but are not limited to the facts and figures which plaintiff, by this order, is directed to include in its schedules-a response stating that defendant cannot truthfully admit or deny such facts, or a denial based on a lack of knowledge by defendant's attorney of record, shall be deemed an admission thereof: Provided, That such a response shall not be deemed an admission if accompanied by the sworn statement of the official in charge of the records that a search has been made for the necessary documents or information and that the documents or information cannot be found. 12. Relation to Pleadings; Time for Filing Answer or Counterclaim In all cases to which this order applies, the time for filing defendant's answer and any counterclaim asserted by it may, without regard to the provisions of Rules 12 and 13, be contemporaneous with the date fixed by the judge for filing defendant's response to plaintiff's request; Provided, however, That the period of limitations provided by 49 U.S.C. § 16(3)(d) within which the defendant may file a counterclaim is not extended by any rule set forth in this Appendix or by any order pursuant thereto. At its option, the defendant may include the response in its answer or counterclaim, which pleadings, nevertheless, shall otherwise comply with the rules applicable to them. REFERENCES IN TEXT 49 U.S.C. § 16(3)(d), referred to in text, was repealed and reenacted as part of section 11706(d) of Title 49, Transportation, by Pub. L. 95-473, § 4(b), Oct. 13, 1978, 92 Stat. 1467, the first section of which enacted subtitle IV (§ 10101 et seq.) of Title 49. III. ACCEPTANCE OF RESPONSE; 13. Plaintiff's Acceptance of Response If a plaintiff is willing to accept the amount shown to be due it in defendant's response, or, where a counterclaim has been filed, is willing to accept the net amount shown to be due plaintiff in the response after deducting the amount of defendant's counterclaim, plaintiff's attorney of record shall sign and file with the clerk an original typewritten and 2 carbon copies of a statement entitled "Plaintiff's Acceptance of the Amount Defendant Admits Is Due," stating therein that the response shows that a specified sum is due plaintiff or, where a counterclaim has been filed, that the response shows that the net amount of the counterclaim is a specified sum, and that plaintiff consents to the entry of judgment in the amount specified in favor of plaintiff in full settlement and satisfaction of all claims asserted in the complaint and request for admission of facts. 14. Pretrial Conference; Fixing Amount of Recovery When plaintiff does not file an acceptance of the amount shown to be due in the response, a pretrial conference shall be held for the purpose of (1) resolving all issues and recording an agreement for the entry of judgment or for a dismissal of the petition or any part thereof, or (2) segregating the carrier's bills in dispute from those not in controversy and fixing the 16. Referral to Interstate Commerce Commission: Defendant's Motion For In any suit subject to the terms of this order, if defendant contends, whether on the basis of the freight charge computations used by plaintiff or on the basis of the freight charge computations used by defendant, that any of the carrier's bills listed in the request raise issues within the primary jurisdiction of the Interstate Commerce Commission and intends to move the court to refer such issues to that agency, defendant shall file the motion with the clerk at the time fixed for the filing of its response under this order. The motion shall contain: (1) an identification of the carrier's bills involved unless all the bills in suit are included in the motion; (2) a description of the commodities shipped and a statement respecting any other factors which are pertinent to the issues covered by the motion; (3) a reference to the applicable tariffs and a copy of the pertinent provisions thereof; (4) a precise statement of the issue or issues to be referred; and (5) a statement as to whether the Interstate Commerce Commission has construed the cited tariffs in prior decisions or has clarified the facts underlying them, citing the pertinent decisions, if any. 17. Plaintiff's Response to Defendant's Motion for Referral Plaintiff's response to the motion shall be filed within 30 days after service of the motion, and shall state whether plaintiff concurs in the motion. If plaintiff contends that the Interstate Commerce Commission has construed the tariffs referred to in defendant's motion or has clarified the factors underlying them in previous decisions, the response shall cite such decision. 18. Referral to Interstate Commerce Commission: Plaintiff's Motion For If plaintiff, in any case subject to the terms of this order, contends that any of the carrier's bills in suit raise issues within the primary jurisdiction of the Interstate Commerce Commission and intends to move the court to refer such issues to that agency, plaintiff's motion shall be filed not later than 30 days from the date defendant's response is filed and shall conform to the requirements of paragraph 16 hereof. 19. Defendant's Response to Plaintiff's Motion for Referral Defendant's response to plaintiff's motion shall conform to the requirements of paragraph 17 above. 20. Effect of Filing Referral Motion The trial of any case subject to the terms of this order in which a motion for referral is filed shall be deferred until final action on the motion. 21. Failure To File Referral Motion in Specified Time: Consequences The failure of either party to file, within the time prescribed above, a motion requesting the court to refer a pending case or any part thereof to the Interstate Commerce Commission may be deemed good cause for denying any such motion thereafter filed. Upon referral of a bill to the chief judge by either House of the Congress, the clerk shall docket the reference and serve a notice, as provided in Rule 5, on each person whose name and address are shown by the papers transmitted and who appears to have an interest in the subject matter of the reference. The notice shall set forth the filing of the reference and state that the person notified appears to have an interest therein and that such person shall have 90 days within which to file a complaint. The clerk shall forward a copy of each such notice to the Attorney General. 3. Complaint Any person served with notice who desires to assert a claim may do so by filing a complaint in accordance with Rules 8 and 9 (or a preliminary complaint under Rule 27(a)) of the rules of the Claims Court, except that the complaint shall be captioned as provided in paragraph 6. 4. Failure of party to appear If no interested person files a complaint within the time specified in the notice served by the clerk, the case may be reported upon the papers filed and upon such evidence, if any, as may be produced by the Attorney General. 5. Hearing officer; review panel Upon the filing of a complaint, the chief judge by order will designate a judge of the court to serve as hearing officer and a panel of three judges to serve as a reviewing body. One of the review panel members will be designated by the chief judge as presiding officer of the panel. 6. Captions All pleadings, motions, and any other papers of the parties, and all subpoenas, orders and reports of a hearing officer and a review panel, shall be captioned as follows: CONGRESSIONAL REFERENCE To The UNITED STATES CLAIMS COURT Congressional Reference No. 7. Subpoenas Each hearing officer and each review panel shall have authority to do and perform any acts which may be necessary or proper for the efficient performance of their duties, including the power of subpoena and the power to administer oaths and affirmations. Subpoenas requiring travel of more than 100 miles to place of trial must have attached thereto an order of approval by the chief judge. 8. Hearing officer report The hearing officer shall conduct such proceedings and utilize such rules of the United States Claims Court as may be required to determine the facts, including facts relating to delay or laches, facts bearing upon the question whether the bar of any statute of limitation should be removed, or facts claimed to excuse the claimant for not having resorted to any established legal remedy. The hearing officer shall find the facts specially. The hearing officer's findings shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the hearing officer to judge the credibility of witnesses. The hearing officer shall append to the findings of fact conclusions sufficient to inform Congress whether the demand is a legal or equitable claim or a gratuity, and the amount, if any, legally or equitably due from the United States to the claimant. The report shall be filed with the clerk, and served by the clerk on the parties. 9. Acceptance or exceptions Within 30 days after service of the report, each party shall file either, (a) a statement of exceptions to particular findings and conclusions of the hearing officer, or (b) a statement of acceptance of such findings and conclusions. 10. Review panel consideration and report The findings and conclusions of the hearing officer, together with the record of the case, shall be considered by the review panel. The presiding officer by order shall establish a schedule for the parties to file briefs on exceptions to the hearing officer's findings and conclusions and requests for oral argument before the panel. The chief judge will entertain no appeals or requests for review of any rulings or actions by a hearing officer or a review panel. No case shall be returned to the hearing officer unless so ordered by the review panel. On the basis of the entire record, the panel, by majority vote, shall adopt or modify the findings or the conclusions of the hearing officer and shall file its report with the clerk, for service on the parties. 11. Rehearing Within 10 days after service of the report of the review panel, any party may file a motion for rehearing to alter or amend the report. The motion shall state with particularity any contention of law or fact which the movant believes has been overlooked or misapprehended, and shall contain argument in support thereof. Oral argument in support of the motion shall not be permitted. No response to a motion for rehearing is required, but will be considered if filed within 10 days from the date the motion for rehearing is filed. No time extension shall be allowed for filing such a response. If the motion for rehearing is granted, the review panel shall take such further action as in its discretion may be required by the circumstances of the particular case. 12. Transmittal to Congress When all proceedings are concluded, the report of the review panel shall be transmitted by the chief judge to the appropriate House of Congress. 13. Admission to practice Any attorney representing a claimant in a congressional reference case may file (and appear as attorney of record in) the proceeding if he is a member of the bar of the United States Claims Court or, if not, upon certification to the clerk that he is a member in good standing of the bar of the highest court of any state in the Union (or the District of Columbia). Any claimant (except a corporation) in a congressional reference case may proceed pro se. 14. Filing fees Filing fees as set by Rule 77(k) are required in congressional reference cases. |