concurring in the result:
I concur in the result reached by the court, but I would deny the defendant’s motions on the ground that it has failed to make the showing that would justify granting relief under our Rule 69(b).
Rule 69(b), which for all practical purposes is identical to Federal Rule of Civil Procedure 60(b), provides in pertinent part as follows:
[T]he court may relieve a party * * * from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 68(c); * * *
Relief under this rule is discretionary with the court. Since the rule provides for extraordinary relief, the courts have uniformly held that it may be invoked only upon a showing of exceptional circumstances. Flett v. W. A. Alexander & Co., 302 F.2d 321 (7th Cir.1962), cert. denied, 371 U.S. 841, 83 S.Ct. 71, 9 L.Ed.2d 77 (1962), and cases cited therein.
Defendant claims that the court erred in holding that Kaiser was entitled to recover under its “most favored nations” agreement with the Government, because, defendant says, the court made a factual mistake in finding that Reynolds Metals Company was permitted to exclude offgrade metal from its computations of contract production, whereas Kaiser included such metal in its contract production computations. But the defendant has not made a clear showing that such a mistake occurred. All defendant presently knows is that Reynolds Metals Company has filed a suit in this court claiming that it did not exclude offgrade metal, except for 30,-839,082 pounds produced at its San Patricio Plant. Defendant asserts that the offgrade material excluded by Reynolds was “starter” material and that this practice was followed by Kaiser and the other companies.
*243There is nothing new or exceptional in the Government’s contentions regarding Reynolds’ practices and the Government has clearly failed to establish that the court erred in its factual determinations in this case. Among the papers submitted with defendant’s motions is a copy of a letter dated July 11, 1968, from Reynolds Metals Company to the General Services Administration, containing a quotation from a letter written on May 9, 1958, by the Administrator of the General Services Administration to the Comptroller General, when the latter was considering Kaiser’s claim. The letter quoted from is included in the record of this case as Defendant’s Exhibit 201 for Identification. It shows that five years before Kaiser filed suit, GSA had determined that Reynolds had not excluded all offgrade metal from its contract production computations; that Reynolds was disputing Kaiser’s claim that Reynolds had been given favored treatment by being allowed to exclude the subpurity metal, and that Reynolds had informed the Government that if Kaiser were permitted to recompute its production by excluding the offgrade metal, Reynolds would insist upon the same treatment. Although Defendant’s Exhibit 201 was not admitted in evidence, a statement substantially to the same effect was contained in Plaintiff’s Exhibit 53, a letter from the Comptroller General dated June 6, 1958. Plaintiff’s Exhibit 53 was not only considered at the trial but was included in defendant’s proposed findings of fact to the trial commissioner (defendant’s requested finding 36, page 40, Defendant’s Proposed Findings of Fact, filed November 5, 1965). In view of these circumstances and the extensive transcript and supporting documents, I do not think we should grant the defendant’s motion on the ground of mistake, since the Government has not substantiated by adequate proof what factual errors were made, Thomas v. Colorado Trust Deed Funds, Inc., 366 F.2d 136 (10th Cir. 1966).
As I read the defendant’s motions, the Government’s principal basis for obtaining the relief sought under Rule 69(b) is “excusable neglect.” The defendant says that in view of the action filed by Reynolds and the contentions made by it, it is now essential to make an accurate determination regarding Reynolds’ treatment of offgrade metal and that Reynolds’ record, which provide the best evidence on this point, were never before the court. The affidavit of defendant’s attorney states that when she was assigned to the case, she was informed by the General Services Administration that Mr. William G. Magee, one of the Government’s principal witnesses in the case, was the most knowledgeable person in the GSA on the subject of the aluminum supply contracts in issue. Her affidavit further states that Mr. Magee had advised her that Kaiser was correct in its contention that Reynolds was computing production by excluding the off-grade metal.1 She also avers that, in view of the pressure under which trial preparation was required to proceed, she did not have the time to obtain accurate information about Reynolds’ accounting practices and believed that the correct answer had already been supplied by Mr. Magee. A review of Mr. Magee’s indefinite testimony indicates that he did not make a thorough study of the data that was available to the Government regarding Reynolds’ treatment of offgrade metal production during the years in question and that without such a study, he was unable to recall many of the important facts relating to this matter. Under these circumstances, the question before us is whether we should now allow the Government to retry the case and introduce evidence which the Government says may show factual infirmities in the court’s findings, when the defendant made no effort to obtain such evidence for presen*244tation at the trial. It seems to me that this question should be answered in the negative.
The record is entirely clear that the Government should have been on notice that Reynolds’ accounting practices, with respect to its treatment of offgrade metal in its contract production, were essential to the defense of Kaiser’s suit in this court. The initial pleading filed in 1963 contains the allegation that Kaiser believed that Reynolds had excluded the offgrade aluminum. I have already referred to Defendant’s Exhibit 201 and to Plaintiff’s Exhibit 53, a document of similar import. It is quite apparent from the lengthy letter of May 9, 1958 (Defendant’s Exhibit 201), that GSA then well knew the nature of Kaiser’s claims and rejected them; that it then realized that if it did not reject them, Reynolds would dispute the factual basis of the Kaiser claim and would insist on entitlement to any allowances made to Kaiser on that account. As previously stated, this letter was available to defendant five years before this suit was .filed, and it should have alerted the Government to the factual disputes that would arise when Kaiser undertook to prove that Reynolds had been given preferential treatment. Yet so far as appears, nothing was done to obtain from Reynolds evidence of the factual basis upon which Reynolds disputed Kaiser’s claim of preferential treatment.
There is also in the record a document, Plaintiff’s Exhibit 179, which is a summary of Reynolds’ contract production at San Patricio. The summary was prepared by Mr. Magee and shows that during the start-up production at San Patricio, 32,249,977 pounds of off-grade metal were produced and not included as a part of contract production. It is apparent that this document was in the hands of the Government long before Kaiser saw it, and since it put the Government on notice that Reynolds had excluded some offgrade production, it seems to me that the information should have alerted the Government to the desirability and necessity of finding out how much offgrade metal Reynolds excluded from its contract production and how much, if any, it included in that production. But, again, it appears that the Government did not feel it necessary to obtain the complete facts on this element of its defense.
Since defendant’s attorney says that she relied on Mr. Magee’s advice, attention is directed to his deposition which was taken for discovery purposes on January 29, 1964. Since Mr. Magee testified at the trial, the deposition was not admitted in evidence. The deposition is pertinent, however, in determining whether the defendant’s reliance on Mr. Magee’s indefinite statements and uncertain recollection constituted “excusable neglect,” which justified the Government’s failure to comb its own records or those of Reynolds Metals Company for an accurate determination of Reynolds’ treatment of offgrade metal. Mr. Magee could not recall the details of his own work and could not remember what Reynolds had or had not done with respect to some or all of its offgrade production. Thus:
Q [hy plaintiff’s counsel] And the information you had at that time was, in reporting production, Reynolds had excluded some metal which you described as starter metal.
A [by Mr. Magee] Well, you’ve had access to the report. I haven’t seen it for a long time. You apparently have reviewed it very recently, since you’re aware of it. I wouldn’t want to say when it was taken out, how much it was or to what extent. ******
Q All right. Do you know for how long a period this production of so-called starter metal continued at Reynolds?
A No, sir, I do not.
Q Do you know what period of time was covered by this exclusion of starter metal?
A No, sir, I do not.
Q Now—
*245A Not from memory, I must say, but it may be in the records.
Since this deposition was taken almost a year before the trial began, it is very difficult to understand why the Government was surprised at the trial by the fact that Mr. Magee’s testimony was not of overwhelming value to the defense. More to the point, however,'I think the deposition dispels the notion that the Government could justifiably rely on Mr. Magee’s recollection and advice, to the extent of excluding any thought of ascertaining the complete facts about Reynolds’ practices from documentary records. If the information needed was not already in the possession of the Government in the form of auditing reports routinely made in the course of administering the contracts, Reynolds’ files and the person in charge of keeping its records could have been subpoenaed under the rules of the court.
I realize that this is an extremely complicated ease and that defendant’s attorney may not have had all of the time that she desired. Nevertheless, the case was filed in 1963, did not go to trial until December 1964, and final judgment was not entered until December 15, 1967. Under the circumstances recited above and in the light of the authorities which have considered similar applications for relief, it seems to me that the defendant’s omission to obtain and present the evidence, which it says the court should have had before it, is not “excusable neglect.” Farmers Cooperative Elevator Ass’n v. Strand, 382 F.2d 224 (8th Cir.1967), cert. denied, 389 U.S. 1014, 88 S.Ct. 589, 19 L.Ed.2d 659 (1967); Greenspahn v. Jos. E. Seagram & Sons, 186 F.2d 616 (2d Cir. 1951); Plisco v. Union R.R. Co., 379 F.2d 15 (3rd Cir.1967), cert. denied, 389 U.S. 1014, 88 S.Ct. 590, 19 L.Ed.2d 660 (1967); Kahle v. Amtorg Trading Corp., 13 F.R.D. 107 (D.N.J. 1952).
I do not understand that the defendant is claiming relief from the judgment on the ground of newly discovered evidence. In any event, it is apparent that it is not now offering to produce evidence which was not available at the time of the trial or which could not have been discovered by the exercise of reasonable diligence prior to the trial.
Any court is necessarily concerned when a responsible attorney alleges that it has reached an incorrect result because of a mistaken determination of the facts of a case. However, the facts in any litigation must be decided on the basis of the evidence produced by the litigants in that particuar case. It may well be that if the case were retried, the Government could present a stronger and more effective defense, but to make a litigation an open-end proposition jeopardizes the confidence which litigants can place in a court’s ability to render a final judgment. To be sure, there are exceptional circumstances under which judgments should be set aside when an adequate showing is made under Rule 69(b). In the absence of such a showing, the time comes when a court must stick by the judgment it rendered so that the parties are finally put at rest about their respective rights and obligations as the court determined them.
It is rare indeed to find an attorney on the losing side of any vigorously contested case, who cannot make an appealing argument that if he had had more time, if he had not overlooked certain matters, or if he had had more assistance from his client, he would have won the cáse. But these are not the grounds upon which courts grant relief from a judgment under a rule like our Rule 69(b). When all is said and done, it seems to me that the Government here is asking for a retrial, because its attorney did not have the time and help needed for an adequate presentation of its defense. I do not question the good faith or the sincerity of the Government’s conscientious attorney. She was the second attorney assigned to represent the Government in this case, and I do not doubt that she exerted every effort, under difficult conditions, to do what she thought best for her client. I sympathize with her because the record *246indicates that she had to carry the entire burden of preparing for and trying a lengthy and complicated case without the help of any other attorney. If the Government’s defense was deficient on that account, the responsibility lies with those who are charged with the protection of the Government’s interests in litigation. This is a burden which the court cannot and should not assume. In the interest of judicial economy, in fairness to the parties, and in fairness to other litigants waiting to have their cases decided, we should not allow the parties to try and retry cases, especially cases like this which have already consumed so much time, expense, and effort, unless it is demonstrated that exceptional circumstances, contemplated by our Rule 69(b), justify such action.
LARAMORE, DURFEE, and COLLINS, Judges, concur in the foregoing concurring opinion of the Chief Judge.. The affidavit does not state and there is nothing in the record to show that Mr. Magee ever stated or reported that Reynolds had excluded all such offgrade metal.