APPENDIX C
PROCEDURE IN COMMON CARRIER CASES
CONTENTS
I. Carrier's Request for Admission of Facts
(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 Carrier: 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 Carrier: Passengers.
II. Defendant's Response
III. Acceptance of Response; Pretrial; Judgment
IV. Cases Within Primary Jurisdiction of Interstate Commerce Commission
I. CARRIER'S REQUEST FOR ADMISSION OF FACTS
1. Time for Filing Request. In every suit filed by a common carrier for the recovery of freight and/or passenger transportation charges, the carrier shall, at the time the complaint is filed or within 30 days thereafter, file with the clerk a request for admission by the defendant of the genuineness of any relevant documents described in and exhibited with the request and of the truth of the material matters of fact relied on by the carrier for recovery in the action.
2. Form and Content of Request. The request shall conform to the following requirements:
(A) Duplication. The request, with accompanying schedules and documents, may be typewritten, or may be printed, or otherwise mechanically reproduced from a typewritten original, provided that all copies filed with the clerk shall be clearly legible and that the words and figures shown therein shall be in large enough type to be read without difficulty.
(B) Copies; Filing; Service. If the request accompanies the complaint, copies and service of such request shall be as provided in Rules 3(c) and 4. If the request is filed subsequent to the filing of the complaint, copies and service of such request shall be as provided in Rules 5, and 83, except that 5 copies shall be served on the defendant in lieu of a copy.
(C) Signature of Attorney. The request shall be signed by the attorney of record for the plaintiff.
(D) Numbered Paragraphs; Material Facts. The statements contained therein shall be properly separated and numbered and shall consist of specific statements of material facts which the plaintiff expects to prove as opposed to general allegations of the kind used in pleadings.
(E) Attachments. There shall be attached to the request copies of any contracts, letters, or other documents, excluding tariffs and other documents referred to in the schedules required by 2(G) and 2(I), which plaintiff proposes to offer in evidence, in order that the genuineness of such documents may be admitted by the defendant and the necessity of calling a witness to identify the same may be avoided.
(F) Nature of Dispute; Statement of Issues. The statement in the request shall be sufficiently explicit to show the nature of the dispute and the specific reason or reasons why the plaintiff believes it is entitled to recover higher rates or charges than those allowed by the Government. The word "dispute" as used in the preceding sentence, means the shipment or shipments with respect to which the General Accounting Office or other agency of the Government determined that the carrier's charges had been overpaid or refused to pay the carrier's supplemental bills covering such shipments, rather than subsequent shipments which are not in dispute except for the fact that the overpayments determined as to the shipments in dispute have been deducted from the amount of the carrier's bills covering such subsequent shipments. In order to show the nature of the dispute there shall be attached to or included in plaintiff's request a statement of the issues which, with respect to each group of the carrier's bills involving the same issue, shall consist of a brief narrative statement of such issue with a reference to (1) court decisions involving the same issue, or (2) the tariffs or other authority relied upon by plaintiff, and the tariffs or other authority which plaintiff believes defendant relied upon in making deductions for claimed overpayments to the carrier or in refusing to pay the carrier's supplemental bills for claimed undercharges.
(G) Schedule: Claim for Transportation of Property. Where the claim is for the recovery of charges for the transportation of property for the Government, there shall be attached to the request a detailed schedule, prepared by or under the supervision of the general auditor, comptroller, or other principal accounting officer of the carrier. The schedule shall contain the following factual information:
(1) List of Carrier's Bills in Dispute. The number of each of the carrier's bills for the shipments in dispute, as distinguished from the number of a subsequent bill from which the GSA made a deduction following its determination of an overpayment on the bill in dispute.
(2) Detail for Each Bill of Lading. For each bill of lading in dispute, covered by each bill referred to in (1), the following facts:
(a) the number and symbol of each bill of lading;
(b) the date of the shipment;
(c) the origin and the destination of the shipment;
(d) a description of the commodity or commodities shipped, including a description of the packing where this affects the rate;
(e) car number and initial;
(f) the weight of the shipment, including the minimum carload weight when greater than the actual weight;
(g) when the shipment in dispute consists of one or more carloads of mixed commodities, a description of the different commodities, and the respective weight thereof loaded in each car, including minimum carload weights where such weights affect the rates;
(h) the rates claimed for each article in the shipment and for any accessorial services;
(i) the total freight charges on each bill of lading;
(j) amounts refunded by carrier, if any, and the dates thereof;
(k) if the overpayment determined by GSA or other agency has been deducted from the carrier's subsequent bill or bills, the number of such subsequent bill or bills, the amount deducted, and the date thereof;
(l) the total amount paid the carrier;
(m) the balance due;
(n) a specific reference to the item or items in designated tariffs authorizing the charges claimed, including the classification rating if necessary, and authorization for any accessorial charges claimed; or to a §22 quotation;
(o) the Government file reference number as obtained from GSA notice of overcharge, the Certificate of Indebtedness, or other document issued by the GSA, or, in the event there is no GSA reference number, the name of the Government paying agency and bureau, the disbursing office voucher number, and the date of payment;
(p) if the shipment in dispute consists in whole or in part of a through transit movement, (1) the through assessable charges from the original point of shipment to the final destination, including a description of the commodity, the transited weight, the through rate, the tariff or special authority for the through rate used, and, if local tonnage is involved, the weight thereof, the points between which local tonnage moved, and the rates and charges assessed against such tonnage; (2) details of the net amounts paid to and beyond the transit station, including references to the "inbound" and "outbound" shipments by bill of lading number and symbol; date of shipment, origin and destination, weight rate, and the net amounts paid to the respective "inbound" and "outbound" carriers, naming them and identifying the bill numbers on which such payments were made; and (3) the balance due, i.e., the difference between the through assessable charges, including the charges on local tonnage, if any, and the respective net amounts paid on the inbound and outbound shipments; and
(q) a brief statement as to the basis for the claim or other brief statement which the carrier deems necessary to explain the peculiarities of the shipment.
(3) Computation for Typical Bill of Lading. Following the listing of the information herein required with respect to each group of carrier's bills involving the same issue or basis of freight charge computation, the carrier shall either (i) include in the schedule a computation of the freight charges for that bill of lading, setting forth the basis or formula used, and referring to the specific items in particular tariffs or other authority which it relied upon for that purpose, or (ii) attach a worksheet showing such computation and information with respect to each typical bill of lading.
(H) Certification and Signature of Carrier: Property. The schedule shall be certified by the general auditor, comptroller, or principal accounting officer of the carrier, as follows:
I, __________________, the ____________________
(Name) (Title)
________________, of the ______________________
(Name of Carrier)
______________________________________________ ,
do hereby certify that the above and foregoing schedule has been prepared from the books and records of said company for use in a suit in the United States Court of Federal Claims, entitled ____________ v. The United States, No. ____, and that to the best of my knowledge, information, and belief the matters contained therein are true and correct.
To certify which, witness my hand at ______________________ this ______ day of ____________, 19____.
______________________________________________________
(Signature of auditor, comptroller, or
principal accounting officer.)
(I) Schedule: Claim for Transportation of Passengers. Where the claim is for the recovery of charges for the transportation of passengers for account of the Government, there shall be attached to the request a schedule, prepared by or under the supervision of the general auditor, comptroller, or other principal accounting officer of the carrier. The schedule shall contain the following factual information:
(1) List of Carriers' Bills in Dispute. The number of each of the carrier's bills in dispute, as distinguished from the number of a subsequent bill from which the GSA made a deduction following its determination of an overpayment on the bill in dispute.
(2) Detail: Each Transportation Request or Warrant. For each transportation request or warrant in dispute, covered by each bill referred to in (1) the following facts:
(a) the symbol and number of each Government transportation request or warrant in dispute;
(b) the date of service;
(c) 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 assessable passenger charges;
(k) the amount paid, and by what Government office and where located;
(l) amounts refunded by carrier, if any, and the dates thereof, and the Government office to which refunded and where located;
(m) where an overpayment was determined by the Government and deducted from a carrier's subsequent bill, the number of such subsequent bill, the amount of the deduction, and the date thereof;
(n) the total amount paid, and by what Government office and where located;
(o) the balance due;
(p) the tariff reference and item or special rate authority;
(q) the Government file reference; and
(r) a brief statement as to the basis for the claim, including, where appropriate, a brief explanation showing the extent to which the ticket issued by the carrier was not used, and the value of the unused part of the ticket.
(J) Certification and Signature of Carrier: Passengers. The schedule covering the transportation of passengers shall be certified in the same manner as provided in (2)(H), except that where a request includes schedules pertaining to claims for both the transportation of passengers and freight, one certification shall suffice for all schedules.
3. Plaintiff's Noncompliance: Consequences. In the event a plaintiff in any action within the purview of this Appendix fails or refuses to comply with the provisions hereof, the judge may (1) refuse to allow it to support designated claims or prohibit it from introducing in evidence designated documents or items of testimony, or (2) take other appropriate action, which may include a dismissal of the complaint or any part thereof.
II. DEFENDANT'S RESPONSE
4. Time for Filing; Order. Promptly after the filing of the plaintiff's request, the judge to whom the case is assigned shall, by order filed with the clerk, fix a reasonable time within which the defendant shall file its response to the request. A copy of such order shall be served on the parties as provided in Rule 5.
5. Copies; Service; Signature. The defendant's response shall consist of an original and two copies to be filed with the clerk and with service to be made on plaintiff as provided in Rule 5. The response shall be signed by defendant's attorney of record and shall comply with the terms of 2(A).
6. Agreement; Modification; Denial. The defendant shall file such response within the time fixed by the order, agreeing to the separate items of fact, modifying the same in accordance with the facts known by the defendant, specifically denying the same, or setting forth in detail the reasons why it cannot truthfully admit or deny designated portions of the request.
7. Defendant's Statement of Issues. If defendant does not agree with plaintiff's statement of the issues, it shall attach to or include in the response its statement of the issues, which, with respect to each group of the carrier's bills involving the same issue, shall consist of a brief narrative statement of the issue, as defendant contends, with reference to (1) a court decision involving the same issue, or (2) the tariffs or other authority relied upon by defendant.
8. Verification of Carrier's Computations. If the defendant finds that the schedule attached to plaintiff's request, or any portion affecting the amount claimed, is incorrect on the basis of the tariffs, §22 quotations, or other authority relied on by plaintiff in its request, there shall be attached to the response a schedule prepared by the defendant, setting forth the facts and figures as to the amount of freight charges which defendant asserts would be due on each carrier's bill if the court holds that the tariffs or other authorities relied on by plaintiff in its request are applicable, and showing how the defendant arrived at any changes or corrections in the amounts claimed by plaintiff.
9. Schedule: Defendant's Basis for Applicable Charges. If the defendant claims that the tariffs, §22 quotations, or other authority relied on by plaintiff are inapplicable with respect to any of the carrier's bills listed in plaintiff's request, there shall be attached to the response a schedule prepared by the defendant, setting forth the facts and figures in detail as to the amount of freight or passenger charges defendant claims is due on each disputed carrier's bill and containing a specific reference to the item or items in designated tariffs, §22 quotations, or other authority relied on by defendant in support of its contention. The schedule shall also comply with the terms of 2(G)(3).
10. Failure To Deny or Respond Within Specified Time: Consequences. Except where the response details the reasons why the defendant cannot admit or deny a particular statement in the request, any fact not so modified or denied in the response shall be deemed admitted, and the failure of the defendant to file its response within the time specified by the judge shall be taken as an admission of all of the facts as set forth in the request.
11. Qualified Denial of Facts Available to Defendant: Consequences. Where the request sets forth any facts that are within the knowledge of the General Services Administration or of the department or agency of the defendant for which the transportation was performed-and these specifically include 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 procedure applies, the time for filing defendant's answer and any counterclaim asserted by it may, without regard to the provisions of RCFC 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. 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.
III. ACCEPTANCE OF RESPONSE; PRETRIAL; JUDGMENT
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 within 30 days an original typewritten and 2 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 complaint or any part thereof, or (2) segregating the carrier's bills in dispute from those not in controversy and fixing the amount that either party would be entitled to recover in the event of a decision in its favor, and/or (3) taking any other action that may aid in the prompt disposition of the suit.
15. Entry of Judgment. Where all material issues are disposed of through the filing by plaintiff of its acceptance of the amount shown to be due in defendant's response, or at a pretrial conference, or by the defendant's failure to file its response within the time fixed by the judge, judgment may be entered without further proceedings.
IV. CASES WITHIN PRIMARY JURISDICTION OF INTERSTATE COMMERCE COMMISSION
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 16.
19. Defendant's Response to Plaintiff's Motion for Referral. Defendant's response to plaintiff's motion shall conform to the requirements of 17.
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.
(As amended Dec. 4, 1992.)
[Interstate Commerce Commission abolished and functions of Commission transferred, except as otherwise provided in