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124 C. Ols.

COURT OF CLAIMS, RULES OF-Continued

allegations have been heretofore adjudicated in
the United States District Court in criminal
actions. On two occasions the presiding judges
instructed the jury to return a verdict of not
guilty and on other occasions the indictments were

dismissed on motion. Id.
Courts Own 463.

United States C 130.
III. The Court of Claims takes judicial notice of the

proceedings in the United States District Court
of Massachusetts in criminal proceedings in which
the United States charged plaintiff with the com-
mission of the acts which defendant now alleges
in its counterclaim, since there is no dispute about

these proceedings. Id.
Courts Cow 464.

Evidence om 43 (4).
IV. Plaintiff has been fully exonerated in the United

States courts of the charges made in defendant's
counterclaim and it would be unjust to require
plaintiff again to defend itself in the United States

Court of Claims on the same allegations. Id.
Courts Cars 436.

United States Om 130.
V. The instant case was filed before the adoption of the
124 C. Cls.

present rules of the Court of Claims which now
require the filing of an answer. Under the rules
in effect when the instant case was filed, the Gov-
ernment's defense was set up by way of a general
traverse. Under this sort of pleading defendant,
in accordance with the old rules, is at liberty to
defend against plaintiff's claim in any way it may
choose to do so, including proof of fraud, but it is
not entitled to seek affirmative relief against

plaintiff on the allegations of the counterclaim. Id.

Courts C 436.
VI. On defendant's motions where it is contended, in

support thereof, that the United States Court of
Claims does not have the authority under the
statutes to issue a subpoena duces tecum against
an official or employee of the United States Gov-
ernment to compel the production of documents
or papers in the possession or control of the Gov-
ernment; and that even if such authority exists
the court should not in its discretion issue such
the Court of Claims, there is abundant authority
for the exercise of such power clearly expressed in
the several statutes applicable to the court, spe-
cifically Sections 1651, 2071, 2503 and 2507 of Title

COURT OF CLAIMS, RULES OF—Continued

subpoenas duces tecum against the Government; and
finally that the particular documents sought by
the subpoenas in the instant case bear no possible
relevance or materiality to the issues of the case;
it is held that Section 2507 of Title 28 of the revised
United States Code of 1948, providing for calls on
the Government departments for information, was
never intended to be the exclusive authority under
which the production of government documents
might be required by the United States Court of
Claims; that such authority exists under Sections
1651, 2071 and 2503 of Title 28, independently of
Section 2507; and further, that even if Section
2507 were exclusive in operation, it nevertheless
is sufficiently broad of itself to authorize the issu-
ance of subpoenas duces tecum to obtain documents
in the control of the Government. Kamen Soap

Products, 519.

Courts fon 464 (4).
VII. The writ of subpoena duces tecum has been considered

indispensable to the administration of justice. Id.

Witnesses O 16.
VIII. The authority of the Court of Claims to issue the

writ of subpoena duces tecum may be implied from

the very creation of the court by Congress. Id.

Courts from 464 (4).
IX. Quite apart from the matter of the implied powers of

28, United States Code. Id.
Courts em 464 (4).
X. There is no assertion by the defendant in its instant

motions that documents in its possession are
immune from subpoena duces tecum solely by rea-
son of the fact that defendant is the United
States. The sovereign immunity of the Govern-
ment from suit was waived in the very acts of
Congress establishing the Court of Claims and
conferring upon it jurisdiction to determine
claims against the United States. Nor is there
any assertion of privilege against disclosure, nor
any contention that the court lacks authority to
order production of documents in possession of

124 C. Cls.

COURT OF CLAIMS, RULES OF-Continued

the defendant. It is the defendant's sole conten-
tion that the Court of Claims is without authority
to obtain such documents by subpoena duces

tecum. Id.

Courts Om 464 (4).
XI. It is the Government's contention that Congress

intended Section 2507 to be the exclusive source of
authority for the production of Government
records and that Section 2503 cannot be construed
to mean that both subpoenas ad testificandum and
subpoenas duces tecum are available not only
against private persons but also against officers
and employees of the Government, and further
that plaintiff must proceed by motion for call
under Rule 26 (b) of the Court of Claims. The
Government's contention is not sustained.

Id.
Courts fm 464 (4).
XII. It is held that if it had been intended by Congress,

in the Acts waiving sovereign immunity from
suit, to exempt the United States, which is
always the defendant in the Court of Claims,
from the subpoena process for the production of
documents, such intention would have been made

clearly manifest in the statutes. Id.

Courts Om 464 (4).
XIII. The pertinent provisions of Section 2503, Title 28,

are a consolidation of Sections 269 and 276, 28
U. S. C., 1946 edition, and had their origin in
section 3 of the Act of February 24, 1855, 10 Stat.
612, and the Act of February 24, 1925, 43 Stat.
964. Section 11 of the Act of February 24, 1855,

was the forerunner of Section 2507, Title 28. Id.

Courts C 464 (4).
XIV. It is held that the 1855 Act establishing the Court

of Claims evidenced the recognition by Congress
of power in the Court to issue subpoenas duces
tecum requiring the production of Government
documents. Such power was analogous to that
of the District Courts of the United States, and
as far as the taking of testimony by a commis-
sioner of the Court of Claims was concerned the
power was regulated by the same provisions appli-

cable to similar practice in the District Courts. Id.
Courts fm 464 (4).

124 C. Cls.

COURT OF CLAIMS, RULES OF–Continued

XV. There is no indication in the 1855 Act that officials

or employees of the United States were to be
immune from the service of subpoenas, or that
the use of the term "subpoenas" did not contem-
plate subpoenas duces tecum as well as ad testifi-

candum. Id.

Courts 464 (4).
XVI. In the enactment of the 1855 Act Congress was

aware of the subpoena provisions of the Act of
January 24, 1827, 4 Stat. 199, which differentiated
between subpoenas ad testificandum and duces
tecum. Section 3 of the 1855 Act creating the

Court of Claims made no such differentiation. Id.

Courts am 464 (4).
XVII. Section 11 of the 1855 Act, as reenacted in Section

2507 of the 1948 Title 28, cannot be construed as
interposing any obstacle to the exercise of the
power of the Court of Claims under Section 3 of
the 1855 Act and under the Act of January 24,

1827, to issue subpoenas duces tecum. Id.

Courts om 464 (4).
XVIII. In the Act of February 24, 1925, 43 Stat. 964,

providing for the appointment of commissioners
by the Court of Claims and defining their duties
and powers, no differentiation was made between
subpoenas ad testificandum and duces tecum. The
Act of 1925, together with the provisions first
enacted as Section 3 of the 1855 Act, formed the

basis of Section 2503 of the present Title 28. Id.

Courts m 464 (4).
XIX. Quite apart from Section 2503, it is held that there

is ample statutory authority for the Court of
Claims to require the production of Government
documents by subpoena duces tecum. 28 U. S. C.
1651 (a) authorizes the Supreme Court and all
courts established by Act of Congress to issue
"all writs necessary or appropriate in and of their
respective jurisdictions agreeable to the uses and
principles of law.” It is held that this section is
applicable to the Court of Claims, since the Court
of Claims is one "established by an Act of Con-
gress.” The statute in the broadest and most
positive terms sets forth the authority of the Court

of Claims to issue compulsory process. Id.
Courts em 464 (4).

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COURT OF CLAIMS, RULES OF-Continued

XX. Section 2071 of Title 28 which authorizes each court

established pursuant to Act of Congress to pre-
scribe rules for the conduct of its business, pro-
vided such rules are consistent with Acts of Con-
gress and with rules prescribed by the Supreme
Court, confers upon the Court of Claims the rule-
making power which is as broad as the power of
the Supreme Court, under Section 2072, to pro-
mulgate the Federal Rules of Civil Procedure for
the District Courts, subject to the limitations
upon the Court of Claims set forth in Section

2071. Id.

Courts Con 78.
XXI. The subpoena rule of the Court of Claims, Rule 44,

is patterned on the subpoena provisions of the
Federal Rules of Civil Procedure, Rule 45, pro-
mulgated by the Supreme Court, and Rule 44 is
not inconsistent with the relevant acts of Con-

gress, Sections 1651, 2503 and 2507. Id.

Courts Oma 464 (4).
XXII. In many cases the District Courts have concurrent

jurisdiction with the Court of Claims, Section 1346.
The Government does not contend that it is im.
mune from subpoenas duces tecum in such cases

in the District Courts. Id.

Courts om 464 (4).
XXIII. The defendant's contention is not sustained that plain-

tiff must proceed, if at all, by a motion for call
under Rule 26 (b). A motion for call is by no means
the exclusive method by which he authority of
Section 2507 may be exercised. The authority
of Section 2507 may be exercised not only in modi-
fying the motion procedure of Rule 26 (b), but
also in providing alternative methods whereby
Government documents may be obtained, provided
that the qualifying provisions of Section 2507 are
observed; that the material sought is deemed
necessary and its disclosure is not injurious to the

public interest. Id.

Courts Om 464 (4).
XXIV. In the instant case there has been no finding or

assertion by the head of the department, as re-
quired by Section 2501, and no suggestion by
counsel, that disclosure of the desired documents

would be injurious to the public interest. Id.
Courts em 464 (4).

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