The Section is administered by a Chief and an Assistant Chief. The
Section is divided into a number of units.
- Litigation Unit.
Attorneys assigned to the Litigation Unit
supervise the handling of all cases and handle all aspects of certain cases
including pre-trial, trial and post-trial activities.
Title Unit. The Title Unit prepares opinions of title for land
acquired by the United States by purchase pursuant to the provisions of 40 U.S.C.
§ 255.
Appraisal Unit. The Appraisal Unit reviews appraisals,
settlement proposals and appraisal guidelines for cases in condemnation and
provides assistance to Section attorneys and United States Attorneys in trial
preparation and procedures. See USAM
5-9.100 for further information concerning the function of this unit.
Administrative Unit. The Administrative Unit is responsible for
processing all requests for the institution of condemnation proceedings;
preparing all intermediate and final opinions of title of the Attorney General;
and managing LDTS, a comprehensive computer-based information system designated
to track all significant events from the time of its inception through final
disposition of the case.
The litigation of the Land Acquisition Section is conducted pursuant
to the following authorities:
- Act of August 1, 1888, c. 728, § 1, 25 Stat. 357, as
amended, 40 U.S.C. § 257 (Condemnation Act);
- Act of February 26, 1931, c. 307, § 1, 46 Stat. 1421, 40 U.S.C. §
158a-f (Declaration of Taking Act);
- Act of August 27, 1958, 72 Stat. 892, 23 U.S.C. § 107 (interstate highway
rights-of-way acquisition);
- Rule 71A, Fed.R. Civ.P.;
- 16 D.C. Code §§ 1351-1368 (1973 ed.) (federal land acquisition in the
District of Columbia);
- Joint Resolution of September 11, 1841, 5 Stat. 468, as amended, 40
U.S.C. § 255 (Examination of Title Act).
Land acquisition cases may not be referred directly to United States
Attorneys by agencies. Actions to acquire land may not be initiated by a United
States Attorney except upon their referral to him/her by the Attorney General,
through the Land Acquisition Section.
The extent to which a United States Attorney is responsible for
handling any condemnation case is determined by the classification given that
case by the Land Acquisition Section. Condemnation matters are classified into
two categories, as described at USAM 5-15.321
and 5-15.322,. A case may be reclassified at any time if this becomes necessary
due to changed circumstances.
Category 1 consists of cases in which there are no actual or
anticipated policy questions, peculiar appraisal problems, novel legal questions,
or claimed compensation in excess of $100,000. United States Attorneys will have
full responsibility for the Category 1 cases, subject only to:
- Such assistance on tactical or legal matters as they may request
from the Department of Justice; and
- Approval of the Justice Department of any settlements in excess of $200,000
or under that amount when:
- For any reason, the compromise of a particular claim, as a practical
matter, will control or adversely influence the disposition of related claims
totalling an amount in excess of $200,000; or
- When the revestment under 40 U.S.C. § 285f of any land or improvements
or any interests in land are involved, except in cases in which the land owner
desires to remove buildings, trees and shrubs, crops, or fixtures attached to the
realty which are not needed or desired by the government, provided that the
exclusion has been approved by the local representative of the acquiring agency;
or
- Because a novel issue of law or question of policy is presented, or for any
other reason, the settlement offer should receive the attention of the
Environment and Natural Resources Division of this Department.
The United States Attorney should send copies of court papers to the
Department of Justice for information, comment, and suggestions, and should
cooperate in the reasonable implementation of all suggestions made.
Category 2 consists of cases in which there are actual or anticipated
policy questions, peculiar appraisal problems, novel legal questions, or claimed
compensation in excess of $100,000. Category 2 cases will be the joint
responsibility of the United States Attorneys' Offices and the Department of
Justice. The participation of the Land Acquisition Section may range from mere
counsel and advice, on the one hand, to management of the case on the other,
depending upon national interests. The provisions of USAM 5-1.324 are applicable to Category 2 matters.
The instructions herein set forth deal in broad terms with general
procedures peculiar to condemnation litigation.
Rule 71A of the Fed.R. Civ.P. governs the procedure to be followed in
all cases for the condemnation of real and personal property under the power of
eminent domain. All condemnation cases must be prosecuted in strict conformity
with this Rule. Rule 71A provides that the general Fed.R. of Civ.P. shall be
applicable to all cases, except as otherwise provided in Rule 71A. There must
be, therefore, strict conformity with the general rules, subject to the
complaint, the form, content, and method of service of notice to defendants, and
the form and content of the answer or appearance of defendants.
The Declaration of Taking Act (see 40 U.S.C. § 258(a), (e))
authorizes the United States to acquire an interest in land immediately upon the
filing of a declaration of taking with a court and the deposit in the court of
the estimated compensation stated in the declaration.
United States Attorneys and field attorneys must comply promptly with
instructions from the Department for filing of a declaration of taking and the
deposit of estimated just compensation pursuant to the Declaration of Taking Act
(see 40 U.S.C. § 258(a), (e)). Duplicate originals of a dated receipt
of the clerk of the court for the amount deposited as estimated just compensation
should be obtained and transmitted to the Department. A judgment on declaration
of taking is not required unless specifically requested by the Department. The
judgment, if obtained, should contain a finding by the court of the filing of the
declaration of taking and the deposit of estimated compensation, the dates
thereof, and an adjudication that title to the exact extent of the estate or
interest described in the declaration is vested in the United States. The
judgment should also contain an order for the surrender of possession if
requested by the acquiring agency. Unnecessary recitations
should be omitted from the judgment in accordance with Rule 54(a), Fed.R. Civ.P.
Service of copies of the judgment upon defendants is controlled by Rules 5 and
77(d), Federal R. Civ.P. The case must be prosecuted to a speedy conclusion in
order to minimize the amount of interest which the government must pay on the
amount of the ultimate award in excess of the deposit.
Under the Declaration of Taking Act and Rules 71A(c)(2) and (j), Fed.R.
of Civ.P., the court may order that the monies deposited as estimated
compensation, or any part thereof, shall be paid forthwith to the rightful
claimant. The purpose of the Declaration of Taking Act is, first, to give the
government title to and possession of the land and to relieve the government of
the burden of interest accruing on the amount of the deposit, and second, and of
equal importance, to make funds available for immediate distribution to the
former owner in the discretion of the court.
In furtherance of this purpose and in accordance with Rule 71A(j),
Fed.R. of Civ.P., United States Attorneys and field attorneys are required
actively to assist landowners and the court, as amici curiae in effecting prompt
distribution of funds deposited pursuant to the Declaration of Taking Act.
Detailed instructions with respect to distribution are set forth in the ENRD Resource Manual at 13.
Immediately upon the filing of a declaration of taking and the deposit
of estimated compensation, the landowner and other parties interested should be
notified by letter, by the United States Attorney or field attorney, of the
deposit and the amount thereof and that government counsel will render assistance
in effecting advance distribution without prejudice to the right of the landowner
to claim a larger amount. A form letter with which there should be substantial
conformance is found at the ENRD Resource Manual at
28.
Practices in land acquisition cases vary from district to district,
depending upon the rules and customs of the courts.
In several districts, local rules have been adopted which permit up to
15 tracts, economic units or ownerships, to be included in one declaration of
taking, but require that for each such tract, economic unit or ownership, a
separate civil action will be opened by the clerk of the court. These local
rules generally follow the guidelines suggested by the United States Judicial
Conference, as set out in the ENRD Resource Manual at
1. It should be noted that before this filing procedure can be utilized a
local rule must be adopted by the court. A special form of complaint has been
prepared to conform to the guidelines. See ENRD
Resource Manual at 25.
The Division has developed a program called the "Nine-Point Program for
Settlement or Trial Within a Year" as a means of expediting the handling of
condemnation cases. Details with respect to this program are set forth in the
ENRD Resource Manual at 2. United States Attorneys
are urged to become familiar with this program and to the fullest extent possible
to process land acquisition cases in their districts in this methodical way.
The Division issued a memorandum dated June 6, 1980, to all United
States Attorneys, announcing the Department of Justice policy favoring consent
to trial of land condemnation cases by United States Magistrates in appropriate
circumstances, as defined in 28 U.S.C. § 50.11. The policy furthers the
goals of the Federal Magistrates Act of 1979 (Pub.L. 96-82) and will also serve
to expedite trial in appropriate circumstances. All attorneys in the United
States Attorneys' offices are encouraged to seek the consent of parties to
trials, either by a magistrate or by a jury presided over by a magistrate, in
appropriate cases, and to ensure that parties in cases filed before October 10,
1979, are notified of their right to consent to the magistrates' exercise of
litigation jurisdiction. For a detailed statement of the Division's policy in
this regard, see the ENRD Resource Manual at 3.
The Land Acquisition Section must be informed promptly by letter
including the forwarding of all pleadings, where pertinent, of all major steps
taken in each case, such as the completion of personal service of notice and of
publication of notice (see ENRD Resource Manual
at 8), the dates of all trials and hearings and the results thereof, and the
filing by the United States Attorney and any defendant of a notice of appeal or
a motion for new trial. It is essential that there be strict observance of the
foregoing rule.
The United States Attorney or field attorney shall transmit to the Land
Acquisition Section, at the stages of the case hereinafter designated, successive
partial transcripts which will be combined in the Department at the conclusion
of the case into a complete transcript of record. No further or additional
transcript is required and no documents included in one transcript need be
duplicated in any subsequent transcript.
- Initial Transcript. Upon the institution of the case there shall
be transmitted to the Department an initial transcript, which shall contain the
following documents:
- One certified and one conformed copy of the complaint (see ENRD Resource Manual at 24 or 25);
- Two conformed copies of the notice of condemnation (ENRD Resource Manual at 27);
- If a declaration of taking is filed, duplicate originals of the dated receipt
of the clerk of the court for the moneys deposited as estimated compensation;
- If a judgment is entered upon a declaration of taking or an order of
possession (ENRD Resource Manual at 44) is
obtained, one certified and one conformed copy of the judgment or order; and
- One certified and one conformed copy of any order and two conformed copies
of any other papers filed in connection with the institution of the case.
- Intermediate Transcript. Upon the entry of any judgment determining just
compensation (whether for one or more tracts in a case) there shall be
transmitted to the Department an intermediate transcript consisting of:
- One certified and three conformed copies of the judgment if the
Department is to obtain the deficiency, or one certified and one uncertified copy
of the deficiency judgment together with a copy of the letter of transmittal if
the judgment has been transmitted with a request for payment to the local
representative of the acquiring agency as authorized at USAM 5-15.582;
- One conformed copy of all papers of whatever nature filed in the case prior
to and including the date of entry of the judgment (but excluding copies of
papers included in transcripts previously transmitted to the Department and
excluding orders of distribution);
- Evidence of any lis pendens recorded among the local land records,
see USAM 5-15.524;
- The evidence of title, properly continued, see USAM 5-15.533; and
- The certificate as to parties in possession and mechanics' liens. See
USAM 5-15.536.
- When an intermediate transcript is transmitted to the Department, the
United States Attorney or field attorney should state in the letter of
transmittal that the transcript constitutes, or when combined with partial
transcripts previously transmitted will constitute, a complete transcript of the
record of the case to date. If there is no deficiency the intermediate
transcript may be combined with the final transcript.
- Final Transcript. At the conclusion of the proceedings, the Attorney
General prepares an opinion directed to the acquiring agency. Therefore, upon
the entry of a final judgment (whether for one or more tracts in the case) there
shall be transmitted to the Department a final transcript consisting of:
- One certified and one conformed copy of the final judgment, unless
copies of the judgment were previously transmitted to the Department with the
intermediate transcript;
- Duplicate originals of the dated receipt of the clerk of the court for any
moneys deposited pursuant to a judgment determining compensation;
- The evidence of title, properly continued as provided in USAM 5-15.533 unless needed for use in effecting
distribution of just compensation, in which event the evidence of title should
be transmitted to the Department upon the completion of distribution. The
transmittal letter should indicate how any title objections noted in the title
evidence have been eliminated or should have attached to it any curative data
obtained to eliminate such objections;
- Evidence of the disposition other than in the case of any outstanding
compensable interests disclosed by the evidence of title;
- All other related papers and curative data pertinent to the proceeding,
such as affidavits, deeds, disclaimers (See ENRD
Resource Manual at 49), releases, etc., unless other papers transmitted will
indicate that the liens and other interests are barred by service of process on
the necessary parties;
- Evidence that complete distribution has been ordered of all funds which
have been deposited in court by the government (however, transmittal of the
papers enumerated above should not be deferred pending completion of this step);
and
- If no declaration of taking was filed, one certified and one plain copy of
the order vesting title should be forwarded to the Department.
No case may be considered closed until:
- All funds have been ordered disbursed;
- All pending matters, such as motions for new trial or appeals, have been
terminated;
- In use cases:
- The final term has expired, or the government's occupancy has
otherwise terminated, and
- The question of restoration damages has been adjudicated or otherwise
disposed of.
United States Attorneys will be advised when they have been authorized
by the Attorney General to acquire land on behalf of the federal agency.
Accompanying the authorization to the United States Attorney to acquire the land
will usually be the following documents:
- A copy of the government official's letter to the Attorney General
requesting the institution of condemnation proceedings, and citing the authority
for the taking;
- Where immediate title is required, a declaration of taking and one copy
thereof, to which will be attached a description of the land to be acquired and
a map showing the land;
- In cases where a declaration of taking is to be filed, a check for the
estimated compensation, or instructions indicating how the check may be obtained;
and
- Advice as to classification of the case and division of responsibility for
the prosecution of the case between the United States Attorney and attorneys in
the Environment and Natural Resources Division. See USAM 5-15.300 et seq.
On occasion the letter of transmittal may contain special instructions
which will govern procedure if at variance with anything contained herein.
Upon receiving the letter authorizing the initiation of an action to
condemn land, the United States Attorney shall:
- Secure from the acquiring agency the materials described in the
ENRD Resource Manual at 4.
- Prepare the documents described in the ENRD
Resource Manual at 5; and
- File the complaint pursuant to the instructions in the ENRD Resource Manual at 6.
When the land involved in a condemnation case is the subject of a valid
accepted option or contract of sale, executed both by the presumptive owners and
by a duly authorized representative of the acquiring agency prior to the
institution of the condemnation case, the accepted option or contract is binding
upon the signatories thereto in the condemnation case. The accepted option or
contract should be pleaded in the complaint in condemnation. The United States
Attorney or field representative is authorized without the prior approval of the
Attorney General to have a judgment entered in the amount of the accepted option
or contract provided that the local representative of the acquiring agency has
advised in writing that the land has not decreased in value due to any action of
the owners since the date of the option or contract, and all special and unusual
conditions and requirements of the option or contract, if any, have been
performed. It is also necessary that a determination
shall have been made that the optionors in the accepted option or the vendors in
the contract of sale are the sole and only parties entitled to the just
compensation, other than taxing authorities, lienholders and encumbrancers whose
claims may be satisfied from the award.
The procedure for summary judgements under Rule 56, Fed. R. Civ. P., should
be utilized in obtaining the entry of consent judgements on options and contracts
of sale, but only after the expiration of the time for filing of answers or
appearance by defendants, see USAM
5-15.540 and 5-15.542.
In conclusion with the institution of condemnation proceedings, a notice of
the pendency of the action or lis pendens shall be filed or recorded among the
proper local records, except in those juridictions where the law is settle that
the commencement of the action is notice to all persons affected. If more than
one county is involved, a separate notice is necessary for each county.
The steps necessary for the commencement of lis pendens notice are determined
by the law of the particular state. Some states follow the common law, which is
that notice commences upon the mere filing of the complaint. Some common law
states, however, have the additional requirement that the defendants must be
served with process before notice will commence. In other states the common law
has been superseded by statute and the filing of a prescribed form of notice of
lis pendens is necessary to commence notice. And where, under local law, either
a declaration of taking or a judgment on declaration of taking is entitled to be
recorded and is deemed to give notice, the recording thereof would constitute
notice. In no instance should both a lis pendens notice and a judgment on
declaration of taking be recorded.
Service of the notice of condemnation must be made in accordance with
Rules 4(c) and (d), Fed.R. of Civ.P. A copy of the complaint need not be served
with the notice of condemnation.The Soldiers' and Sailors' Civil Relief Act of
1940 (54 Stat. 1178), as amended, is in full force and effect and is applicable
to condemnation cases. The United States Attorney or field attorney must
investigate to determine whether any defendant who has not answered or filed an
appearance is in military service with the Armed Forces or is in public Health
Service on duty with the Armed Forces. The United States Attorney or field
attorney must comply strictly with the provisions of the Act (50 U.S.C., App.
520) by filing necessary affidavits and moving for the appointment of an attorney
ad litem, when required.
Complete instructions with respect to service are set forth in the ENRD Resource Manual at 8.
Where a declaration of taking has been filed, United States Attorneys
and field attorneys must comply with instructions from the Department requiring
the entry of an order for the surrender of possession of property to the
government. See ENRD Manual at 44. Unless
the property is vacant the acquiring agency should be requested to advise that
the necessary 90 days' written notice has been given of the date by which
possession is required if any person lawfully occupying the property shall be
required to move from a dwelling or to move his/her business or farm operation,
as required by Section 301(5) of Public Law 91-646, approved January 2, 1971, 84
Stat. 1905. Notice of the entry of the order (ENRD
Resource Manual at 44), and of the date provided therein for the surrender
of possession are controlled by Rules 5 and 77(d), Fed.R. Civ.P. Service of a
copy of the order should be made upon the person in possession
of the land in accordance with Rule 5(b), Fed.R. of Civ.P., or service should be
made in the manner and within the time directed by the court in the order.
If the party in possession refuses to surrender possession as provided
in the order, application should be made, in accordance with Rule 70, Fed.R.
Civ.P., for a writ of assistance to put the government in possession.
Application for a citation in contempt under Rule 70 should not be made without
the prior approval of the Department.
Rule 71A(c), Fed.R. Civ.P., provides that there shall be named
defendants in condemnation cases all persons having or claiming an interest in
the property condemned whose names can be ascertained by a reasonably diligent
search of the local land records, considering the character and value of the
property involved and the interest or estate to be acquired. Persons having an
interest in property include those owning an estate in the land (e.g., fee owner,
lessee, tenant) and those having a lien or encumbrance on the land (e.g.,
mortgagee, taxing authority, material person, mechanic). Evidence of title must,
therefore, be obtained and examined for a determination of the necessary and
proper parties defendant. Persons having (or claiming) an interest in the
property at the time of the commencement of lis pendens notice, see 5-15.524 are necessary parties and must be joined
in the action as defendants. By joining as defendants all persons d
isclosed by the title evidence as having a possible interest in the property as
of the commencement of lis pendens notice, and, in the course of proceedings, by
giving those parties notice and opportunity to be heard at the trial or hearing
on just compensation, due process will have been afforded and the final judgment
will be res judicata as to those parties. If the United States secures a
judgment of condemnation fixing compensation and ordering distribution to the
wrong person or to fewer than all persons entitled thereto, the party having a
compensable interest who was omitted from the proceedings has been denied due
process and is entitled to bring an action against the United States for just
compensation. The United States may thus be compelled to pay twice for the same
acquisition. Where the interest of the omitted party was a matter of record but
was not disclosed by the title evidence, the United States may recover its loss
from the title company or abstracter up to the li
mit of liability. See USAM 5-15.534.
In condemnation proceedings the necessary evidence of title is made
available to the Department by the acquiring agency. In compliance with
applicable standards, title evidence conforming to the requirements of the
Department should be obtained from approved abstracters or title companies.
Contracts for the title evidence should include as a separate item the costs of
any necessary continuation of the evidence of title.
The evidence of title must be continued to a date subsequent to the
recordation of the lis pendens, declaration of taking or of the judgment on the
declaration of taking. On the basis of information, if any, disclosed by the
continuation of the evidence of title, and the certificate of inspection and
possession, USAM 5-15.536 any additional
parties shown by the continuation to have, or who may claim to have, any interest
in the property involved must be joined as defendants in the case, and any
changes in the naming of necessary and proper parties defendant must be effected.
The procedure for adding, dropping, or substituting parties is by motion and
order under Rules 21 and 71A(g) and (i)(3), Fed.R. Civ.P. An amended complaint
need not be filed. Detailed instructions with respect to continuing title
evidence are set forth in the ENRD Resource Manual at
7.
Title evidence, in addition to being properly continued, must also
comply with the Department's requirements with respect to the limitation of the
title company's liability.
Generally, certificates of title (ENRD
Resource Manual at 48), and title insurance policies shall not limit the
liability of the title company to a sum less than 50% of the reasonable value of
the property. As to acquisitions valued at more than $50,000, the limitation of
liability of the issuing title company under the certificate of title or title
insurance policy may be limited to 50% of the first $50,000 and 25% of that
portion of the value in excess of that amount.
The "reasonable value of the property," in the context of condemnation
proceeding, is the amount awarded as just compensation in the judgment. Where
the title company has limited its liability to a sum substantially less than that
permitted, an endorsement to the certificate or policy must be obtained from the
title company providing for an acceptable amount of coverage. (Reasonable
compliance with the requirements as to the percentage limitation of liability is
all that is required.)
Recitations in the title evidence that the limitation of liability is
"as per agreement," "to be agreed upon," or the like, are unsatisfactory. In
such instances it will be necessary to obtain an endorsement providing adequate
coverage in a stated dollar amount. Title evidence that does not state dollar
amounts of coverage, but states that coverage is in "the amount of the award" or
a stated percentage (not less than permitted) of the award, is acceptable.
It is essential that the title evidence disclose the names of the
persons in whom title was vested at the time of commencement of notice.
See USAM 5-15.530. This should present
no problem in cases instituted by complaint only.
In cases in which a declaration of taking has been filed and either the
declaration itself or a judgment thereon has been recorded, the continued
evidence of title typically recites that title to the property as of the
effective date thereof is vested in the United States of America, followed by an
appropriate reference to the recordation of the declaration or judgment.
However, such a recitation must also be accompanied by a statement that prior to
the filing for record of the declaration or judgment, as the case may be, title
was vested in a named person or persons. An example of a satisfactory
endorsement is given below:
ENDORSEMENT
Attached to Policy No. 87654
Issued by
URBAN TITLE INSURANCE COMPANY
Schedule of A of the above policy is hereby amended in the following
particulars:
Paragraph 2 of Schedule A is hereby deleted and the following is substituted:
2. Title to the estate or interest covered by this policy at the date hereof is
vested in the UNITED STATES OF AMERICA by judgment upon declaration of taking
recorded January 15, 1973, Book 312, Page 923, Deed Records of Benton County,
Missouri. Prior to filing said judgment, title was vested in John Smith and Mary
Smith, his wife.
Without such a certification by the title company as to prior
ownership, it cannot be ascertained whether the person from whom the property has
been taken by the condemnation proceeding has been made a defendant in the
action. Insurance that title is vested in the United States by declaration of
taking or judgment thereon recorded on a given date is no protection against the
loss that might result in the event that the prior owner was not joined in the
action and subsequently recovers compensation from the United States in a
separate proceeding.
In order to insure the joinder as defendants in the condemnation cases
of all parties who have, or who may claim to have, any right or interest in the
property involved, whether or not such right or interest is disclosed by the
evidence of title, the United States Attorney or field attorney should obtain a
certificate showing (a) whether any party is in actual or constructive possession
of all or any part of the land whose rights, if any, are not a matter of record,
and (b) whether within the period provided by local law there has been any work
or labor performed upon the property or any material furnished in connection with
any work upon the property which would entitle anyone to a lien. Generally, the
necessary certificate of inspection may be obtained from the local representative
of the acquiring agency or the custodian for the government of the property. The
certificate should conform substantially with that set out in the ENRD Resource Manual at 4
7. All or any number of the tracts or parcels of land in a particular case
may be included in one certificate of inspection, if more convenient than using
a separate certificate for each tract.
All parties disclosed by the certificate as to possession and
mechanics' liens to have an interest in the property involved must be joined as
defendants in the case as provided at USAM
5-15.530.
When submitting a final transcript; USAM
5-15.516 to the Department, the title evidence is incomplete unless it
includes a certificate of parties in possession and mechanics' liens.
The final evidence submitted to the Department in the final transcript
must satisfy the following requirements:
- The abstract must be continued to the date of commencement of lis
pendens or other notice, USAM 5-15.524;
- A supplemental certificate or continuation title report, binder, or
endorsement based on a search of the records to the date of commencement of lis
pendens or other notice must be obtained. No final certificate or policy is
required provided the preliminary certificate, report, or binder does not
improperly limit the title company's liability, USAM 5-15.534 or the company assumes the required
financial liability and the certificate, report, or binder contains no provision
under which the issuing company denies liability for losses if the final
certificate or policy is not issued.
When transmitting title evidence to the Department as part of a final
transcript of record, there should be included evidence of the disposition of any
outstanding compensable interests disclosed by the evidence of title which
interests are not barred by the condemnation proceedings. For example, an
official receipt for the payment of ad valorem taxes should accompany title
evidence disclosing unpaid taxes which were a lien on property on the date of
taking.
If a defendant wishes to raise an objection to the taking, he/she must
answer within 20 days from receipt of notice (ENRD
Resource Manual at 7), unless the time is extended. If a defendant files any
pleading alleging failure to comply with the requirements of the National
Environmental Policy Act of 1969, 83 Stat. 852, 42 U.S.C. § 4321, United
States Attorneys should immediately submit to the Department duplicate copies of
such pleadings, together with available information as to compliance with this
Act by the acquiring agency. Detailed instructions with respect to responding
to a challenge to the taking are set forth in the ENRD
Resource Manual at 9.
If a defendant merely wishes to appear in the cause to assure notice
of any future action to be taken therein, the United States Attorney or field
attorney may suggest that he/she file a notice of appearance.
It may occasionally be to the advantage of all concerned to modify or
change the estate being condemned. The Department should be informed promptly
of any suggestions which either the United States Attorney or the property owners
may have concerning modification, alteration, or change of the estate or
description of the property to be condemned, but no alteration of the pleadings
should be made except upon receipt of appropriate authorization from the
Department.
The Attorney General is authorized in any condemnation case to
stipulate on behalf of the United States to exclude any property or any part
thereof or interest therein which may have been taken by the United States by
declaration of taking (40 U.S.C. § 258(f)). See USAM 5-15.512. The necessity for the exclusion
of property acquired by taking generally occurs in two classes of cases:
- Where the estate taken is not the estate wanted. In cases in
which through inadvertence or otherwise title has been taken to property or some
portion thereof or an estate or interest therein not desired by the acquiring
agency or found subsequently not to be needed for public use, United States
Attorneys and field attorneys must obtain the prior authorization of the
Department for the exclusion of property.
- Where a former landowner wishes to remove property not needed by
government. In cases in which the landowner desires to remove buildings, trees
and shrubs, crops, or fixtures attached to the realty which are not needed or
desired by the government, United States Attorneys and field attorneys are
authorized to enter into stipulations for the exclusion of property without
securing the approval of the Department provided that the exclusion has been
approved by the local representative of the acquiring agency. However, if the
property is of high value, the specific approval of the Department should be
obtained.
The authority of United States Attorneys and field attorneys to enter
into stipulations is governed by the nature of the property to be excluded
(see USAM 5-15.544), but in the event
of any question, specific instructions should be obtained from the Department.
Detailed instructions with respect to the exclusion or dismissal of land from
proceedings are set forth in the ENRD Manual at
10.
In all cases in which a stipulation is entered into for the exclusion
of property, the stipulation must contain either a provision fixing the amount
by which the just compensation, whether already determined or to be determined,
shall be reduced by reason of the exclusion, or a provision to the effect that
no claim of whatever nature for just compensation will be asserted in the case
or otherwise for the property excluded. If, in the opinion of the acquiring
agency, the property to be excluded is of no value or the exclusion will result
in a savings to the government by the avoidance of demolition or removal costs,
the provisions of this paragraph shall not apply.
A stipulation relating to the removal of property not needed by the
government, see USAM 5-15.544 should
also contain a provision limiting the time for removal by the owner of the
property and providing that if the owner fails to remove the property within the
prescribed time, the stipulation shall be of no force and effect.
Upon receipt of instruction from the Department that the temporary use
of property is no longer necessary, the United States Attorney or field attorney
should promptly file a motion for the limitation of the term condemned to the
date of termination of the temporary use and the surrender of possession of the
property by the government. Service of the motion and notice should be made in
accordance with Rule 5(b), Fed.R. Civ.P. Proper arrangements should be made
promptly for a determination of the extent, if any, of the monetary liability of
the government for payment of just compensation by reason of any physical changes
of the property resulting solely from the government's use. Generally, there
should be obtained an estimate of the cost of physical restoration, with proper
allowance for salvage, and an appraisal reflecting the diminution or enhancement
in the fair market value of the property as of the date of termination of the
temporary use resulting directly and exclusively
from physical changes made by the government.
An appropriate order of termination should be entered covering
restoration damages, if any, or finding no further liability on behalf of the
government (one certified and one plain copy of such order should be forwarded
to the Department) or the case should be set for trial at the earliest
practicable date for the adjudication of all claims of the defendants for
restoration.
Rule 71(h), Fed.R. Civ.P., provides that any party to a condemnation
case may have a trial by a jury on the issue of just compensation by filing a
demand therefor unless the court in its discretion orders that, because of the
character, location or quantity of the properties to be condemned, or for other
reasons in the interest of justice, the issue of just compensation should be
determined by a commission of three persons appointed by the court. The rule
further provides that trial of all issues shall otherwise be by the court.
In order to preserve the right to a trial by a jury or commission, a
demand for a jury trial should be filed in all major tract cases and in any other
cases when by reason of special circumstances the Department requests such demand
or the United States Attorney determines that it is in the interest of the United
States that a jury trial should be demanded. Major tracts include all tracts
involving deposits of estimated compensation of $150,000 or more and other tracts
involving claims for compensation in such amounts and tracts in which significant
and complex legal problems may be decided. Under Rule 38(b), Fed.R. Civ.P., a
demand for a jury trial may be endorsed upon a pleading. In the cases referred
to above, the demand for a trial by jury should be endorsed upon the complaint
in condemnation (ENRD Resource Manual at 24 or 25), and notice of the demand should be included in
the notice of condemnation. See ENRD Resource Manual at 27.
As to all pending cases except those in the major-tract program, United
States Attorneys are authorized to waive jury trials if, in their discretion, it
is in the interest of the United States to do so, except when contrary
instructions are issued by the Department as to a particular case. Juries will
be waived in cases in the major-tract program only upon instructions from, or
with the prior consent of, the Department.
If it is subsequently determined that the use of a commission is
advisable, a motion should be made for the appointment of the commission. The
motion should set forth the facts justifying the use of the commission. The
order of court appointing the commission should include a finding of fact by the
court as to the necessity for use of the commission. Instructions with respect
to trial settings, or a hearing before a commission, are set forth in the ENRD Resource Manual at 11.
Should a United States Attorney find it necessary to retain the
services of an independent appraiser, he/she should, before engaging the
appraiser's services, submit to the Department a Form OBD-47,|1663 together with
executed Form USA-157 and, when the appraiser's fee is over $2,500, Form LN-116
(forms are available from the Land Acquisition Section). Instructions with
respect to engaging an appraiser are set forth in the ENRD Resource Manual at 12.
United States Attorneys and field attorneys are required to actively
assist landowners and the court, as amicus curiae, in effecting prompt
distribution of funds deposited into the registry of the court as just
compensation. Duplicate conformed copies of all orders of distribution (ENRD Resource Manual at 41) should be promptly
transmitted to the Department. Rule 71(j), Fed.R. Civ.P., which relates to
distribution, provides that the court and attorneys shall expedite the
proceedings for distribution and for the ascertainment and payment of just
compensation in cases in which a deposit is made. Government counsel should
obtain promptly and furnish to the court all information available as to the
state of the title to the property and any liens, taxes, and encumbrances
thereon. Government counsel should also assist landowners in the preparation of
motions for, and orders of, distribution, see
ENRD Resource Manual at
33 and 41, and affidavits for execution by the
claimants in support of motions for distribution. Care should be taken to see
that a proper order is entered for the payment of all taxes and assessments due
and exigible at the time of vesting of title in the United States. Unless
serious doubt exists as to the real ownership of the property, government counsel
should not delay distribution of just compensation for any extended period for
the procurement of curative material for the elimination of defects of title but
should rely upon the condemnation procedure for that purpose. Instructions with
respect to procedures in disbursing funds deposited in court are set forth in the
ENRD Resource Manual at 13.
After a deposit has been made to the registry of the court and it
becomes necessary to have a part or all of it returned to the government (because
of an abandonment of the case or an overdeposit of estimated compensation), the
check representing such refund must be made payable to the Treasurer of the
United States and forwarded to the Department for distribution to the proper
agencies.
When funds cannot be disbursed because the owner cannot be located, or
for other reasons, an order should be sought, as promptly as the court will
entertain such orders, for the refund of the undistributed balance to the
Treasury of the United States at the expiration of the five-year period pursuant
to 28 U.S.C. § 2042. Action pursuant to this section becomes a ministerial
duty of the clerk of the court, although copies of the order directing the
transfer of funds should be furnished the Department, the clerk of the court will
assume the responsibility for the actual transfer of funds pursuant to the court
order. In the event a subsequent order is entered for a redeposit of the money
for the purposes of withdrawal, it will be the duty of the clerk of the court to
submit the court's order directly to the audit section of the Administrative
Office of the United States Courts for processing with the Treasury Department.
A copy of this order should also be sent to the Departme
nt so that the records of the case will be complete. Although the United States
Attorneys should assist the landowners in filing the motion to redeposit the
funds and advise the court with reference thereto, no further action thereon by
either the United States Attorney or the Department will be required to obtain
the redeposit.
The Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970, approved January 2, 1971, 84 Stat. 1894, requires the
payment by acquiring agencies of moving, replacement, relocation and related
expenses of property owners and for certain expenses incidental to the transfer
of title to the United States, including reimbursement to the owner for the
pro-rata portion of real property taxes paid which are allocable to the period
subsequent to the date of vesting title in the United States or the effective
date of possession of such real property by the United States, whichever is
earlier. Section 102(a) of this Act provides as follows:
The provisions of section 301 of title III of this Act create no
rights or liabilities and shall not affect the validity of any property
acquisitions by purchase or condemnation.
And, Section 102(b) provides as follows:
Nothing in this Act shall be construed as creating in any
condemnation proceedings brought under the power of eminent domain, any element
of value or of damage not in existence immediately prior to the date of enactment
of this Act.
Representatives of acquiring agencies have been instructed to
coordinate their activities under the authorizing statute with representatives
of the Department of Justice to insure that no duplication of payment will
result.
All inquiries by owners or tenants with respect to reimbursements under
this statute should be referred to the local representative of the acquiring
agency. No changes in existing practices and procedures in handling condemnation
cases and particularly in negotiating for settlements in condemnation cases are
required by this authorizing statute. However, United States Attorneys and field
attorneys should advise the local representatives of the acquiring agency of any
case in which an owner or tenant asserts a claim for expenses and other loss and
damage alleged to have been incurred by such owner or tenant as a result of the
moving of themselves, their families and possessions because of the acquisition
of the land. This requirement for notice to representatives of the acquiring
agency is particularly applicable in cases for the condemnation of the temporary
use of property wherein claims may be asserted for moving costs under the rule
established in General Motors Corporati
on v. United States, 323 U.S. 373 (1945).
Immediately after hearing or trial, send executed Form LDN-18
(see ENRD Resource Manual at 62) in
triplicate, together with a detailed report of the trial or hearing to the
Division with specific recommendations for future action.
The usual course of action, when awards materially exceed the
government's testimony, is to move for a new trial, where the award was made by
a jury, or to object to the award made by a commission.Procedures for the United
States Attorneys to follow with respect to motions for new trials and objections
to a commission's award are set forth in the ENRD
Resource Manual at 14.
The United States Attorney or field attorney should take care that
judgments in condemnation cases include an adjudication of all issues within the
jurisdiction of the court. Separate judgments on the several issues in the case
should be avoided whenever possible, thus, for example, an order of distribution
should be included in a judgment determining compensation. Judgments should not
contain recitals of pleadings, reports of commissions or the record of prior
proceedings.
Judgments determining compensation should contain:
- A finding and adjudication of the right of the United States to
condemn the property involved for public use;
- An adjudication that title to the exact estate or interest condemned is
vested in the United States if the declaration of taking procedure has been used,
or, if not, an adjudication that title to the exact estate or interest will vest
in the United States upon payment of the just compensation into the registry of
the court and an order vesting title should be entered;
- Confirmation of the stipulation between the government and the landowners
fixing the amount of just compensation or confirmation of the verdict of the jury
or the award of a commission appointed by the court to determine compensation;
- An accurate legal description of the property, which may be referenced to
the complaint or declaration of taking;
- Whenever possible, a finding and adjudication of the right of the
defendants to distribution of the just compensation;
- Provision for the payment of interest, if any, for which the government may
be legally liable;
- Provision for any refund of money deposited into the registry of the court
to which the government may be entitled; and
- An adjudication of any other issue not previously ruled upon formally by
the court.
Upon the entry of judgments fixing compensation and ordering the
deposit of deficiencies, the United States Attorney shall request the Department
to secure a check for the necessary amount, except in cases where the acquiring
agency is the Department of the Interior, the Departments of the Navy, Army or
Air Force, the General Services Administration, the Nuclear Regulatory Commission
or the National Aeronautics and Space Administration, in which case the request
for the amount of deficiency is sent to a local representative of the acquiring
agency. Instructions for securing deficiency checks are set forth in the ENRD Resource Manual at 15.
In any case where he/she believes substantial error has been committed,
the United States Attorney shall immediately advise the Land Acquisition Section
and give his/her recommendations regarding appeal.
If a United States Attorney wishes to recommend that a judgment be
appealed, he/she should:
- Send one certified and one plain copy of the order of the court
to the Department.
- Prepare a recommendation including a statement of the factual and legal
issues involved, the rulings of the court which may be grounds for an appeal, the
reasons for his/her recommendations and the approximate cost of a transcript of
the testimony. The date from which the time for appeal runs should also be
stated.
- Unless otherwise instructed, file a protective notice of appeal just prior
to the expiration of the time within which such notice may be filed, but not
before then. This is to allow the Department the benefit of the full period of
time for appeal to study the case and reach a decision. Two copies of the notice
of appeal should be forwarded to the Land Acquisition Section immediately after
filing.
The Department will advise the United States Attorney whether to order the
transcript of testimony. Note the instructions at USAM 5-8.000 and in USAM Title 2, regarding the handling of appeals.
Except as set forth in USAM 5-15.620
no case under the jurisdiction of the Land Acquisition Section may be settled or
dismissed without specific or delegated authority from the Attorney General.
Overall settlements for all interest in a tract in a pending
condemnation proceeding are much to be preferred over separate settlements for
partial interests. Offers not including all interests in a tract will be
approved only in exceptional cases and should be explained and justified fully.
Negotiations for compromise settlement always should be attempted, and
should be undertaken by the United States Attorney with the cooperation of the
local office of the acquiring agency. Negotiations should be initiated or
entered into only after the appraisals have been thoroughly examined and found
to be sound. If evaluations vary greatly, then consultations with appraisers
first should be had to clarify or correct any possible misapplication of the
facts or legal principles involved. If the appraisals are not satisfactory, or
vary greatly, the United States Attorney should request authority to engage
additional appraisers, see ENRD Manual at
12.
Settlement should never be sought for statistical purposes. Where
settlement negotiations lead to an offer in any case that is deemed by the
condemnation attorney to be a reasonable reflection of fair market value, in
light of the pertinent appraisal reports, the risks and costs of trial and the
effect of the settlement upon other pending cases, he/she is encouraged to
consummate the settlement with dispatch, if it is within his/her authority to do
so (see USAM 5-15.630), or to furnish
the settlement offer to the Department for approval (see USAM 5-15.640).
Detailed procedures with respect to settlements are set forth in the
ENRD Resource Manual at 17.
On January 14, 1983, by Environment and Natural Resources Division
Directive No. 3-83, the United States Attorneys were authorized, subject to the
limitations imposed in USAM 5-15.631 to accept
or reject offers in compromise, without the prior approval of the Environment and
Natural Resources Division, of claims against the United States for just
compensation in condemnation proceedings in any case in which:
- The gross amount of the proposed settlement does not exceed
$200,000.
- The settlement is approved in writing (the written approval to be retained
in the file of the United States Attorney concerned) by the authorized field
representative of the acquiring agency if the amount of the settlement exceeds
the amount deposited with the declaration of taking as to the particular tract
of land involved;
- The amount of the settlement is compatible with the sound appraisal, or
appraisals, upon which the United States would rely as evidence in the event of
trial, due regard being had for probable minimum trial costs and risks; and
- The case does not involve the revestment of any land or improvements
or any interest, or interests, in land under the Act of October 21, 1942, 56
Stat. 797 (40 U.S.C. § 258f).
The United States Attorney's authority to settle land acquisition cases
may not be exercised when:
- For any reason, the compromise of a particular claim, as a
practical matter, will control or adversely influence the disposition of other
claims totaling more than the respective amounts designated above;
- Because a novel question of law or a question of policy is presented, or
for any other reason, the offer should, in the opinion of the officer or employee
concerned, receive the personal attention of the Assistant Attorney General in
charge of the Environment and Natural Resources Division; or
- The agency or agencies involved are opposed to the proposed closing or
dismissal of a case, or acceptance or rejection of the offer in compromise.
If any of the conditions listed above exist, the matter shall be
submitted for resolution to the Assistant Attorney General in charge of the
Environment and Natural Resources Division.
In Department of the Army acquisitions, the District Engineers have
authority to recommend on behalf of their Department the approval or rejection
of settlements involving payments of $40,000 or less, or for greater amounts
which are not in excess of the fair market value of the land involved as
determined by Department of the Army appraisers. In submitting offers in
compromise which require the payment of sums in excess of the authority of the
District Engineers in cases for the condemnation of land at the request of the
Department of the Army, the United States Attorney or field attorney should urge
the District Engineer promptly to submit his/her recommendation for acceptance
or rejection of the offer to the Office of the Chief of Engineers whose views
will be requested by the Department.
The Naval Facilities Engineering Command of the Department of the Navy
has authorized its Field Divisions to approve or reject on its behalf proposed
settlements or claims not in excess of 10 percent above the deposit in all cases
in which the deposit does not exceed $250,000. As to settlement offers involving
payments in excess of 10 percent above the deposit and in cases wherein the
deposit exceeds $250,000, the United States Attorney should urge the local Field
Division promptly to forward its recommendation to: Commander, Naval Facilities
Engineering Command, Department of the Navy, Washington, D.C. (Attention: Office
of Counsel), whose recommendation will be sought by the Department.
The Regional Commissioners of the General Services Administration have
authority to recommend on behalf of their Administration the approval or
rejection of any settlement offer.Regional Solicitors of the Department of the
Interior have authority to recommend approval or rejection of settlements
involving payments of $500,000 or less. In submitting offers in compromise in
excess of $500,000 the United States Attorney should, in Department of the
Interior cases, request the Regional Solicitor to forward his/her recommendation
to the appropriate officer in his/her agency whose recommendation will be sought
by the Department.
The authority of the above-mentioned field representatives does not
relate to settlements which involve the revestment of the title to portions of
the lands acquired or interest therein. The field representatives should submit
their recommendations as to such offers in the same manner as in settlements
involving payment in excess of their delegated authority.
Every offer of compromise in a condemnation case, with the exception
of those offers within the authority of the United States Attorney to accept or
reject (see USAM 5-15.630), which the
United States Attorney considers may be recommended for acceptance must be
submitted to the Department for consideration and acceptance or rejection. The
United States Attorney or field attorney shall submit with the offer in
compromise:
- His/her recommendation;
- The range of the government's proposed testimony of value in event of trial;
- The probable range of testimony on behalf of the landowner insofar as
known;
- All available appraisal reports; and
- A statement of all other factors pertinent to a determination of the
advisability of accepting or rejecting the proposed settlement.
Whenever feasible, the Department should be advised of the
recommendation of the local representative of the acquiring agency with respect
to the proposed settlement. This recommendation and information should be
submitted in triplicate using Form OBD-43 (ENRD
Resource Manual at 61). See the ENRD Manual at
43 for suggested forms of stipulation and judgment thereon. The forms for
offers involving the revestment of property under 40 U.S.C. § 258f
(see ENRD Resource Manual at 30) must
include the appraisals of the property to be revested and the appraised value of
the interest to be retained by the United States.
Condemnation cases must not be dismissed as to any of the land included
in the instructions to condemn, nor may there be any change as to the interest
or estate to be acquired unless expressly authorized by the Department.
(See USAM 5-15.543 and 5-15.544). Orders of dismissal must be entered
without prejudice. In the absence of a stipulation with the property owner in
which he/she waives the right to costs, the federal court may award to the owner
of any right, title or interest in such real property such sum as will in the
opinion of the court reimburse such owner for his/her reasonable costs,
disbursements and expenses, including reasonable attorney, appraisal, and
engineering fees, actually incurred because of the condemnation proceeding, if
the proceeding is abandoned by the United States. See Section 304(a),
Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970,
Pu
b.L. No. 91-646, approved January 2, 1971, 84 Stat. 1906 (see USAM 5-15.556). The procedure for dismissal is
set forth in Rule 71A(i), Federal Rules of Civil Procedure. Instructions for the
termination of cases instituted to acquire the temporary use of property are set
forth at USAM 5-15.546. See the ENRD Resource Manual at 31 for forms of stipulation
and order.
The selection and approval of appraisers and other experts is a joint
effort of the U.S. Attorney and the Appraisal Unit. U.S. Attorneys should insist
that the acquiring agencies which they represent use only appraisers who have
been approved by the Department as being acceptable for presentation of expert
testimony. Where appraisers who are not adequate for this purpose are employed,
money is wasted, since it will be necessary to expend more money for additional
appraisals of the same property, and the government may be required to change
estimates of value in midstream, thereby impairing settlement opportunities.
Where full cooperation is not being received from an acquiring agency in regard
to the employment of experts, the matter should be referred to the Assistant
Attorney General, Environment and Natural Resources Division, for resolution.
Where expert witnesses' services are necessary, the United States
Attorney must insure that the proposed fee is no more than the customary price
for such services in the area. Where volume appraisal work is given to an
appraiser, the more advantageous fees, which are possible because of volume,
should be secured. In those instances where the United States Attorney is
uncertain as to the appropriate fee for a given assignment, or where an unusually
large fee is involved, the recommendation of the Appraisal Unit should be
obtained. Sound business judgment must be exercised in negotiating for services
to make sure that the United States is getting full value at not more than the
locally prevailing rates. Witness fees must be on a daily rate basis and per
diem rates should be accurately prorated to the faction earned, unless
circumstances make this unfair. Fees for appraisal reports should be negotiated
on a flat fee basis.
| September 1997
| USAM Chapter 5-15
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