, in open court, the first witness is sworn or evidence is admitted.

RULE 14.8 SUSPENSION DISPOSITION FILE

(c) Dismissal for lack of prosecution.-An action which is not removed from the suspension disposition file within a fixed period of time shall be dismissed for lack of prosecution, and in the absence of the filing of a motion under subpart (e) of this rule the clerk shall enter an order of dismissal without further direction of the court. The period of time, not to exceed 18 months, within which an action may remain in the suspension disposition file shall be fixed by the judge to whom the action has been assigned, or by the judge who decided the action under which the actions transferred to the suspension disposition file were suspended.

(e) Motion for extension of time.-For good cause shown, the court may, upon motion, order an extension of time beyond the applicable fixed period of time within which an action may remain in the suspension disposition file. A motion for extension of time shall be filed with the clerk not later than 15 days before the expiration of the period of time. An objection or response thereto shall be filed within