[See main edition for text of (1) to (6)]

(7) If an appendix is used, there shall be, at the beginning of the brief itself, a table of contents or index listing the various items in the appendix, including the number and description of every exhibit which is being reproduced, together with the number of the page of the appendix at which the item begins.

[See main edition for text of (b) to (e)] Rule 147. Findings and judgment by the court

[See main edition for text of (a) to (c)] (d) Judgment in renegotiation and declaratory judgment cases. As used in these rules, the word "judgment" shall be deemed to include, but is not limited to, an order in a renegotiation case determining the amount, if any, of excessive profits, and a declaratory judgment pursuant to section 1507 of title 28, United States Code.

Rule 148. Final Judgment-Fees and Expenses

(a) Applications. (1) Applications for fees and expenses pursuant to the Equal Access to Justice Act (Pub. L. No. 96-481, Title II, Oct. 21, 1980, 28 U.S.C. § 2412) shall be filed with the clerk within 30 days after the entry by the court of a final judgment for the payment of money, or for the dismissal of the petition, or of a final order in an appeal under Chapter XV, or of a final judgment as defined in Rule 147(d). Such applications and supporting statements shall be under oath. Each item shall be separately stated and supported.

(2) Except applications in an appeal under Chapter XV, applications for fees and expenses shall be referred to the trial division for action pursuant to the provisions of Rule 13(b). When appropriate, the trial division may return any such application to the court without findings of fact or recommendation. The court may refer to the trial division for appropriate action any such application in an appeal under Chapter XV.

(b) Response and reply. Defendant shall have 30 days from the filing of an application pursuant to paragraph (a) of this rule to file a response, to which plaintiff may reply within 20 days.

(c) Proceedings. After the filing of an application, and response and reply (if any), the court or the trial judge will enter an order prescribing the procedure to be followed, either specially or pursuant to the rules of the court, or take such other action as may be deemed appropriate. A final order of the trial judge on such application shall be subject to review pursuant to Rule 54.

(d) Number of copies. There shall be filed an original and 6 copies of applications in appeals under Chapter XV and an original and 3 copies of applications in all other cases.

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 containing disputes clauses subject, potentially, to review, in whole or in part, under the terms of the Wunderlich Act (68 Stat. 81, 41 U.S.C. §§ 321-22), and are designed to supplement the other rules of the court, particularly Rules 31-57 (Chapters III and IV, Pleadings and Motions), Rule 101 (Summary Judgment) and Rule 144 (Content of Briefs). To the extent that a party is entitled to relief outside the Wunderlich Act, a trial de novo, if required, on issues of fact shall be held in conformity with appropriate rules in other chapters.

Rule 162. Pleadings

[See main edition for text of (a)]

(b) Sufficiency of petition. (1) A motion to dismiss a petition for alleged failure to comply with the provisions of paragraph (a) of this rule shall be passed upon by the trial judge, who may recommend that the motion be granted, in which event his action shall be subject to review under Rule 53(c).

[See main edition for text of (2), and (c)] Rule 166. Determination of Wunderlich Act cases

All motions under both Rules 163(a) and Rule 163(b) will hereafter be considered dispositive motions suspending the reference to the trial judge. However, in like manner to that provided in Rule 181, any party may suggest that the motion or motions be referred by the court to a trial judge, and the other party or parties may respond to that suggestion. The court will then determine whether to refer the motion or motions to a trial judge. Even if no such suggestion is submitted, the court may decide to refer the motion or motions to a trial judge. See Rule 54.

XV. APPEALS; TRANSFERS; AND

REFERENCES

Rule 171. Scope of rules

(a) Appeals covered. These rules govern procedure in appeals under the Civil Service Reform Act of 1978, the Contract Disputes Act of 1978, and any other appeals which may be specifically authorized by law as appeals.

(b) Rules not to affect jurisdiction. These rules shall not be construed to extend or limit the jurisdiction of the court as established by law.

(c) Other rules applicable. The rules in this chapter are designed to supplement other rules of this court; and to the extent such other rules are not inconsistent with any provision of this chapter, they remain applicable.

REFERENCES IN TEXT

The Civil Service Reform Act of 1978, referred to in subsec. (a), is Pub. L. 95-454, Oct. 13, 1978, 92 Stat. 1111. For complete classification of this Act to the Code, see Short Title note set out under section 1101 of Title 5, Government Organization and Employees, and Tables.

The Contracts Disputes Act of 1978, referred to in subsec. (a), is Pub. L. 95-563, Nov. 1, 1978, 92 Stat. 2383, which is classified principally to chapter 9 (§ 601 et seq.) of Title 41, Public Contracts. For complete classification of this Act to the Code, see Short Title note set out under section 601 of Title 41 and Tables.

Rule 172. Review of Board* orders and decisionsHow obtained

(a) Petition for review. (1) Review of an order or decision of a board shall be obtained by filing with the clerk of the court, within the time prescribed by law, an original and 3 copies of a petition for review. The petition shall specify the party or parties seeking review and shall designate the respondent and the order, decision, or part thereof, to be reviewed. Appendix F sets forth a suggested form of a petition for review.

(2) Where the review sought is that of a final order or decision by the Merit Systems Protection Board, the agency which took the action to which the board's final order or decision was directed shall be designated as the respondent.

(3) Where the review sought is that of a decision by an agency board of contract appeals, and the petitioner is not the United States, the United States shall be designated as the respondent. Where the United States is the petitioner, the other party or parties to the proceeding before the board shall be designated as the respondent or respondents.

(4) If two or more persons are entitled to petition the court for review of the same order and their interests are such to make joinder practicable, they may file a joint petition for review and may thereafter proceed as a single petition

er.

(5) Where the petition for review of the final decision of an agency board of contract appeals is filed by the United States pursuant to a referral by the head of an executive department or agency, it shall have attached a certificate evidencing approval by the Attorney General. (b) Service of petition. A copy of the petition for review shall be served by the clerk on the named respondent as provided for in Rule 22, and another copy shall be served on the board to whose decision the petition is directed. Except where the United States is the petitioner, a copy shall always be served on the United States in the manner set forth in Rule 22.

Rule 173. The record on review

(a) Composition of the record. The order or decision sought to be reviewed, the findings or report on which it is based, and the pleadings, evidence, and proceedings before the board shall constitute the record on review in proceedings to review the order or decision.

The term "board" when used in this chapter shall also include an arbitrator of grievances under a collective bargaining agreement under the Civil Service Reform Act of 1978, when review of the arbitrator's decision is sought pursuant to the authority of 5 U.S.C. § 7121(f).

(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 may at any time supply the omission or correct the misstatement by stipulation, or the court may at any time direct that the omission or misstatement be corrected and, if necessary, that a supplemental record be prepared and filed.

Rule 174. Filing of the record

(a) Board to file; time for filing; notice of filing. The board shall file the record with the clerk of the court within 40 days after the filing of the petition for review, unless a different time is provided by the statute authorizing review. The court may shorten or extend the time above prescribed. The clerk shall give notice to all parties of the date on which the record is filed.

(b) Filing-what constitutes. (1) The board may file the entire record or such parts thereof as the parties may designate by stipulation filed with the board. The original papers in the board proceeding or certified copies thereof may be filed.

(2) Instead of filing the record or designated parts thereof, the board may file a certified list of all documents, transcripts of testimony, exhibits, and other material comprising the record, or a list of such parts thereof as the parties may designate, adequately describing each, and the filing of the certified list shall constitute filing of the record.

(3) The parties may stipulate that neither the record nor a certified list be filed with the court. The stipulation shall be filed with the clerk of the court, with a copy to the board, and the date of its filing shall be deemed the date on which the record is filed.

(4) If a certified list is filed, or if the parties designate only parts of the record for filing or stipulate that neither the record nor a certified list be filed, the board shall retain the record or parts thereof. The board shall also retain documents of unusual bulk or weight and physical exhibits other than documents. Upon request to the board by the court or a party, the record or any part thereof thus retained shall be transmitted to the court notwithstanding any prior stipulation. All parts of the record retained by the board shall be a part of the record on review for all purposes.

Rule 175. Appendix to the briefs

(a) Contents. Each party shall reproduce in an appendix to his brief those parts of the record which he desires to call to the court's particular attention. The petitioner shall include in his appendix a copy of the board judgment, order or decision in question, as well as a copy of the board's separate findings (if any). The respondent's brief need not duplicate any material already contained in the petitioner's appendix. Each party's brief shall also contain at the beginning thereof a table of contents or index for the appendix, listing the various items in the appendix, including the number and description of every exhibit which is being

reproduced, together with the number of the page of the appendix at which the item begins. When matter contained in the reporter's transcript of proceedings is set out in the appendix, the page of the transcript at which such matter may be found shall be indicated in brackets immediately before the matter is set out. Omissions in the text of papers or of the transcript must be indicated by asterisks. Immaterial formal matters (captions, subscriptions, acknowledgments, etc.) shall be omitted. A question and its answer may be contained in a single paragraph.

(b) Format. The appendix may be physically attached to the brief or contained in a separate volume.

(c) Joint appendix. By agreement among all parties who file or intend to file briefs, there may be filed, at the same time as petitioner's brief is filed, a joint appendix conforming to Rule 175(a) and covering (without repetition) all those parts of the record which any of such parties desires to call to the court's particular attention.

(d) Waiver. Where permission has been granted for the petitioner to proceed in forma pauperis, or by order in any other case, the court may dispense with the requirement of an appendix and permit an appeal or petition to be heard on the original record, with such copies of the record, or relevant parts thereof, as the court may require.

(e) Appendix on Review. Where an appeal has been referred to a trial judge pursuant to Rules 14(a), 54(a), and 181, and a party requests review by the court of the recommendation of the trial judge, each party may rely on the appendix filed with the original brief or briefs in lieu of repeating it in a subsequent brief, and the clerk will provide the necessary copies of such appendices to the court.

Rule 176. Filing of briefs

(a) Time for filing briefs. The petitioner shall file his brief within 45 days after the date on which the record is filed. The respondent shall file his brief within 60 days after service of the brief of the petitioner. The petitioner may file a reply brief within 20 days after service of the brief of the respondent. The court may shorten the periods prescribed above for filing briefs in individual cases.

(b) Consequence of failure to file briefs. If a petitioner fails to file his brief within the time prescribed by this rule, or within the time as extended, a respondent may move for dismissal of the appeal. If a respondent fails to file his brief, he will not be heard at oral argument except by permission of the court.

Rule 177. Form, contents, and copies of briefs, the appendix, and other papers; references to record in briefs

The content, form, and number of copies of briefs, appendices, and other papers shall be in accordance with the requirements of Rules 144, 212, 213 and 214(h). References in the briefs to parts of the record reproduced in an appendix shall be to the pages of the appendix at which those parts appear.

Rule 178. Motion for summary affirmance or to dismiss the appeal

In lieu of including such grounds in its brief, at any time prior to the filing of such brief, the respondent may move for summary affirmance or to dismiss the appeal (as the case may be) on the grounds (but only on such grounds) of lack of jurisdiction of the subject matter or person; the bar of the statute of limitations; failure to exhaust administrative remedies; res judicata; or payment, accord and satisfaction, or release, subsequent to the administrative decision; but such motion shall not suspend or delay the proceedings. However, the respondent may accompany such motion by a motion to suspend the proceedings or to extend the time for the filing of respondent's brief. A motion for summary affirmance or to dismiss an appeal shall be treated as a dispositive motion.

Rule 179. Offsets and counterclaims

(a) Raising of offset or counterclaim. In any case in which an offset or counterclaim is permitted by law, a respondent may file such offset or counterclaim prior to or contemporaneously with its opposing brief. A claim which either matured or was acquired by respondent after serving its brief may, with leave of court, be presented as a counterclaim by supplemental filing. When a respondent fails to set up an offset or counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, it may also, by leave of court, set up the offset or counterclaim by supplemental filing.

(b) Response to offset or counterclaim. Petitioner shall have 40 days within which to file a reply to such offset or counterclaim.

(c) Form of offset or counterclaim. Such offset or counterclaim and reply shall conform to the requirements of Rule 21(c).

(d) Action by court on offset or counterclaim. The court may take action on the offset or counterclaim as the circumstances require, including: dismissal; decision thereon together with or separate from the decision on the appeal; referral to a trial judge for appropriate action; or remand to the board of contract appeals for decision.

Rule 180. Remand; additional evidence

(a) Remand to Board or Agency. If in connection with an appeal the court remands a case to an agency or board, except where an offset or counterclaim has been filed and except where the remand order provides otherwise, the appeal shall be removed from the docket and any appeal thereafter shall be treated as a new appeal. Where pursuant to the remand order the case is retained on the docket during the pendency of the remand proceedings, the case shall be assigned to a trial judge, and insofar as pertinent the provisions of Rule 149 shall be applicable.

(b) Additional evidence by court. If pursuant to the governing statute the decision of the court is that it should retain the appeal and take such additional evidence as may be necessary for final disposition of the case, the court

will refer the case to a trial judge, whose authority and responsibility with respect thereto shall be as set forth in Rule 13.

Rule 181. Referral to trial division

On or before the completion of the briefing on an appeal, a party may suggest the appropriateness and give his reasons for a referral to a trial judge by the court of the appeal. Such a suggestion shall be made by letter to the clerk (original plus 7 copies). A party so suggesting shall promptly mail or otherwise provide a copy thereof to all other parties. Such other parties shall have 10 days in which to submit a letter to the clerk (original plus 7 copies) responding to the suggestion. The court will then determine whether to refer the appeal to a trial judge. Even if no suggestion is submitted, the court may decide to refer the appeal to a trial judge. See Rules 14(a) and 54(a). After such a referral the procedures to be followed shall be the same as those set forth in Rule 54(b). Rule 182. Appeals from district courts

(a) When and how taken. When an appeal to this court is permitted by law from a final judgment in a district court in a civil action based on the Federal Tort Claims Act, the procedure for taking such appeal shall be the same as provided in the Federal Rules of Appellate Procedure, except that no bond will be required in such appeal.

(b) Proceedings after appeal docketed. After the appeal has been docketed in this court, all proceedings thereafter in the case shall be as provided in the foregoing Rules of this Chapter XV.

REFERENCES IN TEXT

The Federal Tort Claims Act, referred to in subsec. (a), is classified generally to section 1346(b) and chapter 171 (§ 2671 et seq.) of Title 28, Judiciary and Judicial Procedure.

The Federal Rules of Appellate Procedure, referred to in subsec. (a), are set out in the Appendix to this title.

Rule 183. Transfers from district courts

(a) Filing and fee. When the transfer of a case from a district court to this court is permitted by law, the case shall be filed in this court upon the receipt by the clerk of a certified copy of the record made in the district court, including the order of that court granting the transfer. The clerk shall serve a notice of this filing on the parties as provided in Rule 23. Where all required fees in the district court are shown to have been paid, no filing fee will be required.

(b) Petition; Copies. Sixteen copies of the complaint filed in the district court shall be filed with the clerk of this court within 20 days after the filing required 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 as provided in Rule

22(a).

(c) Procedure. After the filing and service as provided for in paragraph (b) of this rule, all further proceedings shall be in accordance with

the rules prescribed for cases filed in this court in the first instance.

Rule 184. 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 the Comptroller General, the clerk shall serve a notice, as provided in Rule 23, on each person whose name and address are shown by the papers transmitted and who appears to be interested in the subject matter of the reference, which 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 after such service within which to appear and assert his claim by filing a petition in accordance with Rule 21. At the same time, the clerk shall forward a copy of each such notice to the Attorney General.

(b) Procedure after notice. After the service of notice upon the interested person or persons, all further proceedings for the disposition of the case shall be in accordance with the rules prescribed herein for other cases.

(c) Failure of party to appear. If no interested plaintiff appears and files his petition within the time specified in the notice served by the clerk, the case shall be submitted to the court upon the papers filed and upon such evidence, if any, as may be produced by the Attorney General.

XVII. ATTORNEYS

Rule 201. Admission to practice

[See main edition for text of (a) to (c)]

(d) Fee for admission. (1) Assessment. Unless the applicant is an attorney representing the United States before this court, an admission fee of $15 shall be paid in cash or by check payable to the clerk of the United States Court of Claims.

[See main edition for text of (2); (e)] Rule 204. Officers and employees of the court as attorneys

[See main edition for text of (a)] [(b) Deleted]

XVIII. DUPLICATION; COPIES

Rule 214. Specific papers; duplication; number of copies

[See main edition for text of (a) and (b)] (c) Procedural motions. (1) Duplication. Any procedural motion (as defined in Rule 52(c)), any objection or response thereto, any brief, memorandum of law, or affidavit included therein or attached thereto (as required by Rule 51(c)), and any request for review pursuant to Rule 53(c) of an order entered pursuant to Rule 53(b)(1), may be typewritten in conformity with Rule 213(c), unless the party elects to have it printed or mimeographed. (See Rule 212(a) and Rule 213(a) and (b) for the re

quirements of printing, and Rule 213(c) for the requirements of mimeographing.)

(2) Number of copies. (i) General: Except as provided in subdivisions (ii), (iii), and (iv) of this subparagraph (2), an original and 3 copies of each paper described in the preceding paragraph shall be filed.

(ii) Request for review; motion for judgment. An original and 11 copies shall be filed of a request for review pursuant to Rule 53(c), or of a motion for judgment pursuant 54(b)(3)(iii) and 141(b).

to

Rules

[See main edition for text of (iii) and (iv)] (d) Dispositive motions.

[See main edition for text of (1)]

(2) Number of copies. An original and 15 copies of each paper described in the preceding subparagraph (1) of this paragraph (d) shall be filed, plus 2 additional copies for each additional adverse party, as defined in Rule 211(b).

[See main edition for text of (e) to (i)]
XIX. FEES

Rule 224. Fees in cases appealed to this court

A filing fee of $10 shall be collected by the clerk for any appeal (other than an appeal by the United States) filed in the court.

APPENDIX B

PROCEDURES FOR PROCESSING COMPLAINTS OF JUDICIAL MISCONDUCT PURSUANT TO SECTION 372(c) OF TITLE 28, UNITED STATES CODE

1. Any person alleging that a judge, or trial judge of this court, has engaged in conduct prejudicial to the effective and expeditious administration of the business of the court, or alleging that such a judge or trial judge is unable to discharge all the duties of office by reason of mental or physical disability, may file with the clerk of this court a written complaint containing a brief statement of the facts constituting such conduct.

2. Upon receipt of a complaint filed under paragraph 1, the clerk shall promptly transmit such complaint to the chief judge of this court, or, if the conduct complained of is that of the chief judge, to that judge in regular active service next senior in date of commission (hereafter, for purposes of these procedures only, included in the term "chief judge”). The clerk shall simultaneously transmit a copy of the complaint to the judge or trial judge whose conduct is the subject of the complaint.

3. (a) After expeditiously reviewing a complaint, the chief judge by written order stating his reasons, may

(1) dismiss the complaint, if he finds it to be (i) not in conformity with paragraph 1, (ii) directly related to the merits of a decision or procedural ruling, or (iii) frivolous; or

(2) conclude the proceeding if he finds that appropriate corrective action has been taken. (b) The chief judge shall transmit copies of his written order to the complainant and to the judge or trial judge whose conduct is the subject of the complaint.

4. If the chief judge does not enter an order under paragraph 3, such judge shall promptly

(a) appoint himself and two judges of this court to a special committee to investigate the facts and allegations contained in the complaint;

(b) certify the complaint and any other documents pertaining thereto to each member of such committee; and

(c) provide written notice to the complainant and the judge or trial judge whose conduct is the subject of the complaint of the action taken under this paragraph.

5. Each committee appointed under paragraph 4 shall conduct an investigation as extensive as it considers necessary, and shall expeditiously file a comprehensive written report thereon with the chief judge for the court. Such report shall present both the findings of the investigation and the committee's recommendations for necessary and appropriate

action by the court.

6. Upon receipt of a report filed under paragraph 5, the court

(a) may conduct any additional investigation which it considers to be necessary;

(b) shall take such action as is appropriate to assure the effective and expeditious administration of the business of the court, including, but not limited to, any of the following actions:

(1) certifying disability of a judge appointed to hold office during good behavior whose conduct is the subject of the complaint, pursuant to the procedures and standards provided under subsection (b) of section 372 of title 28, United States Code; (2) requesting that any such judge appointed to hold office during good behavior voluntarily retire, with the provision that the length of service requirements under section 371 of title 28, United States Code shall not apply;

(3) ordering that, on a temporary basis for a time certain, no further cases be assigned to any judge, or trial judge, whose conduct is the subject of a complaint;

(4) censuring or reprimanding such judge, or trial judge, by means of private communication;

(5) censuring or reprimanding such judge, or trial judge, by means of public announcement; or

(6) ordering such other action as it considers appropriate under the circumstances, except that in no circumstances may the court order removal from office of any judge appointed to hold office during good behavior; and

(c) shall immediately provide written notice to the complainant and to such judge, or trial judge, of the action taken under this paragraph.

7. (a) In addition to the authority granted under paragraph 6, the court may, in its discretion, refer any complaint involving a judge of the court, together with the record of any associated proceedings and its recommendations for