# Petition — Georgia-Pacific Corp. v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 820

## Text

1

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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 —.—

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0939%3A1. Public record. Not legal advice.