IV. PARTIES
(a) Real Party in Interest. Every action shall
be prosecuted in the name of the real party in
interest. An executor, administrator, guardian,
bailee, trustee of an express trust, a party with
whom or in whose name a contract has been made
for the benefit of another, or a party authorized by
statute may sue in that person's own name without
joining the party for whose benefit the action is
brought. 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
substitution 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.
(b) Capacity to Sue or Be Sued. The capacity
of an individual, other than one acting in a
representative capacity, to sue or be sued shall be
determined by the law of the individual's domicile.
The capacity of a corporation to sue or be sued
shall be determined by the law under which it was
organized. In all other cases capacity to sue or be
sued shall be determined by the law of the
applicable state, except (1) that a partnership or
other unincorporated association, which has no
capacity by the law of its state, may sue or be sued
in its common name for the purpose of enforcing
for or against it a substantive right existing under
the Constitution or laws of the United States, and (2) that the capacity of a receiver appointed by a
court of the United States to sue or be sued in a
court of the United States is governed by Title 28,
U.S.C., Sections 754 and 959(a).
(c) Infants or Incompetent Persons.
Whenever an infant or incompetent person has a
representative, such as a general guardian,
committee, conservator, or other like fiduciary, the
representative may sue or defend on behalf of the
infant or incompetent person. An infant or
incompetent person who does not have a duly
appointed representative may sue by a next friend
or by a guardian ad litem. The court shall appoint
a guardian ad litem for an infant or incompetent
person not otherwise represented in an action or
shall make such other order as it deems proper for
the protection of the infant or incompetent person.
(As revised and reissued May 1, 2002.)
Rules Committee Note 2002 Revision
RCFC 17 has been modified in minor respects
in order to achieve closer conformity with FRCP
17. A difference between the court’s rule and the
corresponding FRCP occurs in subdivision (b).
Subdivision (b) of the FRCP, subtitled “Capacity to
Sue or Be Sued,” provides generally that in those
cases for which no rule of decision is provided,
“capacity to sue or be sued shall be determined by
the law of the state in which the district court is
held.” In recognition of this court’s nationwide
jurisdiction, the quoted language was rewritten by
substituting “by the law of the applicable state” for
“by the law of the state in which the district court
is held.”
(a) Joinder of Claims. A party asserting a
claim to relief as an original claim or counterclaim,
may join, either as independent or as alternate
claims, as many claims as the party has against an
opposing party. A third party may join, to the
extent permitted by law, as many claims as the
party has against the opposing party.
(b) Joinder of Remedies. Whenever a claim
is one heretofore cognizable only after another
claim has been prosecuted to a conclusion, the two
claims may be joined in a single action; but the court shall grant relief in that action only in
accordance with the relative substantive rights of
the parties.
(As revised and reissued May 1, 2002.)
Rules Committee Note 2002 Revision
The final sentence added to subdivision (a)
was intended to recognize both the right of a third
party to assert a claim and the limitations on that
right as set forth in 41 U.S.C. § 114 and applicable
case law.
(a) Persons to be Joined if Feasible. A
person who is subject to service of process and
whose joinder will not deprive the court of
jurisdiction over the subject matter of the action
shall be joined as a party in the action if (1) in the
person's absence complete relief cannot be
accorded among those already parties, or (2) the
person claims an interest relating to the subject of
the action and is so situated that the disposition of
the action in the person's absence may (i) as a
practical matter impair or impede the person's
ability to protect that interest or (ii) leave any of
the persons already parties subject to a substantial
risk of incurring double, multiple, or otherwise
inconsistent obligations by reason of the claimed
interest. If the person has not been so joined, the
court shall order that the person be made a party.
If the person should join as a plaintiff but refuses to
do so, the person may be made an involuntary
plaintiff.
(b) Determination by Court Whenever
Joinder Not Feasible. If a person as described in
subdivision (a)(1)–(2) hereof cannot be made a
party, the court shall determine 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 considered by the
court include: first, to what extent a judgment
rendered in the person's absence might be
prejudicial to the person or those already parties;
second, the extent to which, by protective
provisions in the judgment, by the shaping of relief, avoided; third, whether a judgment rendered in the
person's absence will be adequate; fourth, whether
the plaintiff will have an adequate remedy if the
action is dismissed 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
prescribed in subdivision (a)(1)–(2) hereof who are
not joined, and the reasons why they are not joined.
(d) Exception of Class Actions. This rule is
subject to the provisions of RCFC 23.
(As revised and reissued May 1, 2002.)
Rules Committee Note 2002 Revision
Reference to RCFC 14 was deleted from
subdivision (a) and other minor changes have been
made in order to more closely conform to FRCP
19. Some differences, however, were
retained—the most significant being the deletion of
the last sentence of FRCP 19(a) from this court’s
rule. The last sentence addresses objections to
venue raised by a joined party. Such objections
would not be assertable in this court.
(a) Permissive Joinder. All persons may join
in one action as plaintiffs if they assert any right to
relief jointly, severally, or in the alternative in
respect of or arising out of the same transaction,
occurrence, or series of transactions or occurrences
and if any question of law or fact common to all
these persons will arise in the action. A plaintiff
need not be interested in obtaining all the relief
demanded. Judgment may be given for one or
more of the plaintiffs according to their respective
rights to relief.
(b) Separate Trials. The court may make
such orders as will prevent a party from being
embarrassed, delayed, or put to expense by the
inclusion of a party against whom the party asserts
no claim and who asserts no claim against the
party, and may order separate trials or make other
orders to prevent delay or prejudice.
(As revised and reissued May 1, 2002.)
Rules Committee Note 2002 Revision
The authority previously contained in RCFC
20(a)(1)–(2), permitting unrestricted joinder of
additional plaintiffs to a pending multi-party
action, proved cumbersome in practice and an
impediment to sound case management. The
joinder of additional plaintiffs should proceed by
appropriate motion under RCFC 15. Accordingly,
RCFC 20 was modified so as to more closely
parallel the text of the corresponding FRCP.
Misjoinder of parties is not ground for
dismissal of an action. Parties may be dropped or
added by order of the court on motion of any party
or of its own initiative at any stage of the action
and on such terms as are just. Any claim against a
party may be severed and proceeded with
separately.
(As revised and reissued May 1, 2002.)
Rules Committee Note 2002 Revision
The last sentence of the former rule, “To add
plaintiffs, see RCFC 20(a)(1)–(2),” was eliminated
to more closely conform the rule to FRCP 21
Rules Committee Note 2002 Revision
The interpleader practice permitted under
FRCP 22 is, for the most part, incompatible with
the jurisdiction exercisable by this court.
However, in those cases where the United States is
in the position of a stakeholder facing the risks of
double liability, RCFC 14 provides the means for
summoning a third party.
(a) Prerequisites to a Class Action. One or
more members of a class may sue as representative
parties on behalf of all only if (1) the class is so
numerous that joinder of all members is
impracticable, (2) there are questions of law or fact
common to the class, (3) the claims of the
representative parties are typical of the claims of the class, and (4) the representative parties will
fairly and adequately protect the interests of the
class.
(b) Class Actions Maintainable. An action
may be maintained as a class action if the
prerequisites of subdivision (a) are satisfied, and in
addition:
(1) the United States has acted or refused
to act on grounds generally applicable to the
class; and
(2) the court finds that the questions of
law or fact common to the members of the
class predominate over any questions
affecting only individual members, and that a
class action is superior to other available
methods for the fair and efficient adjudication
of the controversy. The matters pertinent to
the findings include: (A) the interest of
members of the class in individually
controlling the prosecution of separate
actions; (B) the extent and nature of any
litigation concerning the controversy already
commenced by members of the class; and (C)
the difficulties likely to be encountered in the
management of a class action.
(c) Determining by Order Whether to
Certify a Class Action; Appointing Class
Counsel; Notice and Membership in Class;
Judgment; Multiple Classes and Subclasses.
(1)(A) When a person sues or is sued as
a representative of a class, the court
must—at an early practicable
time—determine by order whether to
certify the action as a class action.
(B) An order certifying a class
action must define the class and the
class claims, issues, or defenses, and
must appoint class counsel under
RCFC 23(g).
(C) An order under RCFC 23(c)(1)
may be altered or amended before final
judgment.
(2)(A) [Not used.]
(B) For any class certified under
RCFC 23(b), the court must direct to
class members the best notice
practicable under the circumstances including individual notice to all
members who can be identified through
reasonable effort. The notice must
concisely and clearly state in plain,
easily understood language:
• the nature of the action,
• the definition of the class
certified,
• the class claims, issues, or
defenses,
• that a class member may
enter an appearance through
counsel if the member so desires,
• that the court will include in
the class any member who
requests inclusion, stating when
and how members may elect to be
included, and
• the binding effect of a class
judgment on class members under
RCFC 23.
(3) The judgment in an action
maintained as a class action under
subdivision (b), whether or not favorable to
the class, shall include and specify or
describe those to whom the notice provided
in subdivision (c)(2) was directed, and
whom the court finds to be members of the
class.
(4) When appropriate (A) an action
may be brought or maintained as a class
action with respect to particular issues, or
(B) a class may be divided into subclasses
and each subclass treated as a class, and the
provisions of this rule shall then be
construed and 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
prescribing measures to prevent undue repetition or
complication in the presentation of evidence or
argument; (2) requiring, for the protection of the
members of the class or otherwise for the fair
conduct of the action, that notice be given in such
manner as the court may direct to some or all of the
members of any step in the action, or of the proposed extent of the judgment, or of the
opportunity of members to signify whether they
consider the representation fair and adequate, to
intervene and present claims or defenses, or
otherwise to come into the action; (3) imposing
conditions on the representative parties or on
intervenors; (4) requiring that the pleadings be
amended to eliminate therefrom allegations as to
representation of absent persons, and that the
action proceed accordingly; (5) dealing with
similar procedural matters. The orders may be
combined with an order under RCFC 16, and may
be altered or amended as may be desirable from
time to time.
(e) Settlement, Voluntary Dismissal, or
Compromise.
(1)(A) The court must approve any
settlement, voluntary dismissal, or
compromise of the claims, issues, or
defenses of a certified class.
(B) The court must direct notice in
a reasonable manner to all class members
who would be bound by a proposed
settlement, voluntary dismissal, or
compromise.
(C) The court may approve a
settlement, voluntary dismissal, or
compromise that would bind class
members only after a hearing and on
finding that the settlement, voluntary
dismissal, or compromise is fair,
reasonable, and adequate.
(2) The parties seeking approval of a
settlement, voluntary dismissal, or
compromise under RCFC 23(e)(1) must file a
statement identifying any agreement made in
connection with the proposed settlement,
voluntary dismissal, or compromise.
(3) [Not used.]
(4)(A) Any class member may object to
a proposed settlement, voluntary
dismissal, or compromise that requires
court approval under RCFC 23(e)(1)(A).
(B) An objection made under
RCFC 23(e)(4)(A) may be withdrawn
only with the court’s approval.
(f) Appeals. [Not used.]
(g) Class Counsel.
(1) Appointing Class Counsel. (A) Unless a statute provides
otherwise, a court that certifies a class
must appoint class counsel.
(B) An attorney appointed to serve
as class counsel must fairly and
adequately represent the interests of the
class.
(C) In appointing class counsel, the
court
(i) must consider:
• the work counsel has
done in identifying or
investigating potential claims
in the action,
• counsel’s experience in
handling class actions, other
complex litigation, and claims
of the type asserted in the
action,
• counsel’s knowledge of
the applicable law, and
• the resources counsel
will commit to representing the
class;
(ii) may consider any other
matter pertinent to counsel’s ability
to fairly and adequately represent
the interests of the class;
(iii) may direct potential class
counsel to provide information on
any subject pertinent to the
appointment and to propose terms
for attorney fees and nontaxable
costs; and
(iv) may make further orders in
connection with the appointment.
(2) Appointment Procedure.
(A) The court may designate interim
counsel to act on behalf of the putative
class before determining whether to
certify the action as a class action.
(B) When there is one applicant for
appointment as class counsel, the court
may appoint that applicant only if the
applicant is adequate under
RCFC 23(g)(1)(B) and (C). If more than
one adequate applicant seeks
appointment as class counsel, the court
must appoint the applicant best able to represent the interests of the class.
(C) The order appointing class
counsel may include provisions about the
award of attorney fees or nontaxable
costs under RCFC 23(h).
(h) Attorney Fees Award. In an action
certified as a class action, the court may award
reasonable attorney fees and nontaxable costs
authorized by law:
(1) Motion for Award of Attorney
Fees. [Not used.]
(2) Objections to Motion. [Not used.]
(3) Hearing and Findings. [Not used.]
(4) Reference to Special Master or
Magistrate Judge. [Not used.]
(As revised and reissued May 1, 2002; as amended
July 1, 2004.)
Rules Committee Notes
2002 Revision
RCFC 23 has been completely rewritten.
Although the court’s rule is modeled largely on the
comparable FRCP, there are significant differences
between the two rules. In the main, the court’s rule
adopts the criteria for certifying and maintaining a
class action as set forth in Quinault Allottee Ass’n
v. United States, 197 Ct. Cl. 134, 453 F.2d 1272
(1972).
Because the relief available in this court is
generally confined to individual money claims
against the United States, the situations justifying
the use of a class action are correspondingly
narrower than those addressed in FRCP 23. Thus,
the court’s rule does not accommodate, inter alia,
the factual situations redressable through
declaratory and injunctive relief contemplated
under FRCP 23(b)(1) and (b)(2).
Additionally, unlike the FRCP, the court’s
rule contemplates only opt-in class certifications,
not opt-out classes. The latter were viewed as
inappropriate here because of the need for
specificity in money judgments against the United
States, and the fact that the court’s injunctive
powers—the typical focus of an opt-out class—are
more limited than those of a district court.
Finally, the court’s rule does not contain a provision comparable to FRCP 23(f). That
subdivision, which provides that a “court of
appeals may in its discretion permit an appeal from
an order . . . granting or denying class
certification,” has its origin in 28 U.S.C. § 1292(e),
which authorizes the Supreme Court to promulgate
rules that provide for an appeal of an interlocutory
decision other than those set out in Section 1292.
Because no comparable statutory authority exists
for this court’s promulgation of a similar rule,
subdivision (f) has been omitted. It should be
noted, however, that the Court of Federal Claims
may certify questions to the Court of Appeals for
the Federal Circuit pursuant to 28 U.S.C.
§§ 1292(b), 1295.
2004 Amendment
In addition to the rule changes introduced in
2002, the text of the current rule also incorporates
the revisions to FRCP 23 effective December 1,
2003. These revisions, which appear as
subdivisions (c), (e), (g), and (h) of the rule, adopt
the text of the FRCP except where modification in
wording was necessary to accommodate the “optin”
character of this court’s class action practice.
In a derivative action brought by one or more
shareholders or members to enforce a right of a
corporation or of an unincorporated association,
the corporation or association having failed to
enforce a right which may properly be asserted by
it, the complaint shall be verified and shall allege
(1) that the plaintiff was a shareholder or member
at the time of the transaction of which the plaintiff
complains or that the plaintiff’s share or
membership thereafter devolved on the plaintiff by
operation of law, and (2) that the action is not a
collusive one to confer jurisdiction on this court
which it would not otherwise have. The complaint
shall also allege with particularity the efforts, if
any, made by the plaintiff to obtain the action the
plaintiff desires from the directors or comparable
authority and, if necessary, from the shareholders
or members, and the reasons for the plaintiff’s
failure to obtain the action or for not making the
effort. The derivative action may not be
maintained if it appears that the plaintiff does not
fairly and adequately represent the interests of the shareholders or members similarly situated in
enforcing the right of the corporation or
association. The action shall not be dismissed or
compromised without the approval of the court,
and notice of the proposed dismissal or
compromise shall be given to shareholders or
members in such manner as the court directs.
(As added May 1, 2002.)
Rules Committee Note 2002 Adoption
This is a new rule. This version of RCFC 23.1
is in conformity with the corresponding FRCP.
The Federal Circuit has ruled that under certain
circumstances, this court has jurisdiction to hear
shareholder derivative suits. First Hartford Corp.
Pension Plan & Trust v. United States, 194 F.3d
1279 (Fed. Cir. 1999). Cf. Branch v. United States,
69 F.3d 1571 (Fed. Cir. 1995); and California
Housing Sec., Inc. v. United States, 959 F.2d 955
(Fed. Cir. 1992).
Rules Committee Note 2002 Revision
This rule is procedurally unnecessary in light
of the opt-in class-action procedures of RCFC 23.
(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 intervene; or (2)
when the applicant claims an interest relating to the
property or transaction which is the subject of the
action and the applicant is so situated that the
disposition of the action may as a practical matter
impair or impede the applicant's ability to protect
that interest, unless the applicant's interest is
adequately represented by existing parties.
(b) Permissive Intervention. Upon timely
application anyone may be permitted to intervene
in an action: (1) when a statute of the United States
confers a conditional right to intervene; or (2)
when an applicant's claim or defense and the main
action have a question of law or fact in common. In exercising its discretion the court shall consider
whether the intervention will unduly delay or
prejudice the adjudication of the rights of the
original parties.
(c) Procedure. A person desiring to intervene
shall serve a motion to intervene upon the parties
as provided in RCFC 5. The motion shall state the
grounds therefor and shall be accompanied by a
pleading setting forth the claim or defense for
which intervention is sought. The same procedure
shall be followed when a statute of the United
States gives a right to intervene.
(As revised and reissued May 1, 2002.)
Rules Committee Note
2002 Revision
Minor changes have been made to subdivision
(c) of this rule in order to more closely conform to
FRCP 24.
(a) Death.
(1) If a party dies and the claim is not
thereby extinguished, the court may order
substitution of the proper parties. The motion
for substitution may be made by any party or
by the successors or representatives of the
deceased party and shall be served as provided
in RCFC 5. Unless the motion for
substitution is made not later than 90 days
after the death is suggested upon the record by
service of a statement of the fact of the death
as provided herein for the service of the
motion, the action shall be dismissed as to the
deceased party.
(2) In the event of the death of one or
more of the plaintiffs in an action in which the
right sought to be enforced survives only to
the surviving plaintiffs, the action does not
abate. The death shall be suggested upon the
record and the action shall proceed in favor of
or against the surviving parties.
(b) Incompetency. If a party becomes
incompetent, the court upon motion served as
provided in subdivision (a) of this rule may allow
the action to be continued by or against the party's
representative.
(c) Transfer of Interest. In case of any transfer of interest, the action may be continued by
or against the original party, unless the court upon
motion directs the person to whom the interest is
transferred to be substituted in the action or joined
with the original party. Service of the motion shall
be made as provided in subdivision (a) of this rule.
(d) Public Officers; Death or Separation
from Office. [Not used.]
(As revised and reissued May 1, 2002.)
Rules Committee Note
2002 Revision
RCFC 25 omits the text of subdivision (d) of
FRCP 25 which addresses the substitution of a
successor in an action naming a public officer who
dies or is separated from service while the action is
pending.