United States v. 4,970 Acres of Land ( 1997 )

United States Court of Appeals,
Fifth Circuit.
No. 97-50351
Summary Calendar.
UNITED STATES of America, Plaintiff-Appellant,
v.
4,970 ACRES OF LAND, MORE OR LESS, SITUATED IN HUDSPETH COUNTY,
State of Texas; C L Ranch, a partnership, Defendants-Appellees.
Dec. 19, 1997.
Appeal from the United States District Court for the Western
District of Texas.
Before REYNALDO G. GARZA, SMITH and BENAVIDES, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
In the condemnation action below, a jury returned a verdict
calculating just compensation as $1,363,000. In accordance with
this verdict, the district court entered judgment calculating just
compensation as $1,363,000 and ordering the United States to pay
that amount to defendant C L Ranch. The United States filed a
motion to alter or amend the judgment, arguing that the district
court's order of payment would prevent the United States from
utilizing its option to abandon the condemnation action under Rule
71A(i)(3). The district court denied this motion, correctly noting
that the United States could not dismiss the condemnation
proceeding under Rule 71A absent a stipulation with the landowner
or a court order.
The United States then filed a motion to dismiss the case
pursuant to Rule 71A(i)(3). Before the district court could
1
consider the motion, however, the United States filed a notice of
appeal from the district court's condemnation judgment and denial
of the United States' motion to alter or amend. The next day,
counsel for the United States requested the district court not to
rule on the motion to dismiss because the United States' notice of
appeal had divested the district court of jurisdiction. The
district court, "in an effort to administratively remove this
motion from the pending motion list," dismissed the motion as moot,
noting that "[t]he Court expressly does not reach the merits of
this Motion." On March 14, 1997, this Court issued a one sentence
order denying the United States' request for an extension of time
to file its brief in the first appeal and dismissed the appeal for
failure to prosecute.
On April 7, 1997, the United States filed a motion in the
district court entitled, "Plaintiff's Motion to Reinstate Its First
Motion for Dismissal Pursuant to Federal Rule of Civil Procedure
71A(i)(3) or, in the Alternative, Plaintiff's Second Motion for
Dismissal Pursuant to Federal Rule of Civil Procedure 71A(i)(3)."
The district court denied this motion on the grounds that it lacked
jurisdiction over the matter. The United States filed a notice of
appeal from this order, and the defendants filed a motion to
dismiss the appeal as frivolous and without merit. This Court
ordered the motion carried with the case.
Discussion
According to Federal Rule of Civil Procedure 71A(i)(3), which
governs dismissal of actions for condemnation by order of court:
2
At any time before compensation for a piece of property has
been determined and paid and after motion and hearing, the
court may dismiss the action as to that property, except that
it shall not dismiss the action as to any part of the property
of which the plaintiff has taken possession or in which the
plaintiff has taken title or a lesser interest, but shall
award just compensation for the possession, title or lesser
interest so taken.
FED.R.CIV.P. 71A(i)(3). It is well established that "the practical
effect of final judgment on the issue of just compensation is to
give the Government an option to buy the property at the
adjudicated price." Kirby Forest Indus., Inc. v. United States,
467 U.S. 1, 4, 104 S. Ct. 2187, 2191, 81 L. Ed. 2d 1 (1984); Danforth
v. United States, 308 U.S. 271, 284, 60 S. Ct. 231, 236, 84 L. Ed.
240 (1939). Accordingly, the government may choose to exercise
this option by tendering payment to the private owner, "whereupon
title and right to possession vest in the United States." Kirby
Forest, 467 U.S. at 4, 104 S.Ct. at 2191. Alternatively, the
government may decide not to exercise this option, in which case
the government may move for dismissal of the condemnation action
pursuant to Rule 71A(i)(3). Id.
The United States' first motion to dismiss was proper under
Rule 71A(i)(3), but the district court never reached the merits of
that motion, instead dismissing it as moot in light of the United
States first notice of appeal. Actually, the district court was
without jurisdiction to consider the motion at that time. See,
e.g., United States v. Green, 882 F.2d 999, 1001 (5th Cir.1989)
(noting that filing of timely and sufficient notice of appeal
transfers jurisdiction over matters involved in appeal from
district court to court of appeals, thus divesting district court
3
of jurisdiction). If the government had not filed a notice of
appeal and the district court had reached the merits of the motion,
however, it would have been a valid exercise of the court's
discretion to dismiss the action pursuant to Rule 71A(i)(3) because
the United States had not yet paid the compensation, even though
the district court had determined its amount in a final order. See
FED.R.CIV.P. 71A(i)(3) (stating that district court may dismiss a
condemnation "[a]t any time before compensation for a piece of
property has been determined and paid....") (emphasis added).
As noted, the Supreme Court has long held that the United
States has the option of abandoning a condemnation action by moving
to dismiss once judgment has become final. See Kirby Forest, 467
U.S. at 4, 104 S.Ct. at 2190-91; Danforth, 308 U.S. at 284, 60
S.Ct. at 236. It does not follow that the government necessarily
forfeits its well established option to move for a dismissal under
Rule 71A(i)(3) by appealing an allegedly erroneous compensation
order. Relative to this option, the district court's order was
equally final before and after appeal. Admittedly, this Court's
dismissal for failure to prosecute of the United States' first
appeal does preclude the United States from arguing error with
regard to the compensation judgment itself and the district court's
denial of the United States motion to alter or amend that judgment.
This Court's dismissal does not, however, prohibit the United
States from exercising its Rule 71A(i)(3) option in the first
place.
Accordingly, this Court's dismissal of the United States'
4
first appeal does not preclude the district court from considering
the government's Rule 71A(i)(3) motion to dismiss, the merits of
which the court did not consider the first time around. This
ruling promotes the important public policy underlying Rule
71A(i)(3) by allowing the government to use public resources in the
most economically efficient manner possible. As the Court stated
in Danforth:
The determination of the award is an offer subject to
acceptance by the condemnor and thus gives to the user of the
sovereign power of eminent domain an opportunity to determine
whether the valuation leaves the cost of completion within his
resources. Condemnation is a means by which the sovereign may
find out what any piece of property will cost.
Id.
Conclusion
In accordance with the long standing rule that the government
has an option to move for dismissal after a final condemnation
judgment, the district court erroneously concluded that it lacked
jurisdiction to consider the United States' motion to dismiss under
Rule 71A(i)(3). This does not mean that the government has an
unlimited ability to draw out or abandon a condemnation action
entirely. On the contrary, a Rule 71A(i)(3) motion to dismiss is
subject to the district court's discretion and the requirement that
the government make payment for any actual taking that occurred,
even if partial or temporary. FED.R.CIV.P. 71A(i)(3). As such, we
hereby DENY the defendants' motion to dismiss this appeal as
frivolous and without merit. Additionally, we REVERSE the district
court's order and REMAND for consideration of the Rule 71A(i)(3)
motion.
5
REVERSED and REMANDED.
6