Petition — Georgia-Pacific Corp. v. United States

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— MICHAEL RODAK, N. CLERK

IN THE

Supreme Court uf the Nuited States

OcToBER TERM, 1977

*

No. 7771514

GEORGIA-PACIFIC CORPORATION,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF CLAIMS

ANGELO A. IADAROLA

1735 New York Avenue, N.W.

Washington, D.C. 20006

(202) 833-9800

Attorney for Petitioner

Of Counsel:

WILKINSON, CRAGUN & BARKER

April 24, 1978

WILSON - Eres PRINTING Co.. INC. . 769-0096 . WASHINGTON. D.C. 20001

INDEX

Page

D A..... ee Ee 1

EC rr 1

Questions Presented ORTEGA 2

Statutory Provisions Involved! 3 2

, ...... 2

Reasons for Granting the Writ 5

I. The Decision of the Court of Claims Raises Fun-

damenta! Questions of Federal Law on Which

A 5

A. The Decision Below Expands the Jurisdic-

tion of Federal District Courts over Claims

Against the Sovereign Without the Requi-

site Congressional Waiver of Sovereign Im-

t 3 5

B. The Erroneous Expansion of Distriet Court

Jurisdiction has no Basis in Prior Decisions

r SRE as FENCE SOP CR 10

C. The Decision Below Contravenes Specific Con-

gressional Policy by Depriving Petitioner of

its Statutory Right to Reimbursement of

EE LS EN OD 12

II. The Decision of the Court of Claims is in Con-

flict with Decisions of the United States Court

of Appeals for the Ninth Circuit 13

. rere 15

ii

TABLE OF AUTHORITIES

Cases:

American Fire & Cas. Co. v. Finn, 341 US. 6

Fr

Bruen v. Pfeifer Oil Transp. Co., 361 U.S. 129

(1959) . le

Cleveland Chair Co. v. United States, 526 F.2d 497

(6th Cir. 19755 1

Dugan v. Rank, 872 U.S. ST AE

First State — & Trust Co. v. Sand Springs

State Bam, 528 F.2d 350 (10th Cir. 19765

Florida Beaches v. Niagara Inv. Co., 148 F.2d 963

e n. ·!..

Ickes v. Foz, 800 U.S. 82 (1987

Ledford v. Corps of Engineers, 500 F.2d 26 (6th

tat ae eRe ne Ae

Maguire v. Trans World Airlines, Inc., 408 F. Supp.

ca SP ee

McMahon v. United States, 342 U.S. 25 (19517

Meyer v. United States, 150 F. Supp. 314, 138 Ct.

,

Minnesota v. United States, 305 U.S. 382 (1939)

Ove Gustavsson Contracting Co. v. Floete, 278

F.2d 912 (2d Cir.), cert. denied, 364 U.S. 894

r oe

Peerless Coal Co. v. United States, No. 102-76 (Ct.

r sec

Philips v. United States, 206 F.2d 867 (9th Cir.

.

Rothensies v. Electric Battery Co., 329 U.S. 296

r

Schillinger v. United States, 155 U.S. 163 (1894)

State Road Dep’t of Florida v. United States, 166

e

Turtzo v. United States, 347 F. Supp. 336 (E. D.

D Pa ee a ee ree

United States v. Certain Land, 203 F. Supp. 454

SR TIES RA

United States v. Certain Parcel of Land, 51 F.

& Ff, i \ 5 |

Page

7

10

D ESSE ESL TE | A

111

TABLE OF AUTHORITIES—Continued

United States v. Certain Space, 320 F. Supp. 491

(N. D. N. V. 1969), aff'd, 485 F.2d 872 (2d Cir.

1970), cert. denied, 402 U.S. 908 (1971) ............

United States v. Coleman, 390 U.S. 599 (1968)

United States v. Dow, 357 U.S. 17 (1958)

United States v. Drinkwater, 484 F. Supp. 457

(E.D. Va. 1977) ... =

United States v. 534.7 Acres of Land, 157 F.2d 828

. xx ..

United States v. 40.60 Acres of Land, 483 F. 2d 927

r .

United States v. 422,978 Square Feet of Land, 445

F.2d 1180 (9th Cir. 1971). é

United States v. Georgia-Pacific Corp., 562 F.2d

294 (4th Cir. 1977)

United States v. John li Estate, 91 F.2d 93 (9th

Cir.), cert. denied, 302 U.S. 746 (1987)

United States v. King, 395 U.S. 1 (1969)

United States v. Michel, 282 U.S. 656 (1931).

United States v. 967,905 Acres of Land, 447 F. 2d

764 (8th Cir. 1971), cert. denied, 405 U.S. 974

KK» ne Oe ANE mee

United States v. 1,440.85 Acres of Land, 488 F.

SS

United States v. Shaw, 309 U.S. 495 (1940)

United States v. Sherwood, 312 U.S. 584 (1941)

United States v. Shingle, 91 F.2d 85 (9th Cir.),

cert. denied, 302 U.S. 746 (1937) .

United States v. Testan, 424 U.S. 392 (1976)...........

United States v. 3.66 Acres of Land, 426 F. Supp.

e A

United States v. United States Fidelity & Guaranty

Co., 809 U.S. 506 (1940)

Wilkinson v. United States, 365 U.S. 899 (1961)

Statutes:

Page

5, 10, 11, 12

10

14

—

* cw

—

0 a «oe ano 0

28 U.S.C. § 1346 (a) (2) (1970) 2, 8, 5, 11

28 U.S.C. § 1346 (f) (Supp. V 1975)

iv

TABLE OF AUTHORITIES—Continued IN THE

Page Supreme Court of the United States

28 U.S.C. § 1407 (1970) 8

28 U.S.C. § 1491 (Supp. V 1975) 2, 3, 5, 11

28 U.S.C. § 1506 (1970) 2,7

28 U.S.C. § 1255(1) (1970)... * 7 *

K 14

28 U.S.C. § 2409 a (a), (b) (Supp. V 1975) 2.9 |

28 U.S.C. § 2501 (197) 14 |

40 U.S.C. § 258a (1970) 855 en 2. 3 |

42 U.S.C. § 4654 (e 190m — 2. 5, 12, 18 GEORGIA-PACIFIC CORPORATION, —

Petitioner,

Miscellaneous: v.

H.R. Rep. No. 1559, 92d Cong., 2d Ser. 7 (1972),

reprinted in [1972] US. Code Cong. & Ad. News UNITED STATES OF —_—_

4547, 4552 9-10 espondent.

LIST OF APPENDICES PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF CLAIMS

A. Opinion of the United States Court of Claims. A-1

Petitioner, Georgia-Pacific Corporation, petitions that

a writ of certiorari issue to review the judgment and

opinion of the United States Court of Claims.

OPINION BELOW

The opinion of the United States Court of Claims is

reported at 568 F.2d 1316 and appears as Appendix A

hereto.

JURISDICTION

The Court of Claims entered judgment on January 25,

1978. Petitioner invokes this Court’s jurisdiction under

28 U.S.C. § 1255(1) (1970).

2

QUESTIONS PRESENTED

l(a). Whether a Tucker Act claim of inverse con-

demnation involving over $10,000, within the sole juris-

diction of the United States Court of Claims (28 U.S.C.

§§ 1346 (a) (2), 1491), may properly be referred by the

Court of Claims on grounds of “efficiency, expedition, and

inexpensiveness” to a federal district court entertaining a

condemnation action against the same property (28 U.S.C.

1358; 40 U.S.C. § 258a), which action was filed by the

United States almost seven months after the landowner’s

suit in the Court of Claims; or

1(b). Whether, absent a specific statutory grant, a

jurisdictional basis exists in the federal district courts to

entertain Tucker Act inverse condemnation claims against

the United States which clearly exceed $10,000.

2. Whether a landowner, having properly brought a

Tucker Act claim of inverse condemnation of over $10,000

before the United States Court of Claims, may be de-

prived of its right to reimbursement of litigation ex-

penses under 42 U.S.C. f 4654(c) by reference of its

claim to a federal district court entertaining a later-filed

condemnation action against the same property.

STATUTORY PROVISIONS INVOLVED

The statutory provisions involved in this proceeding

are 28 U.S.C. §§ 1346(a)(2), 1491 (1970 & Supp. V

1975) and 42 U.S.C. § 4654(c) (1970). Also relevant are

28 U.S.C. §§ 1346 (f), 1358, 1506, 2409a(a), (b) (1970

& Supp. V 1975). These sections appear as Appendix B

to this petition.

STATEMENT OF THE CASE

On August 22, 1975, petitioner Georgia-Pacific Cor-

poration filed this action in the United States Court of

28 U.S.C. §§ 1346 (a) (2), 1491 (1970 & Supp. V 1975).

The United States denied all allegations of inverse con-

demnation.

U.S.C. § 1858 (1970), and 40 U.S.C. § 258a (1970), en-

compassing the same property as that in petitioner’s

action before the Court of Claims.’

The condemnation proceeding in the district court was

and continues to be based upon a March 5, 1976, date of

taking; on this date, the United States was granted pos-

session pursuant to the dictates of the Declaration of

Taking Act, 40 U.S.C. § 258a (1970). Petitioner, how-

Although Georgia-Pacific did not specify a claim amount in its

petition before the Court of Claims, the claim far exceeds $10,000.

Indicative is the fact that in the subsequently filed action in district

court, the United States deposited $3,500,000 to acquire possession

and title under the Declaration of Taking Act, 40 U.S.C. § 258a

(1970). United States v. 9,268.52 Acres of Land, Civ. No. 76-0045

BL (S.D. W. Va., filed March 5, 1976).

* See Georgia-Pacific Corp. v. United States, 568 F.2d 1316,

1318 (Ct. Cl. 1978), App. A, at A-2.

4

ever, had already alleged an earlier date of taking in

the Court of Claims proceeding. Recognizing that a find-

ing of inverse condemnation by the Court of Claims

would nullify any district court determination of just

compensation, petitioner requested that the district court

stay its valuation proceeding until the Court of Claims

had exercised its Tucker Act jurisdiction and decided

whether the United States had taken the subject property

between 1974 and 1975 by inverse condemnation.’ The

district court, without opinion, denied petitioner’s motion

on June 4, 1976, and the United States Oourt of Ap-

peals for the Fourth Circuit dismissed Georgia-Pacific’s

appeal from that denial. United States v. Georgia-Pacific

Corp., 562 F.2d 294 (4th Cir. 1977).

Meanwhile, in the Court of Claims, the United States

and the petitioner moved for summary judgment with

respect to the issue of liability. The United States ini-

tially moved for summary judgment on May 24, 1976. On

June 22, 1976, Georgia-Pacific moved to deny the motion

for summary judgment as premature, or in the alterna-

tive for an enlargement of time within which to pursue

discovery so as to respond to the motion. On January 17,

1977, petitioner responded to the United States motion

and cross-moved for summary judgment. The Court of

Claims granted neither motion, concluding that “a hard

residue of factual dispute . . . would first have to be tried

and determined in the Trial Division.” *

* As petitioner pointed out then and as the Court of Claims itself

noted, for the district court to have then proceeded with the case

would be to run the risk of contemporaneous litigation in two courts.

Moreover, the litigation in the district court would prove utterly

wasteful and unnecessary if Georgia-Pacific prevailed in the Court

of Claims. See Georgia-Pacific Corp. v. United States, supra, 568

F.2d at 1321, App. A at A-8.

* Georgia-Pacific Corp. v. United States, supra, 568 F.2d at 1318-

19, App. A, at A-3.

Rather than send the case to the Trial Division, the

Court of Claims, sua sponte, suspended further proceed-

ings and referred petitioner to the federal district court

for resolution of its inverse condemnation claim.“ Relying

on United States v. Dow, 357 U.S. 17 (1958), the Court

of Claims ruled that the district court had “authority”,

presumably meaning jurisdiction: (1) to determine

whether the taking preceded March 5, 1976, the date the

United States filed its condemnation action and declara-

tion of taking, and (2) if it found an earlier taking, to

value the property as of that prior date and award com-

pensation against the United States in excess of 810,000.“

REASONS FOR GRANTING THE WRIT

I. The Decision of the Court of Claims Raises Fundamen-

tal Questions of Federal Law on Which this Court

Should Rule

A. The Decision Below Expands the Jurisdiction of

Federal District Courts over Claims Against the

Sovereign Without the Requisite Congressional

Waiver of Sovereign Immunity

Under the Tucker Act, 28 U.S.C. §§ 1346 (a) (2), 1491

(1970 & Supp. V 1975), Congress has waived the sov-

ereign immunity of the United States and conferred

concurrent jurisdiction in federal district courts and the

Court of Claims in certain defined cases where the claim

does not exceed $10,000. In cases where the claim ex-

ceeds $10,000, the congressional waiver of sovereign im-

5 Jd. at 1319, 1322, App. A, at A-4, A-11.

*568 F.2d at 1319, App. A, at A-4. While aware of petitioner’s

claim for litigation expenses under 42 U.S.C. § 4654(c) (1970), the

Court of Claims did not treat this issue in its disposition of the

suit. This section extends to the landowner the right to reimburse-

ment of reasonable attorney, appraisal and other fees after suc-

cessful prosecution of an action under 28 U.S.C. §§ 1346(a) (2) or

1491 (1970 & Supp. V 1975).

munity and the accompanying jurisdictional grant ex-

tend only to the United States Court of Claims. The

instant case arises under the Tucker Act and presents

significant issues of jurisdiction and sovereign immunity.

In considering whether to issue a writ of certiorari, this

Court has noted that “the question of the jurisdiction of

the District Court under the Tucker Act [is] of public

importance.” United States v. Sherwood, 312 U.S. 584,

586 (1941). This Court, as the final authority on the

—2 court system, should resolve these complex ques-

ons.

This Court has long recognized that the United States

may not be sued without specific statutory consent. E. g.,

Dugan v. Rank, 372 U.S. 609, 610-11, 617 (1963);

United States v. Sherwood, 312 U.S. 584, 586 (1941);

Ickes v. Fox, 300 U.S. 82, 96 (1937). Further, this

Court has repeatedly held that “statutes which waive im-

munity of the United States from suit are to be construed

strictly in favor of the sovereign.” McMahon v. United

States, 342 U.S. 25, 27 (1951). Thus “a waiver cannot

be implied but must be unequivocally expressed.” United

States v. King, 395 U.S. 1, 4 (1969). See also United

States v. Michel, 282 U.S. 656, 660 (1931); Schillinger

v. United States, 155 U.S. 163, 166 (1894). This inter-

pretive guideline has been applied specifically to the

Tucker Act. United States v. Testan, 424 U.S. 392, 399

(1976) ; United States v. King, 395 U.S. 1, 4 (1969);

United States v. Sherwood, 312 U.S. 584, 590 (1941).

Moreover, the Supreme Court has held that private

litigants must comply with jurisdictional limitations in

statutory waivers of sovereign immunity. E.., United

States v. Shaw, 309 U.S. 495, 501 (1940). “[I]t rests

with Congress to determine not only whether the United

States may be sued, but in what courts the suit may be

brought.” Minnesota v. United States, 305 U.S. 382, 388

7

(1939). Through the Tucker Act, Congress has unam-

biguously granted exclusive jurisdiction to the Court of

Claims in actions exceeding $10,000."

In referring petitioner’s inverse condemnation claim to

federal district court, the Court of Claims has subjected

the United States to suit and required Georgia-Pacific

to litigate its action in forum that clearly could never

possess jurisdiction over petitioner’s inverse condemna-

tion claim as a separate action.“ The fundamental issue

posed in this case, therefore, is whether the subsequent

filing by the United States of a complaint in condemna-

tion before a district court somehow transforms a land-

owner’s already-filed inverse condemnation action so as

to allow its transfer consistent with the Tucker Act from

the Court of Claims to federal district court; or viewed

7 Jurisdiction cannot be expanded by agreement, waiver or consent

of the parties. F. g., American Fire & Cas. Co. v. Finn, 341 U.S. 6,

17-18 & n.17 (1951); First State Bank & Trust Co. v. Sand Springs

State Bank, 528 F.2d 350, 354 (10th Cir. 1976); Maguire v. Trans

World Airlines, Inc., 403 F. Supp. 734, 743-44 (S.D.N.Y. 1975).

The Court of Claims acknowledged jurisdiction over petitioner's

claim of inverse condemnation. Georgia-Pacific Corp. v. United

States, 568 F.2d 1316, 1322 (Ct. Cl. 1978), App. A, at A-11. Hav-

ing acknowledged jurisdiction, no vehicle exists for “transfer” of the

suit to federa! district court. Congress has provided for transfer of

an action by the Court of Claims only when that court concludes

that it has no jurisdiction over the claim but that jurisdiction is

proper elsewhere. 28 U.S.C. § 1506 (1970).

* A complaint filed in federal district court would have been sum-

marily dismissed for want of jurisdiction since under the Tucker

Act the United States has not consented to suits in excess of $10,000

in that forum. See, e.g., Cleveland Chair Co. v. United States, 526

F.2d 497, 499 (6th Cir. 1975); Ove Gustavsson Contracting Co. v.

Floete, 278 F.2d 912, 914 (2d Cir.), cert. denied, 364 U.S. 894

(1960) ; State Road Dep't of Florida v. United States, 166 F.2d 843,

844 (5th Cir. 1948) ; Turtzo v. United States, 347 F. Supp. 336, 339

(E.D. Pa. 1972).

Interestingly, this principle was recognized by the Court of Claims

only one week after its decision in the instant case. Peerless Coal

Co. v. United States, No. 102-76 (Ct. Cl. Feb. 3, 1978).

from a somewhat different perspective, whether initiation

of a condemnation action by the United States in fed-

eral district court constitutes a waiver of sovereign im-

munity that expands the district court’s statutorily pre-

scribed jurisdiction over claims against the United States.

In the instant case, the Court of Claims has concluded

that considerations of “efficiency, expedition, and inexpen-

siveness” supersede the congressional mandate of the

Tucker Act and thus the court has required petitioner

to litigate its inverse condemnation claim in federal dis-

trict court in response to the government’s complaint in

condemnation. Centralization of these two proceedings

clearly exceeds the statutory waiver of sovereign im-

munity under the Tucker Act.“ The decision below thus

conflicts in principle with this Court’s holding in United

States v. United States Fidelity & Guaranty Co., 309 U.S.

506, 513 (1940): “The desirability for complete settle-

ment of all issues between parties must, we think, yield to

the principle of immunity.” *

0 Georgia-Pacific Corp. v. United States, 568 F.2d 1316, 1321

(Ct. Cl. 1978), App. A, at A-8.

n Unification of litigation, although a touchstone of practice under

the federal rules, may well be inapplicable when the United States

is a party to the suit. In fact, the examples cited by the Court of

Claims—“the theory of the compulsory counterclaim” and “the crea-

tion of the Judicial Pane! on Multidistrict Litigation”—are singu-

larly inappropriate here. See Georgia-Pacific Corp. v. United States,

supra, 568 F.2d at 1321, App. A, at A-9. A counterclaim against

the United States cannot exceed the jurisdictional limit of $10,000

that would apply if the claim were brought separately in federal

district court as a direct claim. United States v. 40.60 Acres of

Land, 483 F.2d 927, 928 n.1 (9th Cir. 1978). The benefits to be

derived from employment of the judicial panel on multidistrict liti-

gation can only be reaped in civil actions pending in different fed-

eral district courts; the United States Court of Claims lies outside

the ambit of this scheme. 28 U.S.C. § 1407 (1970).

* Also instructive in considering the conflict between jurisdic-

tional limitations upon Tucker Act condemnation related claims and

efficiency considerations are United States v. 967,905 Acres of Land,

Congress has not been unmindful of the occasional bi-

furcation of suits required by the Tucker Act. Only re-

cently, at the time Congress conferred plenary jurisdic-

tion upon the federal district courts in quiet title actions

against the United States, provision was also made for

the determination of all just compensation issues in the

same action in the event title was found to be in the

private landowner and the government elected to retain

possession. 28 U.S.C. §§ 1346 (f), 2409a(a),(b) (Supp.

V 1975). Realizing that, theretofore, a plaintiff could

receive just compensation in excess of $10,000 only if

an additional suit was filed in the Court of Claims, Con-

gress provided a specific statutory exception to the

Tucker Act. Under 28 U.S.C. § 2409a(b) (Supp. V 1975),

a federal district court not only can quiet title, but also

can award unlimited compensation for the government’s

takings, past and future, thereby making unnecessary a

second suit in the Court of Claims.”

447 F.2d 764, 768-69 (8th Cir. 1971), cert. denied, 405 U.S. 974

(1972); Philips v. United States, 206 F.2d 867, 869-70 (9th Cir.

1953), rev'g United States v. 266.38 Acres of Land, 96 F. Supp. 647

(W.D. Wash. 1951); United States v. 1,440.35 Acres of Land, 438

F. Supp. 1070, 1074 (D. Md. 1977); United States v. 3.66 Acres of

Land, 426 F. Supp. 533, 587 & n.3 (N.D. Cal. 1977); United States

v. Certain Parcel of Land, 51 F. Supp. 726, 727 (E.D.N.Y. 1943).

Each of these decisions underscores the primacy of jurisdictional

limitations.

18 The legislative history of 28 U.S.C. § 240%(b)(Supp. V 1975),

and its related provisions including 28 U.S.C. § 1346(f) (Supp. V

1975), clearly indicates that Congress amended the Tucker Act to

prevent bifurcation of quiet title actions. In discussing the final bill,

the House report states:

If the United States were adjudged to be occupying without

title, the Justice Department concluded that it is only fair to

require it to choose between acquiring the right of possession

and ceasing to occupy the land. As it has been noted, it pres-

ently is possible under the Tucker Act provisions of section

1346 of title 28, for a land owner to assert a claim for com-

pensation for the acquisition of property by the Government.

The difference in the remedy provided by this bill is that the

10

Nothing short of yet another specific statutory excep-

tion to the Tucker Act can justify reference of the pres-

ent case to a federal district court.

B. The Erroneous Expansion of District Court Juris-

diction has no Basis in Prior Decisions of this Court

The Court of Claims based its decision in large part

on the holding of this Court in United States v. Dow,

357 U.S. 17 (1958). The Court of Claims has severely

misapplied the Dow decision, and the effect thereof re-

quires review and clarification by this Court. FE. g.,

Wilkinson v. United States, 365 U.S. 399, 401 (1961) ;

Braen v. Pfeifer Oil Transp. Co., 361 U.S. 129, 130

(1959).

The reliance of the Court of Claims on Dow is mis-

placed. Dow did not involve or address the jurisdiction

of federal district courts as condemnation tribunals.

It dealt only with what constituted the act of taking and

when a claim for just compensation arising therefrom

vested.” The Court ruled that a just compensation claim

district courts would have jurisdiction without regard to any

jurisdictional amount such as that contained in section 1346

(a)(2). Accordingly a district court could resolve the complete

matter in one proceeding.

(Emphasis added.) H.R. Rep. No. 1559, 92d Cong., 2d Sess. 7

(1972), reprinted in [1972] U.S. Code Cong. & Ad. News 4547, 4552.

— States v. Drinkwater, 434 F. Supp. 457, 463 (E. D. Va.

* Georgia-Pacific Corp. v. United States, 568 F.2d 1316, 1319-21

(Ct. Cl. 1978), App. A, at A-4 to A-7.

1 In Dow, the United States had instituted condemnation proceed-

ings in March 1943, pursuant to the predecessor of 28 U.S.C. § 1358

(1970). Under title II of the Second War Powers Act of March 27,

1942, 56 Stat. 176, 177, the district court granted the United States

immediate possession, and the government entered into “physical

possession” of the property within the next 10 days. Some three

years later, in May 1946, the government filed a declaration of tak-

ing and formally acquired title. 357 U.S. at 18-19.

11

vests when the United States acquires possession, hold-

ing: “The usual rule is that if the United States has

entered into possession of the property prior to the acqui-

sition of title, it is the former event which constitutes

the act of taking.” 357 U.S. at 22. No claims of inverse

condemnation were involved. Thus Tucker Act jurisdic-

tion of the federal district courts was not an issue.

Under either potential valuation date in Dow, district

court jurisdiction had been invoked by the United States

and was proper under what was then the equivalent of

28 U.S.C. § 1358 (1970).*

Nonetheless, Dow did point out that federal court juris-

diction over any inverse condemnation claim was under

the Tucker Act.“ Thus the extent of district court juris-

diction over a claim of inverse condemnation can be no

greater than as specified in the Tucker Act—i.e., claims

% The present section 1358 of title 28 is derived from and based

upon 40 U.S.C. § 257 (1940 ed.) which in turn was a codification of

the Act of August 1, 1888, ch. 728, § 1, 25 Stat. 357, as amended,

Act of March 3, 1911, ch. 231, § 291, 36 Stat. 1167. The Court noted

in Dow that the United States had brought suit, in March 1943,

under, inter alia, “the Act of August 1, 1888, 25 Stat. 357, 40 U.S.C.

§ 257.” 357 U.S. at 18.

It is clear that 28 U.S.C. § 1358 (1970) will not support an inverse

condemnation claim against the United States. F.., Turtzo v.

United States, 347 F. Supp. 336, 337 (E.D. Pa. 1972). As succinctly

put in Ledford v. Corps of Engineers, 500 F.2d 26, 28 (6th Cir.

1974) :

This provision [28 U.S.C. § 1358) of the Judiciary Act was

intended as a grant of jurisdiction to the district courts of

actions brought by the United States and not of actions that

might have an eminent domain nexus brought against the

government.

(Emphasis in original.) See also Florida Beaches v. Niagara Inv.

Co., 148 F.2d 963 (5th Cir. 1945).

„Under the first method—physical seizure—no condemnation

proceedings are instituted, and the property owner is provided a

remedy under the Tucker Act, 28 U.S.C. §§ 1846(a)(2) and 1491,

to recover just compensation.” 357 U.S. at 21.

12

for less than $10,000. And, therefore, inverse condemna-

tion claims for amounts in excess of $10,000 are proper

only in the Court of Claims. Dow cannot be cited to

justify the decision below.

C. The Decision Below Contravenes Specific Congres-

sional Policy by Depriving Petitioner of its Statu-

tory Right to Reimbursement of Litigation Expenses

Congress, through 42 U.S.C. § 4654(c) (1970), has ex-

tended to a landowner the right to reimbursement of

reasonable attorney, appraisal and other fees upon suc-

cessful prosecution of a Tucker Act claim of inverse con-

demnation. By granting the right to reimbursement of

litigation expenses, Congress sought to alleviate the finan-

cial burden accompanying successful prosecution of in-

verse condemnation suits. The holding of the Court of

Claims in the instant case effectively nullifies this intent

and subverts the clearly expressed congressional policy.

For that reason, a writ of certiorari should issue. See

United States v. Coleman, 390 U.S. 599, 604-05 (1968) ;

Rothensies v. Electric Battery Co., 329 U.S. 296, 302-03

(1946).

Had petitioner been successful in its Tucker Act claim

of inverse condemnation before the Court of Claims, it

would have been entitled to reimbursement of reasonable

attorney, appraiser and other fees pursuant to 42 U.S.C.

§ 4654(c) (1970). In referring petitioner’s claim to dis-

trict court, the Court of Claims has deprived petitioner

of its statutory right to reimbursement of these litigation

expenses. This deprivation results from the Court of

Claims having erroneously found a non-Tucker Act juris-

dictional basis in the district court for petitioner’s inverse

condemnation claim (so-called broad condemnation court

authority). Under this ruling, the United States would

be able to divest any future inverse condemnation plain-

™* Georgia-Pacific Corp. v. United States, 568 F.2d 1316, 1320-21,

1322 (Ct. Cl. 1978), App. A, at A-6 to A-7, A-10.

13

tiff of the right to reimbursement of litigation expenses

by subsequently filing a complaint in condemnation in

district court. Even if the district court were to find an

earlier date of taking (i.e, an inverse condemnation),

the rationale of the Court of Claims would dictate that,

as a “condemnation court” having alleged jurisdiction

under 28 U.S.C. § 1858 (1970), it could not award liti-

gation expenses since 42 U.S.C. § 4654(c) (1970) applies

only to courts acting under and exercising their Tucker

Act jurisdiction.

II. The Decision of the Court of Claims is in Conflict with

Decisions of the United States Court of Appeals for

the Ninth Circuit

The United States Court of Appeals for the Ninth Cir-

cuit has addressed the precise jurisdictional issue posed

in this case and has concluded that a condemnee cannot

assert an inverse condemnation or earlier date of taking

claim for an amount exceeding $10,000 in the district

court in which the United States has filed a complaint

in condemnation. In United States v. Shingle, 91 F.2d

85 (9th Cir.), cert. denied, 302 U.S. 746 (1937), and

United States v. John li Estate, 91 F.2d 93 (9th Cir.),

cert. denied, 302 U.S. 746 (1937), the United States

sought to condemn privately owned fishing rights. De-

fendants filed answers claiming just compensation for

the government’s alleged taking of fishing rights prior

to the institution of the condemnation proceedings. Argu-

ing that naval regulations previously had prohibited them

from fishing in part of the area subject to condemnation,

defendants persuaded the district court to award com-

pensation in excess of $10,000 for the earlier “partial

taking.” 91 F.2d at 87 & n.2. The Court of Appeals

reversed the awards on the grounds that defendants had

their remedy under the Tucker Act and not in the normal

condemnation action. Shingle, 91 F.2d at 89; John Ji

Estate, 91 F.2d at 94.

14

More recently the United States Court of Appeals for

the Ninth Circuit has reaffirmed this decisional principle.

In United States v. 422,978 Square Feet of Land, 445

F.2d 1180 (9th Cir. 1971), the State of California

claimed that the United States had taken the property at

issue prior to the government’s complaint in condemna-

tion. The Court of Appeals affirmed the district court’s

dismissal of the state’s claim, holding that the state’s

only remedy was under the Tucker Act and that the state

had not filed suit within the six-year statute of limita-

tions prescribed by 28 U.S.C. §§ 2401, 2501 for the

Tucker Act actions. 445 F.2d at 1187-89."

The instant decision directly conflicts with the afore-

mentioned rulings of the Court of Appeals for the Ninth

Circuit. The holding that petitioner must litigate its

Tucker Act claim in the district court condemnation pro-

ceeding cannot be reconciled with determinations by the

Ninth Circuit that a district court does not have juris-

diction over prior date of taking claims exceeding

$10,000. This conflict of decisions, involving as it does

important questions of federal law and federal court

jurisdiction, necessitates resolution by this Court.

See also Philips v. United States, 206 F.2d 867, 869-70 (

Cir. 1953); United States v. 584.7 Acres of Land, 157 F.2d 828,

831 (5th Cir. 1946) ; United States v. Certain Space, 320 F. Supp.

491, 497 (N.D.N.Y. 1969), aff'd, 435 F.2d 872 (2d Cir. 1970), cert.

denied, 402 U.S. 908 (1971); United States v. Certain Land, 203

F. Supp. 454, 458 (S.D.N.Y. 1958); Meyer v. United States, 150

F. Supp. 314, 316-17, 188 Ct. Cl. 86, 89 (1957).

15

CONCLUSION

For the foregoing reasons, a writ of certiorari should

issue so as to allow summary reversal of the judgment

of the Court of Claims. Absent summary reversal, a

writ of certiorari should issue to review the judgment

of the Court of Claims.

Respectfully submitted,

ANGELO A. IADAROLA

1785 New York Avenue, N. W.

Washington, D.C. 20006

(202) 833-9800

Attorney for Petitioner

Of Counsel:

WILKINSON, CRAGUN & BARKER

April 24, 1978

Appendices

A-1

APPENDIX A

Opinion of the United States Court of Claims

IN THE UNITED STATES COURT OF CLAIMS

No. 315-75

(Decided January 25, 1978)

GEORGIA-PACIFIC CORPORATION v. THE UNITED

STATES

Angelo A. ladarola, attorney of record, for plaintiff.

Wilkinson, Cragun & Barker, Philip A. Nacke and

Charles I. Appler, of counsel.

L. Mark Wine, with whom was Assistant Attorney

General James W. Moorman, for defendant. Eric S.

Gould, of counsel.

Before DURFEE, Senior Judge,“ Davis and KASHIWA,

Judges.

ON DEFENDANT’S MOTION AND PLAINTIFF’S CROSS-MOTION

FOR SUMMARY JUDGMENT

Davis, Judge, delivered the opinion of the court:

This troubling problem is what should be done when

a claimant brings suit in this court for an inverse con-

demnation of land interests, and not long thereafter the

Senior Judge Durfee died after the argument but before the

preparation and adoption of this opinion.

A-2

Government files a District Court condemnation action

involving the very same interests but asserting a later

taking-date. On August 22, 1975, Georgia Pacific filed

its petition here asking just compensation for an alleged

taking by the Federal Government in 1974-1975 of cer-

tain of its land in West Virginia. About half-a-year

later, on March 5, 1976, the United States filed a con-

demnation action and declaration of taking in the South-

ern District of West Virginia (United States v. 9,268.52

Acres of Land, Civil No. 76-0045BL), covering all the

land embraced in plaintiff’s petition in this court but

assuming that the taking occurred only on March 5, 1976.

Georgia-Pacific asked the District Court for a stay of

the valuation proceedings in the condemnation suit until

resolution of its claim in this court for a prior taking.

The District Court denied this motion and the Fourth

Circuit dismissed the company’s appeal, holding the Dis-

trict Court’s order non-appealable and also that there

was no such abuse of discretion as to necessitate resort

to the extraordinary remedy of mandamus. United States

of America v. Georgia-Pacific Corp., 562 F.2d 294

(1977). Meanwhile both parties had moved for sum-

mary judgment in this court, overwhelming us with long

and detailed briefs, and a mass of affidavits and docu-

ments. Defendant urges, of course, that no eminent do-

main ensued upon the Government’s activities in 1972-

1976 until the institution of the West Virginia condemna-

tion action in March 1976. Plaintiff sought to prove, on

the contrary, that a taking had occurred before the be-

ginning of the current suit in August 1975.

In 1962 Congress first authorized the R. D. Bailey Lake Project

(in West Virginia) primarily for flood control. After considerable

study and reevaluation, the Project evolved into one encompassing

approximately 20,000 acres in the coal-producing region of West

Virginia. Georgia-Pacific was the largest land-owner, controlling

some 7,000 acres in fee and having subsurface rights to another

2,500 acres. The company claims that at first the Corps of Engineers

—— ee en

A-3

If we felt compelled to determine the merits of the

parties’ respective positions, we clearly would not do so

on these cross-motions for summary judgment. There

is a hard residue of factual dispute which would first

have to be tried and determined in the Trial Division.

And to the extent that there are portions of the con-

tested issues which might in the end be found to be

“legal,” they are so complex and so intermeshed with

factual and particular details that we would first ask a

trial judge to sift through the mass of material thrust

upon us.“ See Cheyenne-Arapaho Tribes v. United States,

206 Ct. Cl. 340, 549, 512 F.2d 1390, 1394 (1975) ; Space

Research Corp. v. United States, Ct. Cl. No. 389-74, order

of Nov. 11, 1977. This is another case in which sum-

mary judgment will not serve as a short-cut or a by-pass.

See Julius Goldman’s Egg City v. United States, 214

Ct. Cl. 556 F.2d 1096 (1977).

(which was responsible for the Project) allowed mining operators to

continue their work so long as they did not interfere with the

Project but that, beginning in 1972, the Corps, pushed by environ-

mental interests represented on Congressional Committees, devel-

oped and ultimately put into effect severe restrictions on mining

use in the area. These alleged restrictions, plus a series of threat-

ened legal actions and asserted informal prohibitions and regula-

tions, together with a refusal or inability to condemn the property

outright—all alleged to have led to the limitation, postponement or

abandonment of mining activity by plaintiff's coal lessees—are said

by plaintiff to have constituted the inverse taking for which it sues

in this court. Plaintiff says that thereby it “suffered a taking by

defendant, without compensation, of its sub-surface mineral holdings

totalling 9,288.07 acres, and so much of the surface as was necessary

for development of the sub-surface within the designated Project

boundaries.” There was at no time any physical invasion of the

property by the Government. The defense here is that the Govern-

ment was merely exercising its rights under agreements it had with

Georgia-Pacific and/or imposing lawful regulations which fell short

of a taking.

2 Plaintiff's briefs on the cross-motions run to 325 pages and its

affidavits and documents add three additional volumes. Defendant’s

briefs came to 105 pages plus two and one-half volumes of affidavits

and documents.

A-4

We have decided, however, that there is another course

we can properly take and should follow. In our view,

which we shall spell out, the District Court has the

authority, in the condemnation suit, first, to determine

whether the date of taking was March 5, 1976 (when

that action was begun by the United States and the

declaration of taking filed) or the pre-August-1975 date

claimed by Georgia-Pacific in the present inverse con-

demnation case, and second, to value the property as of

the date of taking it finds.“ Accordingly, we shall sus-

pend further proceedings in this litigation until the

District Court has decided when the date of taking oc-

curred, or has refused to inquire whether a time prior

to March 5, 1976, is the correct one.

The legally significant bone of contention is the date

of taking. Georgia-Pacific tells us that coal-land prices

were higher in 1974-1975 and relatively low in March

1976 when the declaration of taking was filed; it is even

hinted that the Government may have deliberately waited

for such a favorable time before beginning its condem-

nation action in the District Court. That is why the

company pushes its claim here.‘ But the District Court,

in our opinion, is not bound to adopt the March 1976

date as the taking date for Georgia-Pacific’s lands; if it

accepts the present claimant’s position it can find that

the lands were taken on some date in 1974 or 1975, and

then the court can value the property as of that time.

We draw this conclusion largely from United States v.

Dow, 357 U.S. 17 (1958), in which the Supreme Court

Both parties summarily rejected this position when it was tenta-

tively broached from the bench during oral argument. Nevertheless,

after reflection, we consider it the most appropriate disposition.

* Plaintiff also notes that it would be able to obtain greater inter-

est if the taking-date were in 1974-75, and that if the suit continued

here Georgia-Pacific would be eligible (if it prevailed) for an award

of attorneys’ fees under 42 U.S.C. § 4654(c).

A-5

ruled in a condemnation suit that the claim to just com-

pensation for the taking of an easement vested in the

landowners at the time the Government entered into

possession of the easement (1943) rather than the later

date when the declaration of taking was filed (1946).

In 1943 the United States brought a condemnation pro-

ceeding to acquire a certain right-of-way for a pipeline;

no declaration of taking was filed at that time but the

Government entered into immediate possession under a

court order. Thereafter (in 1945) the tract (subject to

the right-of-way) was conveyed to Dow and in 1946 the

Government filed a declaration of taking covering the

right-of-way, depositing estimated compensation.

The issue before the Court was whether Dow—who had

no interest when the United States entered into posses-

sion in 1943 but did have an interest at the time of the

declaration of taking in 1946—was entitled to any award

for the right-of-way. The Court held not. It declared

that Dow could prevail only if the taking“ occurred

while he was the owner (357 U.S. at 20-21), but that

the “taking” occurred in 1943 when the Government

entered into possession of the right-of-way (357 U.S. at

21). If the United States enters into possession before

the formal acquisition of title (which passes on pay-

ment), the normal rule is that “it is the former event

which constitutes the act of taking. It is that event which

gives rise to the claim for compensation and fixes the

date as of which the land is to be valued and the Gov-

ernment’s obligation to pay interest accrues” (357 U.S.

at 22). Similarly, where a declaration of taking is filed

after the Government has taken possession, the date of

“taking” is the prior date on which the Government

entered and appropriated the property to public use (357

U.S. at 23). That rule is consistent with the principle

that such entry is the time of taking for purposes of

valuing the property and fixing the date on which the

A-6

Government’s obligation to pay interest begins to run

(357 U.S. at 24); the rule also works against manipula-

tion by owners or the Government which might occur if

a later declaration of taking were thought to be the

taking (357 U.S. at 25).

The theory of Dow, with its insistence on the date of

actual taking as the valuation date and the date from

which interest begins to run, seems to us to empower the

condemnation court, in a case like this, to find that the

actual taking (like the Government’s entry onto the

right-of-way in Dow) preceded the declaration of taking.

The one obvious difference from Dow is that there the

condemnation suit had been brought before the entry was

effected while here the taking claimed by Georgia-Pacific

(if there was one) antedated the beginning of the con-

demnation suit (which was contemporaneous with the

declaration of taking). Under the Dow rationale that

distinction seems to us irrelevant to the authority of the

condemnation court to determine the date of actual tak-

ing. Neither the terms of the legislation granting the

Government the right to bring the condemnation action

(33 U.S.C. §§ 591, 701c-1, see also 40 U.S.C. § 257), nor

the conception of a condemnation suit, preclude the con-

demnation court from deciding that the actual date of

taking preceded the filing of the suit. A condemnation

suit is one means of determining that the Government

has title to property or of passing title to the Govern-

ment. The objective of such a suit is not restricted to

effectuating a transfer of actual possession from the

asserted landowner to the United States (though that is

a sufficient aim, United States v. 93.970 Acres of Land,

360 U.S. 328, 330, 332 (1959) ; Best v. Humboldt Mining

Co., 371 U.S. 334, 340 (1968)). Other significant pur-

poses (which can be pursued even where the Government

already has possession) are to pass title to the Govern-

ment (as Dow held, title, distinguished from possession,

— 0 —

A-7

does not pass until compensation is paid or made avail-

able to the owner) or to make it clear, in case of dispute,

that the Government already has full right to use or

possess the property without payment of further com-

pensation. See United States v. 93.970 Acres of Land,

supra, 360 U.S. at 330, 332; Best v. Humboldt Mining

Co., supra, 371 U.S. at 335, 340; United States v. 422,978

Square Ft. of Land, San Francisco, 445 F.2d 1180, 1188-

89 (9th Cir. 1971).° Even the function of valuation

need not necessarily be performed by the condemnation

court; the Supreme Court has held a condemnation suit

sufficiently malleable and all-encompassing, where the

Government’s right to property is involved, to allow the

court to delegate determination of a mining claim to

administrative proceedings. Best v. Humboldt Mining

Co., supra. We consider, then, that the current theory

of the condemnation suit allows the condemnation court

great leeway, and that, where the Government sees fit to

bring a condemnation suit, the court is authorized to

make an authoritative determination, first, whether or

not the property was compensably taken by the United

States at all and if so when, second, of the value of that

property as of that date of taking, and, third, of the pas-

sage of title to the Government through the ascertain-

ment and payment of compensation.*

The 422,978 Square Ft. of Land opinion said: “Filing the com-

plaint in condemnation did not alone constitute a taking [citing

cases] but was only a method of adjudicating the contention of the

United States that the State [of California, the asserted landowner}

was not entitled to compensation.”

In United States v. 422,978 Square Ft. of Land, San Francisco,

supra, 445 F.2d at 1182-84, 1187-1189, the Ninth Circuit decided, in

a condemnation suit first brought in 1955, that the taking, if any,

occurred in 1940 and the landowner (the State of California) was

barred from all recovery in the condemnation suit because it failed

to seek Tucker Act relief within six years (the limitations period)

after 1940. Thus, the court held in a condemnation action begun in

1955, that any taking occurred no later than 1946.

A-8

To us, the standards of efficiency, expedition, and in-

expensiveness (cf. United States v. 93.970 Acres of Land,

supra, 360 U.S. at 332) call for the centralization, in the

present situation, of the whole proceeding in one tribunal

rather than the bifurcation insisted upon by each party

(see note 3, supra). The condemnation proceeding covers

several parties in addition to Georgia-Pacific. We thus

have only part of the eminent domain litigation in this

court. If we were to decide the merits of the pre-March

1976 taking issue proffered by Georgia-Pacific, the Dis-

trict Court would either have to delay its entire pro-

ceeding until we had concluded ours, or go ahead with

respect to other parties (at the risk of repetitive further

litigation if it was ultimately decided here that Georgia-

Pacific was wrong in its claim of a pre-March 1976 tak-

ing) or proceed with its whole case (at the risk of con-

temporaneous litigation in both tribunals, litigation which

might prove wasteful and unnecessary in the District

Court if Georgia-Pacific prevailed here on its claim).

And even if the District Court (despite its previous

denial of Georgia-Pacific’s stay motion) chose to wait

for our proceedings, the matter would still have to go

back there if we decided that no taking occurred before

March 5, 1976; we have no jurisdiction to determine

valuation if the taking occurred only when the taking-

declaration was filed on that date. The nub of it is that

only the District Court is in a position to decide all

phases of the litigation in the event Georgia-Pacific’s

claim of an early taking should be rejected.

Moreover, a single tribunal is better able than two or

more independent courts to direct and handle variant and

alternative claims all bearing on the same situation.

Sometimes such unified treatment is precluded by juris-

dictional statutes, but where it is not—as we think is

true of this instance—it is ordinarily better to centralize

the proceedings in the tribunal which has the widest

A-

scope to handle all the parts of what is in commonsense

one unified piece of litigation. That is a strong thread

running throughout the law from the theory of the com-

pulsory counterclaim to the creation of the Judicial Panel

on Multidistrict Litigation.

To these demands of practicality there have been op-

posed some technical arguments which we consider un-

availing. The Government has told us that the Dow

theory can only be used where the Government itself puts

forth (as it did in Dow) an earlier taking-date than the

filing of the declaration of taking. We know of no reason

why this should be so; nothing in the Dow opinion or the

current theory of condemnation suits (as we understand

it, see supra) gives the Government such a one-sided

choice or precludes the landowner from saying that the

actual taking (stressed in Dow) preceded the taking-

declaration. On the other hand, Georgia-Pacific told the

District Court that that tribunal had no authority to

consider a pre-March 1976 taking date because to take

that course would be tantamount to entertaining a for-

bidden counterclaim by Georgia-Pacific against the

United States under the Tucker Act for more than

$10,000: But that position would be valid only if the

District Court, in its role as a condemnation court, were

forbidden from considering any date of taking before

March 5, 1976, and accordingly were able to consider

Georgia-Pacific’s pre-March 1976 position only in its

capacity as a Tucker Act court determining a monetary

claim against the United States. We have shown above

that the postulate is incorrect—that the District Court,

as a condemnation court, can decide whether or not the

taking cecurred in 1974 or 1975. In the District Court

there is no affirmative claim at all by Georgia-Pacific

against the Government and the Tucker Act is not impli-

In its Memorandum of Points and Authorities in Support of

Defendant Georgia-Pacific Corp.'s Motion for Stay of Proceedings.

A-10

cated. The condemnation action puts in issue the date of

taking if Georgia-Pacific so wills it; if Georgia-Pacific

tells the condemnation court, as we think it should, that

in the company’s view the taking occurred before March

5, 1976, that court can (in our view) decide the question

and determine compensation accordingly—all in its capa-

city as the condemnation court.“

We do not say that this court is without jurisdiction

over the claim of a taking before March 1976. Our posi-

tion is that both this court and the District Court can

take account of, and decide, that claim—but that only

the District Court, now that the Government has filed a

condemnation suit, has authority to determine all aspects

of Georgia-Pacific’s right to compensation,“ and therefore

that the District Court is the preferred forum in which

to center the whole litigation.

These are our views, but the District Court (or higher

tribunals) may disagree either as to the range of the

condemnation court’s authority or as to the discretionary

* Neither United States v. Certain Land, 203 F.Supp. 454 (S.D.

N.Y. 1958), nor Meyer v. United States, 138 Ct. Cl. 86, 150 F. Supp.

314 (1957), 141 Ct. Cl. 687, 159 F. Supp. 333 (1958), decides any-

thing to the contrary. In Certain Land the Government's condemna-

tion complaint itself admitted on its face, and the landowner agreed,

that the United States had been in possession of the property, be-

fore the condemnation suit was commenced, as a holdover tenant

under a specified lease from the defendant landowner—the con-

demnation suit purported to cover that prior period as well as future

occupancy—and the court held that in those circumstances determi-

nation of the rental value for the prior period would necessarily

amount to a Tucker Act suit for holdover rent which was for more

than $10,000 and beyond the District Court’s jurisdiction. Meyer

involved the Government’s defense that a lessor’s complaint here was

barred by 28 U.S.C. § 1500 where the Government had filed a con-

demnation suit purporting to cover, retroactively, the same leasehold

interest; the court held that § 1500 bars only duplicative suits by

claimants, and does not cover the situation where the other suit is

brought by the Government itself.

* J.e., only the District Court can determine valuation if the taking

date is held to be March 5, 1976.

A-11

appropriateness of converging all aspects of this particu-

lar litigation in the District Court. We shall therefore do

no more than suspend proceedings here until the District

Court has had the opportunity to determine what course

it will take. If that court (or a higher court) rules that

it will not consider any date of taking before March 1976,

we shall terminate the suspension here and proceed to-

ward determination of the inverse condemnation claim of

a pre-March 1976 taking. We have already indicated,

supra, that in that event we shall need the help of the

Trial Division in the face of the detailed issues and the

overwhelming accumulation of affidavits, documentation,

and argumentation presented to us.

Proceedings here are suspended to allow the District

Court opportunity to decide whether it will consider any

alleged taking date prior to March 5, 1976.

So ordered

A-12

APPENDIX B

Statutes

United States Code, Title 28:

§ 1346. United States as defendant.

(a) The district courts shall have original jurisdiction,

concurrent with the Court of Claims, of:

(2) Any other civil action or claim against the

United States, not exceeding $10,000 in amount,

founded either upon the Constitution or any Act of

Congress, or any regulation of an executive depart-

ment, or upon any express or implied contract with

the United States, or for liquidated or unliquidated

damages in cases not sounding in tort.

(f) The district courts shall have exclusive original

jurisdiction of civil actions under section 2409a to quiet

title to an estate or interest in real property in which

an interest is claimed by the United States.

§ 1358. Eminent domain.

The district courts shall have original jurisdiction of

all proceedings to condemn real estate for the use of the

United States or its departments or agencies.

§ 1491. Claims against the United States generally ... .

The Court of Claims shall have jurisdiction to render

judgment upon any claim against the United States

founded either upon the Constitution, or any Act of Con-

gress, or any regulation of an executive department, or

upon any express or implied contract with the United

States, or for liquidated or unliquidated damages in cases

not sounding in tort.

— —— — —

A-13

§ 1506. Transfer to cure defect of jurisdiction.

If a case within the exclusive jurisdiction of the dis-

trict courts is filed in the Court of Claims, the Court of

Claims shall, if it be in the interest of justice, transfer

such case to any district court in which it could have been

brought at the time such case was filed, where the case

shall proceed as if it had been filed in the district court

on the date it was filed in the Court of Claims.

§ 2409a. Real property quiet title actions.

(a) The United States may be named as a party de-

fendant in a civil action under this section to adjudicate

a disputed title to real property in which the United

States claims an interest, other than a security interest or

water rights.

(b) The United States shall not be disturbed in pos-

session or control of any real property involved in any

action under this section pending a final judgment or

decree, the conclusion of any appeal therefrom, and sixty

days; and if the final determination shall be adverse to

the United States, the United States nevertheless may

retain such possession or control of the real property or

of any part thereof as it may elect, upon payment to

the person determined to be entitled thereto of an amount

which upon such election the district court in the same

action shall determine to be just compensation for such

possession or control.

United States Code, Title 42:

§ 4654. Litigation expenses.

(e) The Court rendering a judgment for the plaintiff

in a proceeding brought under section 1346(a)(2) or

1491 of Title 28, awarding compensation for the taking

A-14

of property by a Federal agency, or the Attorney Gen-

eral effecting a settlement of any such proceeding, shall

determine and award or allow to such plaintiff, as a part

of such judgment or settlement, such sum as will in the

opinion of the court or the Attorney General reimburse

such plaintiff for his reasonable costs, disbursements,

and expenses, including reasonable attorney, appraisal

and engineering fees, actually incurred because of such

proceedings.

—— ote nd ene —.—