If trial has been to a judge or jury and the award or verdict materially exceeds the government's testimony, and there is a valid basis for a motion for a new trial:
- Within ten days after entry of judgment, file a motion for a new trial setting forth with particularity all grounds for the motion.
- Prepare and file a brief on the motion and arrange for a hearing thereon.
If the trial was held before a commission, resulting in an award which materially exceeds the government's testimony, and the report of the commission is inadequate for judicial review and/or the commission's findings are "clearly erroneous":
- Prepare objections to the report and findings of the commission and serve upon the other parties within 10 days after being served with notice of the filing of the report (or within such additional time as the court may grant). (See Rules 71A(h) and 53(e)(2), Fed.R.Civ.P.) Rule 6(b), Fed.R.Civ.P., requires that objections be full and complete and state specifically the grounds therefor. The objections cannot be amended later to include additional grounds.
- A commission report is inadequate for judicial review, and thus objectionable, if it does not distinctly mark the path followed by the commissioners in reaching the amount of the award. United States v. Merz, 376 U.S. 192 (1964). An inadequate report does not permit the parties or a reviewing court to determine whether the findings are "clearly erroneous."
- A commission finding is "clearly erroneous" when based upon a substantial error in the proceedings, based upon a misapplication of the controlling law, unsupported by substantial evidence, or when contrary to the clear weight of all the evidence. E.g., United States v. Waymire, 202 F.2d 550, 553-554 (10th Cir.1953). See also United States v. Gypsum Co., 333 U.S. 364, 395 (1948).
- If objections are filed, prepare and file a brief in support thereof, and arrange for a hearing. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Rule 6(d), Fed.R.Civ.P.
If the motion for new trial is granted or the objections to the award are sustained:
- Send one certified and one plain copy of the order of the court to the Department;
- Proceed with a new trial or other action directed by the court as expeditiously as possible;
- Advise the Department of the results.
[cited in JM 5-15.562]