United States v. 640.00 Acres of Land, More or Less, in the County of Dade, State of Florida and Virginia Land Company, and Unknown Owners

JOHNSON, Circuit Judge,

dissenting:

While I share the majority’s view that the Equal Access to Justice Act is applicable to condemnation proceedings, I must dissent from its conclusion that the landowner is entitled to attorney’s fees in this case as the “prevailing party.” Because there seems to be no doubt that the government has “prevailed” when it takes title to a piece of land following a “straight” condemnation proceeding, I find it impossible to concur in an award of attorney’s fees to the landowner.

Although the majority observes that this is a “straight” condemnation proceeding, both its analysis and those cases on which it relies are based on the expedited condemnation proceeding which is available under 40 U.S.C.A. § 258a. In a Section 258a proceeding, the government obtains title to the land immediately upon filing a declaration of taking and depositing with the clerk of the district court an amount representing its estimate of just compensation. The landowner may accept this amount, thus ending the ease, or he may litigate for a higher rate of compensation. If the amount ultimately awarded is greater than the initial deposit, the government pays the difference, plus interest from the date of deposit. But the title, in such a proceeding, has already been transferred to the government; only the issue of just compensation remains to be litigated. In a Section 258a proceeding, the majority’s theory that the landowner “prevails” if he receives more money than the government deposited is plausible. But this is not the type of case we have before us today.

In a “straight” condemnation under 40 U.S.C.A. § 257 , the government files a complaint in condemnation, but neither takes title to the land nor deposits any money with the district court. The complaint informs the landowner of the government’s desire to take title to the land, and requests the court to make a determination of the just rate of compensation for the land. In some cases the court may determine that the land is not subject to condemnation; in most cases it simply determines the appropriate compensation. Until the actual taking of the property, the government may discontinue or abandon the proceeding since determination of the award is an offer subject to acceptance by the government, giving the government the opportunity to determine whether the valuation makes the cost of the public project financially feasible. A Section 257 condemnation proceeding is merely a means by which the sovereign may find out what a piece of property will cost. Danforth v. United States, 308 U.S. 271 , 60 S.Ct. 231 , 84 L.Ed. 240 (1939); United States v. 2,175.68 Acres of Land, 696 F.2d 351 , 355 (5th Cir.1983). See also Albrecht v. United States, 329 U.S. 599, 602-03 , 67 S.Ct. 606, 608 , 91 L.Ed. 532 (1947).

The “straight” condemnation proceeding is thus completely different from a pro *852 ceeding under 40 U.S.C.A. § 258a. A straight condemnation (Section 257) proceeding is sought not to dispute a price submitted by the government, but to establish the proper price. It is not conducted after the transfer of title; it provides the predicate for the transfer of title. If the price arrived at by the court is more than the government is willing to pay, it may abandon the condemnation proceeding and allow the landowner to keep the land.

To me this clearly demonstrates that when the government takes title following a “straight” condemnation proceeding, it has “prevailed” in every sense of the word. It has taken title to the land that it initially sought, and it has received the calculation of just compensation that it initially requested. As the government’s complaint in a “straight” condemnation neither establishes nor accompanies the deposit of a price for the land, the fact that the government might have preferred a lower price— or might have offered one to the landowner prior to commencing the condemnation proceeding — has no relevance to the outcome of the proceeding. The landowner who has received a higher rate of compensation than the government might have preferred has not prevented the government from achieving either of its objectives in filing the action.

This interpretation of “prevailing party” is, moreover, the only one which is consistent with 42 U.S.C.A. § 4654 , the pre-exist-ing statute governing the award of attorney’s fees in “straight” condemnation cases. That provision states that a landowner may recover costs and litigation expenses, including attorney’s fees, in condemnation cases in which the government’s power to take the land is denied or in which the government abandons the condemnation proceeding. The majority contests the charge of inconsistency, stating that its interpretation of “prevailing party” under the EAJA only “supplements” the awards available under Section 4654. But there is no doubt that the majority’s position is inconsistent insofar as it alters the congressional judgment implicit in Section 4654 as to when a landowner may be said to have prevailed in a “straight” condemnation proceeding. See United, States v. 329.73 Acres, Grenada and Yalobusha Ctys, 704 F.2d 800, 816 (5th Cir.1983) (Rubin, J., dissenting). Such interference with the preexisting statutory scheme, which is proscribed by the “saving” and “exceptions” clauses of the EAJA, 28 U.S.C.A. § 2412 (d)(1)(A), can be avoided by the recognition that, when the government takes title to land following a “straight” condemnation proceeding, it “prevails” under the EAJA as well as under Section 4654.