The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 8, 2008
No. 08-40372 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
BALDOMERO MUÑIZ; HILARIA MUÑIZ,
Defendants–Appellants.
CONSOLIDATED with
No. 08-40373
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
PAMELA RIVAS,
Defendant–Appellant.
Appeals from the United States District Court
for the Southern District of Texas
Before JOLLY, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:
Baldomero and Hilaria Muñiz and Pamela Rivas (Landowners or
Appellants) own 0.35 acres and 2.48 acres of land respectively on the United
No. 08-40372 & 08-40373
States’ border with Mexico in the Southern District of Texas. The United States
Government sought a temporary right of entry to conduct surveys and perform
other investigatory work in connection with the construction of a planned border
fence. The Government filed a condemnation action in the district court to
acquire a temporary easement. The district court issued condemnation orders
permitting the taking. The Landowners have appealed. We dismiss for lack of
appellate jurisdiction.
I
Congress directed the Secretary of Homeland Security to construct a 370-
mile border fence in priority areas, including the Rio Grande Valley, by
December 31, 2008.1 Pursuant to that directive, the Department of Homeland
Security (DHS) has attempted to acquire land along the border through
negotiation and litigation.
Under 8 U.S.C. § 1103(b),
(1) The Attorney General may contract for or buy any interest in
land, including temporary use rights, adjacent to or in the vicinity
of an international land border when the Attorney General deems
the land essential to control and guard the boundaries and borders
of the United States against any violation of this chapter.
(2) The Attorney General may contract for or buy any interest in
land identified pursuant to paragraph (1) as soon as the lawful
owner of that interest fixes a price for it and the Attorney General
considers that price to be reasonable.
(3) When the Attorney General and the lawful owner of an
interest identified pursuant to paragraph (1) are unable to agree
upon a reasonable price, the Attorney General may commence
condemnation proceedings. . . .
1
Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, sec. 564, § 1103, 121
Stat. 1844, 2090-91 (2007).
2
No. 08-40372 & 08-40373
The Declaration of Taking Act (DTA), 40 U.S.C. § 3114, authorizes the United
States, in a proceeding brought “under the authority of the Federal Government
to acquire land, or an easement or right of way in land, for the public use,” to file
“a declaration of taking . . . declaring that the land is taken for the use of the
Government.”2
The Government filed an action in condemnation against the Muñizes and
Rivas pursuant to 8 U.S.C. § 1103(b) and the DTA. The Government sought
immediate possession of the condemned temporary easement on an ex parte
basis. The Landowners objected, asserting that the Government had not
negotiated with them and that negotiation was a condition precedent to the
Government’s filing of suit under 8 U.S.C. § 1103(b)(3). The district court denied
the Government’s request for ex parte relief and held a hearing.
The district court rejected the Landowners’ objections to the issuance of
the possession orders concluding that the Government had made a bona fide
attempt to negotiate with the Landowners. The district court also issued
possession orders that allowed the Government a temporary easement “to
survey, make borings, and conduct other related investigations” on the
Landowners’ land “to plan the proposed construction of roads, fencing, vehicle
barriers, security lighting, and related structure to help secure the United
States/Mexico border.” These orders permit the Government “to trim or remove
any vegetative or structural obstacles on the property that interfere with the
aforementioned purpose and work.” The amount of compensation to be paid for
the takings has not yet been determined by the district court.
The Landowners appeal the district court’s possession orders. Another
panel of this court previously denied the Landowners’ motion for an emergency
stay, consolidated the Muñiz and Rivas appeals, and ordered that the
2
40 U.S.C. § 3114(a).
3
No. 08-40372 & 08-40373
Government’s motion to dismiss the appeals for lack of appellate jurisdiction be
carried with the case.3
II
Circuit courts of appeal have jurisdiction to review “final decisions” of the
district courts pursuant to 28 U.S.C. § 1291. In Catlin v. United States, the
Supreme Court held that “ordinarily in condemnation proceedings appellate
review may be had only upon an order or judgment disposing of the whole case,
and adjudicating all rights, including ownership and just compensation, as well
as the right to take the property.”4 The right of “appeal on grounds relating to
[the] validity of the taking” can “be exercised when and only when final
judgment, disposing of the cause in its entirety, has been rendered.”5 We have
likewise held “that a condemnation proceeding is not reviewable until after final
judgment disposing of the whole case and adjudicating all rights, including
ownership and just compensation as well as the right to take property.”6
The Government argues that the court lacks appellate jurisdiction since
the district court’s possession orders are not final orders under 28 U.S.C. § 1291.
The Landowners argue that, although the Supreme Court plainly disfavors
interlocutory appellate review, the Supreme Court does not altogether disallow
3
United States v. Muniz, No. 08-40372, slip op. at 2-4 (5th Cir. May 1, 2008) (per
curiam).
4
324 U.S. 229, 233 (1945). Catlin was superseded by a statutory revision of 9 U.S.C.
§ 15 (federal arbitration proceedings), but this revised statute is not relevant here. Thomson
McKinnon Sec., Inc. v. Salter, 873 F.2d 1397, 1398-99 (11th Cir. 1989) (citing six instances in
which orders involving arbitration proceedings and not final within the meaning of 28 U.S.C.
§ 1291 are appealable).
5
Catlin, 324 U.S. at 243.
6
United States v. Richardson, 204 F.2d 552, 555-56 (5th Cir. 1953); see also Dade
County, Fla. v. United States, 142 F.2d 230, 231 (5th Cir. 1944) (stating that the judgment
establishing compensation to be awarded “is the essential and final one”; anything that
“precedes is interlocutory”).
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No. 08-40372 & 08-40373
appellate review and another court of appeals has reviewed interlocutory orders
despite the Catlin finality rule.
The Landowners cite three post-Catlin cases in which a court of appeals
considered a condemnation matter in which no final order had been entered. In
United States v. 58.16 Acres of Land, the Seventh Circuit permitted an appeal
of a possession order where the district court determined that it lacked authority
to consider the validity of a taking.7 However, the Seventh Circuit clearly
expressed that it was not exercising appellate jurisdiction but instead treated
the appeal as an application for a writ of mandamus: “[w]hen stripped of the
procedural trappings that surround this appeal, we think that, in a realistic
sense, the appeal is in the nature of a mandamus.”8 Because the district court
incorrectly “held it had no power to entertain the challenge asserted by the
landowners,” the Seventh Circuit remanded “in the interest of orderly judicial
procedure and to conserve time.”9 Here, the Landowners do not bring an action
in mandamus nor can one credibly be claimed.
In Loughran v. United States, the D.C. Circuit stayed a possession order
and ordered an expedited appeal.10 The property at issue was selected for the
headquarters of the International Monetary Fund, which was created by the
Bretton Woods Agreement in 1945 and has immunity from suit.11 The D.C.
Circuit held that the circumstances in that case made the judgment of the
7
478 F.2d 1055, 1060-61 (7th Cir. 1973).
8
Id. at 1061.
9
Id.
10
317 F.2d 896, 898-99 (D.C. Cir. 1963).
11
Id. at 897-98.
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No. 08-40372 & 08-40373
district court ordering transfer of the property to the district court “final
judgments.”12 The Loughran court’s rationale is as follows:
As a factual matter the property owners would be left with no
means by which to defeat, or to test, the validity of the transfer of
the title. We are of opinion that the United States cannot by a
judgment on the declaration of taking defeat the right of a property
owner to contest in a judicial proceeding the validity of the taking.13
The property at issue in Loughran was to be placed “beyond the power of judicial
process” by transferring it to an entity cloaked with diplomatic immunity.14 The
Loughran court did not endorse a broad exception to Catlin.
However, the Government acknowledges that Washington Metropolitan
Area Transit Authority v. One Parcel of Land15 presents a broader holding.
There, the D.C. Circuit considered a challenge to an order requiring a cemetery
to allow city officials to make test borings during a thirty-day period.16 The D.C.
Circuit noted that Catlin does not require that “no order issued in a
condemnation case can be an appealable order before all the issues raised in the
condemnation proceeding, including just compensation, have been
adjudicated.”17 Instead, “an order of possession is final and subject to review if
it operates to defeat the right of the property owner to challenge the validity of
the taking in the condemnation proceeding.”18 The D.C. Circuit then reached the
12
Id. at 898.
13
Id. at 898-99.
14
Id. at 898.
15
514 F.2d 1350 (D.C. Cir. 1975) (per curiam).
16
Id. at 1351.
17
Id.
18
Id.
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No. 08-40372 & 08-40373
merits and concluded that the possession order was minimally intrusive and
affirmed the district court.19
We cited Washington Metropolitan Area Transit Authority in United States
v. 101.88 Acres of Land to support the proposition that, despite Catlin’s finality
rule, appellate review is appropriate where “the ruling involved is fundamental
to the future conduct of the case.”20 There, we reviewed the district court’s ruling
on a motion to strike certain claims seeking compensation for the alleged taking
of a partly-submerged island that was not formally condemned, because this
ruling “define[d] the content of the case, deciding whether compensation for the
land above water and the submerged land will be measured in the original
proceeding.”21 The present ruling is not of this nature. Only temporary
easements are at issue, and the Landowners will have an adequate opportunity
for appellate review, including an opportunity to challenge the propriety of the
taking, after the district court renders final judgment.22
We note that the landowners did not ask the district court to certify,
pursuant to 28 U.S.C. § 1292(b), that the possession orders “involve[] a
controlling question of law as to which there is substantial ground for difference
of opinion and that an immediate appeal from the order may materially advance
the ultimate termination of the litigation.”23 At oral argument, the Government
asked this court for guidance, given the number of eminent domain proceedings
that have been filed in connection with the construction of the border fence,
19
Id. at 1352-54.
20
616 F.2d 762, 766 (5th Cir. 1980) (internal quotations omitted).
21
Id. at 766-67.
22
See generally United States v. 8.41 Acres of Land, 680 F.2d 388 (5th Cir. 1982).
23
28 U.S.C. § 1292(b) (allowing a court of appeals, in its discretion, to assert jurisdiction
over an interlocutory appeal when such a certification has been made by the district court).
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No. 08-40372 & 08-40373
although it did maintain that there is no jurisdiction over the present appeal.
If the Government does indeed seek guidance, it, like the Landowners, may
request certification under 28 U.S.C. § 1292(b).
The Landowners assert appellate jurisdiction pursuant to 28 U.S.C.
§ 1292(a)(1), which grants this court appellate jurisdiction over “[i]nterlocutory
orders of the district courts . . . granting . . . injunctions.” In United States v.
Garner, we held that orders having the “practical effect” of an injunction are
immediately appealable under § 1292(a)(1).24 The Landowners argue that the
district court’s possession orders have the “practical effect” of an injunction since
the district court required them “to act in ways that are so specific as to be
enforceable by contempt.” We reject this argument. If we accepted the
Landowners’ argument, then any possession order would vest this court with
immediate appellate jurisdiction in every eminent domain proceeding. Such a
scenario would be contrary to Catlin.
* * *
For the foregoing reasons, we DISMISS these appeals for lack of appellate
jurisdiction.
24
United States v. Garner, 749 F.2d 281, 286 (5th Cir. 1985) (citing Carson v. American
Brands, Inc., 450 U.S. 79, 83-84 (1981)).
8