244 F.3d 1356 (Fed. Cir. 2001)
Monarch Assurance P.L.C. and THOMAS PATRICK DENTON TAYLOR, Plaintiffs-Appellants,v.UNITED STATES, Defendant-Appellee.
99-5052
DECIDED: April 5, 2001

Appealed from: United States Court of Federal Claims, Judge Eric BrugginkUnited States Court of Appeals for the Federal CircuitRaphael S. Moore, Law Office of Raphael Moore, of Davis, California, argued for plaintiffs-appellants.
Thomas D. Dinackus, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief was David M. Cohen, Director. Of counsel on the brief was John L. McPherson, Assistant General Counsel, Office of General Counsel, Central Intelligence Agency.
Before BRYSON, Circuit Judge, SMITH* and PLAGER,** Senior Circuit Judges.
PER CURIAM.


1
In this contract action, plaintiffs allege that they lent a secret agent of  the United States money to support a clandestine CIA operation, and have  not been paid for their efforts. The United States denies responsibility,  and invokes the state secrets privilege to avoid responding to plaintiffs'  demands for discovery. The United States Court of Federal Claims concluded  that, even if the individual alleged to be a secret agent was in fact such  an agent, there was an insufficient showing that the agent had authority to  contract on behalf of the United States. The court granted summary judgment  for the United States. Monarch Assurance P.L.C. v. United States, 42 Fed.  Cl. 258 (1998).


2
On appeal, plaintiffs argue that the trial court improperly applied the  state secrets privilege, abused its discretion in curtailing discovery, and  erred by granting summary judgment for the United States because sufficient  evidence had been submitted to support a prima facie finding of actual  authority to contract.

I. Background

3
The facts of the case, or at least the allegations made by plaintiffs, the  responses by the United States (hereafter "Government") thereto, and the  trial court's findings, read rather more like a plot for a made-for-TV  movie than a typical contract dispute heard in the federal courts.  Nevertheless, this is the story the record reveals.


4
Plaintiffs are Thomas Patrick Denton Taylor, a resident of the Isle of Man  and the Chief Executive and Managing Director of Monarch Assurance P.L.C.,  an organization headquartered on the Isle of Man and operating under the  laws of England (collectively "Monarch"). In the fall of 1989, plaintiffs  were approached by a British solicitor, Charles J. Deacon, who presented a  business proposition on behalf of one John Patrick Savage. Mr. Savage was  supposedly a high level agent of the United States' Central Intelligence  Agency (hereafter "CIA" or "Agency"), operating in Europe. The CIA needed  money to support certain covert projects being undertaken in Europe, code  named "Ultima" and "Bluebook," but for undisclosed reasons could not use  its own funds directly. Mr. Savage wished to borrow money in order to fund  his activities on behalf of the United States Government.


5
Following subsequent negotiations, Monarch in October 1989 paid to Savage  and Deacon $5 million, and in April 1990 a further $3 million. On April 26,  1990, in consideration for the $8 million received, Savage issued a  promissory note to pay plaintiffs $35 million on or before April 30, 1990.  Although there were certain indications that Deacon independently  guaranteed the note, the only issuer named on the promissory note was  Savage. The note made no mention of the CIA, the United States, or any  other third party.


6
Perhaps unsurprisingly, neither Mr. Savage, Mr. Deacon, nor the CIA paid  the note when it became due. Monarch later sued Deacon in the English  courts for fraud and won a $35 million judgment. However, Monarch was not  able to collect on the judgment. Monarch then brought suit in 1994 in the  United States Court of Federal Claims against the United States, one count  claiming breach of contract for the $35 million, and an additional count  claiming just compensation under a Fifth Amendment taking theory for  appropriation of the $8 million dollars lent to Savage.

II. The 1996 Decision (Judge Andewelt)

7
The Government responded to Monarch's complaint with a motion to dismiss  or, in the alternative, for summary judgment. The Government supported this  motion by arguing that the facts suggested that Savage was not a CIA agent,  but a con man. The Government argued further that Savage's alleged  relationship with the CIA was not relevant, since under Totten v. United  States, 92 U.S. 105 (1875), the court could not entertain a suit alleging a  breach of contract involving secret CIA actions. The Government submitted  affidavits from Government officials in support of its motion.


8
In due course, the trial court denied both the Government's motion to  dismiss and a subsequent renewal of the motion for summary judgment. The  latter was accompanied by two affidavits from then CIA Director John M.  Deutch. The first, for the public record, explained why to promote national  security the CIA had a firm policy of not disclosing any information that  would tend to either confirm or deny the existence or nonexistence of any  relationships or contacts between individuals and the CIA. The affidavit  invoked the common-law state secrets privilege, as well as certain  statutory privileges. The second affidavit from Director Deutch, submitted  in camera for the exclusive use of the trial judge, addressed the question  of whether any relationship existed between Savage and the CIA, and  described in detail why disclosing any information about whether Savage was  or was not an employee of the CIA, and then litigating any resulting  issues, would compromise national security. The second affidavit reiterated  the Government's invocation of the privilege with regard to any discovery  by plaintiffs.


9
In United States v. Reynolds, 345 U.S. 1 (1953), the Supreme Court  explained the steps necessary for the Government to invoke the state  secrets privilege:


10
There must be formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.


11
Id. at 7-8 (footnotes omitted).


12
Plaintiffs objected to the Government's invocation of the state secrets  privilege. In evaluating whether the circumstances were appropriate for the  claim of privilege, the trial court gave special consideration to an  affidavit, entered into the record by Monarch, of Lloyd N. Cutler, a well-  known Washington lawyer who served as special counsel to Presidents Carter  and Clinton. Mr. Taylor, Monarch's chief executive, had contacted Mr.  Cutler through a British lawyer, seeking help with his case and in  particular in establishing whether Savage was connected with the CIA. Mr.  Cutler made some inquiries of persons who "were then or had been" officials  of the CIA. In his affidavit, Mr. Cutler attested that he had been told  that "one John Patrick Savage had had a relationship with the Agency in  recent years," but that he had not been advised "whether the relationship  was that of a full-time official or a contractual employee," or whether the  relationship was still continuing.


13
The trial court considered the Cutler affidavit the one piece of evidence  most strongly militating against sustaining the claim of privilege, since  the apparent ease with which Mr. Cutler obtained information for his client  about a CIA operative seemed inconsistent with Director Deutch's claim that  the Agency never revealed such information. But after reviewing all the  evidence and particularly the second Deutch affidavit, the court concluded  that under the circumstances the Government properly invoked the state  secrets privilege.


14
In considering the consequences of the Government's invocation of the state  secrets privilege, the court, on the facts before it, rejected the  Government's argument that Totten dictated a dismissal of the case in its  entirety, but agreed that the Government need not respond to any discovery  requests relating to the extent of any relationship between Savage and the  CIA. The court further determined that when the Government, having  successfully invoked the state secrets privilege, resists a discovery  request that seeks disclosure of the secret information, no inference  arises against the Government with regard to the matter at issue. Rather,  the question then is whether the plaintiff, without such discovery, can  make a prima facie case that it is entitled to relief on its claim. See  Zuckerbraun v. Gen. Dynamics Corp., 935 F.2d 544, 547 (2d Cir. 1991)  (citing Halkin v. Helms, 690 F.2d 977, 998-99 (D.C. Cir. 1982), and  Farnsworth Cannon, Inc. v. Grimes, 635 F.2d 268, 281 (4th Cir. 1980) (en  banc)).


15
The trial judge examined plaintiffs' evidence in that regard. Monarch had  submitted into evidence the declaration of the British solicitor, Charles  Deacon, stating that Savage had represented to him that he was "with the  United States Central Intelligence Agency." As examples of Savage's  representations, Deacon cited two letters that Savage wrote to him. These  letters were written on what appeared to be CIA letterhead. In a letter  written to Deacon on January 26, 1990, Savage signed the letter with the  title, "Assistant Deputy Director, European Operations." In a second letter  written February 7, 1990, Savage indicated his affiliation with the CIA was  with "Global Affairs." Neither letter contained any description of Savage's  job responsibilities with the CIA, nor shed any light as to exactly what he  did for the CIA.


16
Monarch also submitted other declarations from persons who apparently  believed that Savage was with the CIA because of comments he made, or in  one instance because of his conduct in never allowing the individual to see  the contents of his briefcase. The trial court concluded that the  submissions were sufficient to make a prima facie showing that John Patrick  Savage was an employee of the CIA. The court noted that, although the  Government did not admit that the documents were authentic, it did not deny  that the documents constituted prima facie proof of the employment.


17
Importantly, the court further noted that employment by the Government was  not enough. It was also necessary that plaintiffs establish that Savage had  actual authority to enter into the contract on behalf of the Government.  The court pointed out that the Government's successful invocation of the  state secrets privilege may very well prevent plaintiffs from making the  necessary showing, but went on to opine that "it is at least possible that  through discovery plaintiffs may be able to gather unprivileged information  that, when combined with their other evidence, is sufficient to establish a  prima facie case of authority." 36 Fed. Cl. at 329.


18
We conclude that for the reasons given, the trial court correctly accepted  the Government's invocation of the state secrets privilege. We, along with  the trial court, have reviewed both affidavits submitted by Director  Deutch, and we find them to comply in all respects with the requirements of  Reynolds, and to be sufficient to justify the Government's immunity from  discovery regarding a relationship, if any, between the CIA and a John  Patrick Savage.


19
Further, we agree with the trial court that the key question in the case,  even assuming the alleged agent Savage was an employee of the CIA, is did  he have actual authority to contract in the manner he did on behalf of the  United States Government. The United States Government employs close to  three million civilian employees.1 If all Government employees  could, of their own volition, enter into contracts obligating the  Government, then federal expenditures would be wholly uncontrollable. City  of El Centro v. United States, 922 F.2d 816, 820 (Fed. Cir. 1990). Thus, to  avoid such a situation, the law requires that a Government agent who  purports to enter into or ratify a contractual agreement that is to bind  the United States have actual authority to do so. See Trauma Serv. Group v.  United States, 104 F.3d 1321, 1325 (Fed. Cir. 1997). The  corollary is that any party entering into an agreement with the Government  accepts the risk of correctly ascertaining the authority of the agents who  purport to act for the Government:


20
Whatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority. The scope of this authority may be explicitly defined by Congress or be limited by delegated legislation, properly exercised through the rule-making power. And this is so even though, as here, the agent himself may have been unaware of the limitations upon his authority.


21
Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384 (1947).


22
In light of this, the trial court concluded its review of the case by  stating that "[t]he court will afford plaintiffs an opportunity to gather  any unprivileged information that may establish a prima facie showing that  John Patrick Savage had the requisite authority to bind the government in  contract." 36 Fed. Cl. at 329. The Government's motion for summary judgment  was suspended pending further proceedings.

III. The 1998 Decision (Judge Bruggink)

23
After further proceedings, focused primarily on discovery matters, and with  the case now assigned to a different judge, the trial court in 1998 granted  the Government's motion for summary judgment. At first blush, summary  judgment may seem to be an inappropriate ruling, since it is clear that the  parties strongly dispute a genuine issue of material fact. But a dismissal  under Rule 12(b)(4) of the Rules of the Court of Federal Claims for failure  to state a claim upon which relief can be granted, equivalent to a  dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure,  seems equally inappropriate, because the complaint does state a claim for  relief under notice pleading rules. See Zuckerbraun, 935 F.2d at 547.  Here, if, because of the Government's invocation of the state secrets  privilege, the plaintiff cannot meet its burden to show that there are  genuine factual issues for trial, a grant of summary judgment under Rule 56  seems appropriate. See id.; R.C.F.C. 56(f); Fed. R. Civ. P. 56(e).


24
As the court explained, the primary argument by the Government asserted in  support of its motion was that the plaintiffs have been unable to put  forward prima facie proof that any authorized agent of the United States  executed the promissory note. The court reviewed the evidence before it  based on the limited discovery permitted, a matter to be considered further  below.


25
In addition to the affidavits and declarations previously mentioned, the  court reviewed certain declarations that were before the court at the time  of the earlier 1996 decision. This included the declaration of Axel  Karlshoj, managing director of Nordisk Industries. Mr. Karlshoj stated that  he was approached to serve as a conduit between Savage and certain  investors, such as plaintiffs, who were owed money as a result of the  dealings of Savage. He stated that an intermediary, one Lee Morris,  represented that Savage was "acting on behalf of the [CIA]." 42 Fed. Cl. at  261. The declaration of Edgar Reynolds, a friend of Savage, was also in the  file. Reynolds stated that he had the distinct impression that Savage was  an important person within the CIA.


26
The court also reviewed excerpts from interviews conducted by law  enforcement officials in Britain with Savage. Because Mr. Savage died a few  days after Monarch filed its case in the Court of Federal Claims, Monarch  never did have the opportunity to depose him. During interviews conducted  by Detective William Hulse of the Staffordshire Police Department in the  United Kingdom before Savage's death, and attended by a representative of  the Internal Revenue Service, Savage stated, "I have never been an employee  of the . . . [CIA]." When he was asked, "But you never worked for the CIA,  did you?", he answered "No, no." Savage also stated that he had "no warrant  of authority" for the Agency.


27
The court then reviewed the further evidence proffered by Monarch, obtained  following the 1996 decision. This consisted primarily of the statements of  three persons, Boris Z. Sielicki-Korczak, Lee Morris, and Raphael Moore.


28
Mr. Korczak attested that he was an "access agent" for the CIA gathering  raw intelligence on behalf of the Agency. Based upon his alleged dealings  with the CIA, Mr. Korczak declared the following regarding authority  granted by the CIA: 5. A person titled "Assistant Deputy Director European Operations" would have the requisite authority to enter into transactions and agreements described in . . . the complaint filed in this case.


29
6. An example of the type of authority that may be held by an individual working on behalf of the CIA (the "Individual"), is the case where the Individual is required to carry out a specific task on behalf of the CIA. That task may be, for instance, the securing of specific information from others, or the soliciting of financial backers for whatever purpose (a purpose which may or may not be known to the Individual). In order to carry out the assigned task, the Individual would be authorized by the CIA to claim to have a title or affiliation which would convince others to put faith in the Individual. Likewise, the Individual would be authorized to make promises which would make it more likely that the end task assigned would be achieved. Such promises may be done by entering into contracts.


30
7.In choosing a title, the Individual will ordinarily choose one which is not equivalent to a top most ranking, but rather a lesser and more believable ranking. That is, the Individual will not claim to be the "Director" of any known department, but rather a lower ranking person, such as a deputy or assistant, of a department that is not commonly known. In the above captioned case, the title of Assistant Deputy Director European Operations is a prime example. It is more believable, and harder to refute, than the title of "the" Director European Operations. Similarly, the stated affiliation with "Global Affairs" is sufficiently broad and non-descript to make it more likely to be believable.


31
Lee Morris, mentioned in the declarations of both Deacon and Karlshoj, is a  retired officer of the United States Navy. In his deposition, Mr. Morris  discussed a project he helped coordinate in Japan. In addition, he  mentioned that funds from that project would have been used to pay the  debts incurred by the "Savage situation" had the project gone through.


32
In an affidavit by Monarch's counsel, Raphael S. Moore, Mr. Moore stated  that he had conversations with one George Willis who lived in Northern  Ireland. Willis had lost money to Savage, and believed that Savage "was  with the [CIA]." Willis also told Moore that he, Willis, had called the CIA  and had been told by someone in the Director's office that Savage was not  an agent, but that if Willis could prove that Savage was such an agent,  they would pay him his loss.


33
On the basis  of  the  evidence  before  it, the trial courte CIA concluded  that plaintiffs had failed to carry their  burden  ofre CIA establishing  a  prima  facie  case  of  authority  by  Savage toe CIA contract with Monarch on behalf of the United States.  The  courte CIA agreed  with the Government's characterization that there was  are CIA serious shortcoming in plaintiffs' evidence: "plaintiffs are left with nothing  more  than  Savage's own actions as evidence of his left duties or authority."   42  Fed.  Cl. at 264.  The court, finding the  statements  in  Mr.  Moore's  affidavit   incredible,  alsounding concluded  that the Government had not waived the  state  secretsnding privilege.  Id.


34
We find no error in the court's conclusions that the evidence before it was  insufficient to establish even a prima facie showing of authority, and that  the state secrets privilege had not been waived by any alleged  conversations with officials in the Director's office. We are, however,  concerned about the possible unfairness that may have crept into the  proceedings as a result of certain rulings made with regard to the scope of  discovery by plaintiffs.


35
Following the 1996 decision and the court's invitation to plaintiffs to  pursue discovery with non-government witnesses, Monarch renewed its  request, submitted earlier but denied, for letters rogatory for two  Britons, Mr. Sima Malkowich and Mr. N.J. North, and requested letters  rogatory for three other overseas witnesses, Detective William Hulse, Mrs.  Sarah Savage, and Mr. Clive Smith.2 In addition, Monarch sought  to subpoena Mr. Cutler, Mr. Boris Z. Sielicki-Korczak, Senator Charles  Grassley, Woodrow Leon (Lee) Morris, and Mr. Marshall Jacobs.


36
In a hearing on December 4, 1996, the trial court heard Monarch's arguments  as to why they thought the depositions of Mr. Malkowich, Detective Hulse,  Mrs. Savage, Mr. Cutler, Mr. Korczak, and Senator Grassley would be  necessary. Monarch stated that it would no longer be pursuing the  depositions of Mr. North, Mr. Jacobs, and Mr. Smith.


37
At the hearing, Monarch explained that Mr. Malkowich, thought to be a  member of British Intelligence, had told Monarch that he could identify a  United States Senator who was aware of the contract between Savage and  Monarch and who had attempted to bring settlement of the alleged breach of  contract. Monarch, although acknowledging that the Senator would have more  direct knowledge of Mr. Savage's authority, did not however include the  Senator on its subpoena list. It was noted that even though Malkowich had  been very cooperative, Monarch had not pursued the route of obtaining an  affidavit from him rather than requesting a letter rogatory to depose him.


38
Monarch also explained to the trial court that despite having already  obtained substantial transcripts from Detective Hulse's interview of Mr.  Savage from other sources, it wanted a letter rogatory to depose Detective  Hulse.


39
In addition, Monarch argued that it needed a letter rogatory to depose Mrs.  Savage, who was now living in Europe. Monarch reasoned that simply by being  Mr. Savage's wife, she would have information regarding whether the CIA had  delegated contracting authority to her husband.


40
Further, Monarch argued that it needed to subpoena Mr. Cutler even though  he had already submitted a written declaration. Monarch explained that when  it last approached Mr. Cutler, he had stated that he was not willing to say  any more than was in his declaration, and that he would only state more if  he was required to under oath. Monarch reasoned that because Mr. Cutler and  a partner in his law firm were very closely connected to the CIA, they must  have further information regarding Savage's relationship with the CIA.


41
Monarch also argued that it needed to subpoena Mr. Korczak. According to  Monarch, Mr. Korczak was an undercover operative for the CIA who would give  information about the authority held by individuals with specific ranks and  titles in the CIA. In addition, Monarch explained that it needed to depose  Senator Grassley solely for the purpose of corroborating the fact that  Korczak was with the CIA.


42
With respect to Mr. Morris, Monarch stated to the trial court that Mr.  Morris told Monarch that he was with the CIA, stated that he had  information about delegations of authority within the CIA and had direct  knowledge of the transaction in which Mr. Savage was involved. According to  Monarch, Mr. Morris was Mr. Savage's supervisor in the CIA.


43
Throughout the hearing, the trial court made it clear that it would only  allow further discovery on the limited issue of whether the CIA had  delegated contracting authority to Savage. After hearing the parties'  arguments regarding the letters rogatory and the subpoenas, the trial court  allowed only the depositions of Mr. Korczak and Mr. Morris, and suspended  further consideration of the letters rogatory. See Monarch Assurance P.L.C.  v. United States, No. 94-518C (Fed. Cl. Dec. 11, 1996) (Order). The two  depositions were allowed with the express understanding that questioning  would be limited to whether Savage had the requisite authority to bind the  Government. Subsequently, Monarch obtained Mr. Korczak's declaration and  deposed Mr. Morris, as discussed above.


44
After the trial court concluded, on the basis of the evidence before it,  that the plaintiffs had failed to carry their burden of establishing a  prima facie case of authority, the court also adopted an alternative  rationale for its grant of summary judgment. The court considered the  arguments by the parties regarding the consequences of what would result if  there had been sufficient evidence of authority. Plaintiffs' view was that  the problem was the Government's-if it chose not to come forward with its  evidence, then Monarch should win. The Government responded that the court  should make an independent determination of the facts, taking into account  the in camera affidavit of Director Deutch, even though plaintiffs had no  opportunity to review or rebut the representations made therein.


45
The court, after discussing various alternative scenarios for resolving the  dilemma, and reviewing some of the cases that had considered the matter,  concluded that even if Savage was an agent of the Government authorized to  make the contract, the plaintiffs must lose if permitting the suit to  continue would irreparably damage national interests. The court further  concluded that the Deutch declaration "demonstrates a complete defense  which the court will not permit the plaintiffs to examine further." Id. at  266.


46
We believe the court was premature in its resolution of the difficult issue  regarding the circumstances under which national security compels a total  bar of an otherwise valid suit. As the Government cogently argues, there  are strong policy reasons why courts should generally refrain from such a  merits review. To do so risks the appearance of impropriety because  plaintiffs are unable to participate in the decision. Furthermore, such a  merits review risks compromising the secret, since it may suggest that the  Government has a particular defense to this suit, whereas in other cases an  opposite result may suggest otherwise. We believe it is preferable to  decide the case at this stage of the proceedings on the issue of whether  plaintiffs can establish actual authority. If the case can be resolved  properly on the evidentiary ground, without having to rely on non-record  information, we believe that is a preferable route to its resolution.


47
On that issue, we are of the view that the trial court's conclusion that  the evidence was insufficient to establish authority rests on an unduly  limited scope of discovery. The evidentiary decision the trial court made  in its 1996 decision-denying direct discovery from official government  sources but allowing further discovery from other sources-struck an  appropriate balance between the security needs of the Government and the  rights of litigants under established evidentiary rules and procedures to  develop and present their case. To maintain that balance, however, required  the court to give a fair amount of leeway to plaintiffs in building their  case from non-government sources. In responding to plaintiffs' request for  discovery orders, the trial court limited plaintiffs' discovery to only two  of the persons requested. On appeal, Monarch contends that it should have  been allowed discovery from four additional persons: Mr. Malkowich,  Detective Hulse, Mr. Cutler, and Mrs. Savage. We think that under the  circumstances here, when plaintiffs were already severely constrained in  their discovery effort, the trial court abused its discretion by not  allowing discovery of those four witnesses.


48
Admittedly, the likelihood that plaintiffs can cobble together enough  evidence to persuade the trial court that Savage had actual authority to  enter into this contract on behalf of the United States seems quite remote.  Admittedly, the likelihood that some of the witnesses named could or would  provide useful evidence is also problematic-the affidavits and depositions  already before the trial court consist largely of innuendo and second and  third hand hearsay, and plaintiffs' representations about the further  evidence it seeks suggest that much of that will be similar. Nevertheless,  on balance, the possible harm or inconvenience to the witnesses, and the  additional effort to be entailed by the Government and the court, do not  seem to outweigh the possible harm to plaintiffs and the appearance of  unfairness consequent to denying them full opportunity to make their case  from the four identified non-government witnesses.


49
Having said that, we wish to make clear to plaintiffs and their counsel  that the trial court is not expected to, nor should it, simply allow  plaintiffs to embark on a wide-ranging fishing expedition in hopes that  there may be gold out there somewhere, or worse, in hopes that the  Government will get tired of litigating and settle an otherwise unprovable  case. Our decision goes only so far as to indicate that the plaintiffs are  entitled to a reasonably liberal scope of discovery of the non-government  witnesses; on the record before us we do not believe they have had that.  Beyond that, we remind the parties that, in addition to monitoring  plaintiffs' discovery activities to ensure it is not abused, the trial  court is fully empowered to insist that plaintiffs have a sufficient basis  for pursuing specific leads, and to use its authority under the rules,  including the sanctions of Rule 11, to enforce its orders.


50
In summary, we find no error in the trial court's approval of the  Government's invocation of the state secrets privilege, thus denying access  to Government witnesses. However, because the trial court also severely  limited plaintiffs' opportunity for discovery of non-government witnesses,  we conclude that the trial court unduly constrained plaintiffs' right to  discovery as provided by federal rules, and thus their ability possibly to  prove authority to contract. In so doing, the trial court abused its  discretion. We vacate the judgment in the Government's favor, and remand  the matter to the trial court for further proceedings consistent with this  opinion. Since the same problem of authority to act for the Government  exists with regard to the count for a taking as for the count for breach of  contract, this disposition of the case moots the other issues raised by  plaintiffs on appeal.

CONCLUSION

51
AFFIRMED-IN-PART, VACATED-IN-PART, and REMANDED.



Notes:


*
  Senior  Circuit Judge Smith, who died on March 22, 2001,   did not participate in this decision.


**
  Judge Plager  assumed  senior  status  on  November 30,   2000.


1
  U.S.  Office  of  Personnel  Mgmt., The Fact Book,  2000r   Edition, Federal Civilian Workforce Statistics 8 (2000).


2
  Letters  rogatory  are formal communications  sent  by  a court  in  which  an  action is pending to a court of  a  foreign  country, requesting the foreign  court  to  take  the  testimony  of a witness resident  by within that court's jurisdiction and transmit a transcript  to  the  issuingnt  by  a court.   Black's  Law  Dictionary  916-17 (7th ed. 1999); see also R.C.F.C. 28(issuance of letters rogatory for the  taking  of  depositions  in  a  foreignF.C. 28 country).


