ON plaintiffs’ motion for rehearing and suggestion FOR REHEARING EN BANC
Following our order of March 21, 1980, which dismisses the petition, the plaintiffs have filed a motion for rehearing and suggestion for rehearing en banc. The gravamen of motion and suggestion is that plaintiffs never waived and always asserted their right under our Rule 39(b) to have their pleadings amended as of the original filing date to conform to evidence introduced without objection at trial. Without regard to whether there was a trial in the sense of the rule respecting the claim for deprivation of tax exemption, defendant says that in any case a rule of court such as Rule 39(b) cannot be construed to enlarge our jurisdiction to include a case from which 28 U.S.C. § 2501 excludes it. We agree. Carney v. United States, 199 Ct. Cl. 160, 462 F.2d 1142(1972); Rolls-Royce Ltd. v. United States, 176 Ct. Cl. 694, 364 F.2d 415 (1966).
A majority of active judges of the court not having voted to rehear the case en banc, the suggestion to so rehear it must be denied.
The motion for rehearing is denied and the dismissal of the petition is affirmed.
*667Plaintiffs’ petition for a writ of certiorari was denied October 14,1980.