Petition — United States v. Bodcaw Co.

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Iu the Supreme Court of the United States

OCTOBER TERM, 1978

UNITED STATES OF AMERICA, PETITIONER

Vv.

BoDCAW COMPANY

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FirTH CIRCUIT

WADE H. MCCREE, JR.

| Solicitor General

SANFORD SAGALKIN

; Acting Assistant Attorney General

WILLIAM C. BRYSON

Assistant to the Solicitor General

RAYMOND N. ZAGONE

JACQUES B. GELIN

ANNE S. ALMY

Attorneys

Department of Justice

Washington, D.C. 20530

Page

denne ee 1

I ic cacseeenta a eee 1

ene een 9 ee 2

Constitutional provision involved 2

I eS er ok ncn cbeiatibeateeiaunelk 2

Reasons for granting the petition 6

IE soiree Se Dakdneeee 19

CITATIONS

Cases:

Alyeska Pipeline Service Co. v. Wilderness

Society, 421 U.S. 240 . 13, 19

Bowers v. Fulton County, 227 Ga. 814,

183 S.E.2d 347 _ Se 8

Department of Conservation v. . Connor,

316 Mich. 565, 25 N.W.2d 619 8

County of Los Angeles v. Ortiz, 6 Cal. 3d

141, 98 Cal. Rptr. 454, 490 P.2d 1142 8

Dade County v. Brigham, 47 So.2d 602 8

Dohany v. Rogers, 281 U.S. 362 . 5, 6

Manchester Housing Authority v. Bel-

court, 111 N.H. 367, 285 A.2d 364 8

Mitchell v. United States, 267 U.S. 341. 14, 16

Monongahela Navigation Co. v. United

States, 148 U.S. 312 14, 16

9.88 Acres of Land v. State, 274 A.2d

139 - “ 8,12

North America Realty Co. v. , City of Mil-

waukee, 189 Wis. 585, 208 N.W. 489 8

Olson v. United States, 292 U.S. 246 14,15

Cases—Continued Page

Peel v. Burk, 197 N.W.2d 617 -.............. 8

Phelps v. United States, 274 U.S. 341... 14

Rich Co., F. D. v. Industrial Lumber Co.,

I I ea 18

Richmond Elks Hall Association vy. Rich-

mond Redevelopment Agency, 561 F.2d

a : 7

Rocca v. United States, 500 F. 2d 492. a? 16-17

Schwartz v. Western Power & Gas Co.,

208 Kan. 844, 494 P.2d 1113 _ . 8

State v. Davis, 53 Haw. 582, 499 P.2d

663 - 8

State v. -Mandis, 119 NJ. ‘Super. 59, 290

oo 8

State v. McDonald, 88 ‘Ariz. ‘ 352 P.2d

oe 8

State v. Miller Home Development, Ine., ¥

65 N.W.2d 900 .~ ; 8

Stewart & creat Ine. v. State, 524 P.2d

1242 . 8

WMATA vy v. . One Parcel of Land, 548 F. 2d

1130 tyra 12

United States v. Certain Land at Irving

Place and 16th Street, 415 F.2d 265,

as amended, 420 F.2d 370 7

United States v. Corbin, 423 F. 2d 821 10

United States v. Cors, 337 U.S. 331 - 16

United States v. Coughlin, 405 F. Supp.

ae 10

United States \ v. 15.8 Acres of Land, 158

F. Supp. 122 8

United States v. 5,558. 80 Acres 7 in - Con-

cordia Parish, La. (Angelina Plantation

Farm), WD. La., No. 77-0441 (June

23, 1978)

IIl

Cases—Continued

United States v. 4.18 Acres of Idaho

County, Idaho, 542 F.2d 786 ._....

United States v. 481.60 Acres in Rich-

mond i lied Georgia, 355 F. Supp.

eo.

United States \ v. 46, 672. 96 Acres i in 2 Dona

Ana County, New Mewico, 521 F.2d 18

United States v. General Motors Corp.,

Ss Ue. are...

United States v. Lee, 360 F. od 449

United States v. Miller, 317 U.S. 369 _..

United States v. Petty Motor Co., 327

U.S. 327 .

United States v. . Realty Co., 163 ‘US.

: igpeeh aba ar Pa cna ene aaa te een

United States v. Reynolds, 397 U.S. 14

United States v. 71.29 Acres of Land, 376

F. Supp. 1221 -.......

United States v. 23.94 Acres of Land, 325

F. Supp. 330 med

United States v. 2,353.28 ‘Acres in Bre-

vard and Volusia Counties, Florida, 414

F.2d 965 |

United States v. 2,457.85 Acres in Yazoo

and Holmes County (Yazoo Head-

waters), 303 F. Supp. 8838 ...........

United States v. Willow River Co., 324

U.S. 499

United States ex rel. T. V.A. v. - Powelson,

319 U.S. 266 .

White v. State, 319 So.2d 247 ©

7,16

Constitution, statutes, regulatiins and rule:

United States Constitution '

Fifth Amendment

Just Compensation Clause

Declaration of Taking Act, 40 U.S.C.

I eine ncisscinstiahcsaicac teen aaate

Uniform Relocation Assistance and Real

Property Acquisition Policies Act of

1970, 42 U.S.C. 4601 et seq.

Section 302(1), 42 U.S.C. 4651(1)

Section 302(2), 42 U.S.C. 4651(2) .

Section 304, 42 U.S.C. 4654

Section 304(a), 42 U.S.C. 4654(a)

Florida Constitution, Just ee

Clause _.

Rule 408, Fed. R. Evid.

Miscellaneous:

Annual Report of the Director of Admin-

istrative Office of the United States

Courts (1977) _.. ;

Ayer, Allocating the Costs of Determining

“Just Compensation,” 21 Stan. L. Rev.

693 (1969)

Handbook of the National Conference of

Commissioners on Uniform State Laws

(1974), Uniform Eminent Domain

Code 1205(b), 1205(c) .. _..

7 J. Moore, Federal Practice (24 ‘ed.

1978)

7 P. Nichols, Eminent “Domain + (Rev. 3d

ed. 1977) <inlaiatcosideuseentae

Page

Miscellaneous—Continued

H.R. Rep. No. 91-1656, 91st Cong., 2d.

Sess. (1970) - 7 wena

House Select Subcommittee on n Real Prop-

erty Acquisition, Study of Compensa-

tion and Assistance for Persons Af-

fected by Real Property Acquisition in

Federal and Federally Assisted Pro-

grams, Committee Print No. 31, 88th

Cong., 2d Sess. (1965) -

Report of the Proceedings of the Judicial

Conference of the United States, March

6-7, 1975 .

pe Britton, E fect i in Florida of Requiring

the Condemnor to Pay Condemnee’s En-

tire Litigation ei — iad

(October 1963) . . ES ia

Page

17,18

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

No.

UNITED STATES OF AMERICA, PETITIONER

BoDCAW COMPANY

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Fifth Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (App. A) is

reported at 574 F.2d 238. The order and opinion

of the district court (Apps. C and D) are unreported.

JURISDICTION

The judgment of the court of appeals (App. B)

was entered on June 1, 1978. On August 22, 1978,

(1)

Mr. Justice Powell extended the time for filing a

petition for a writ of certiorari to and including

September 29, 1978. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether a federal district court may award an

owner of land taken in a federal condemnation pro-

ceeding the cost of appraising the land as an element

of the just compensation guaranteed by the Fifth

Amendment.

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment of the Constitution provides

in pertinent part:

nor shall private property be taken for public

use, without just compensation.

STATEMENT

The United States brought this condemnation ac-

tion in connection with an Army Corps of Engineers

flood control project in Caldwell Parish, Louisiana.

The interest taken was a permanent easement in

certain land owned by the respondent, Bodeaw Com-

pany. The government filed a declaration of taking

on March 18, 1971, pursuant to the Declaration of

Taking Act, 40 U.S.C. 258a, and deposited $99,650

with the clerk of the United States District Court for

the Western District of Louisiana as the estimated

just compensation for the taking (App. A, infra, at

la-2a; C.A. App. 6-7).

*“C.A. App.” refers to the government’s appendix in the

court of appeals.

The issue of just compensation was tried to a jury.

The government’s expert witness appraised the value

of the interest taken at $95,600; the landowner’s

two expert witnesses testified to values of $192,662

and $199,163, respectively (Tr. 112, 215, 549). The

jury returned a verdict of $146,206 (App. A, infra,

at 2a). On the landowner’s motion, the district court

awarded an additional $20,512.50 as reimbursement

for appraisal costs and expert witness fees incurred

by Bodcaw in the course of preparing for and con-

ducting the litigation (ibid.). The United States

appealed from the award of fees and costs.

A divided court of appeals affirmed in part and

reversed in part. The court acknowledged that expert

witness fees were litigation costs and hence could not

be taxed against the United States in the absence of

statutory authority. But the cost of preparing the

appraisal reports that formed the basis of the ex-

perts’ testimony did not, in the court’s view, fall into

the category of non-taxable costs. Instead, the court

held that federal courts could exercise their equity

powers to award, in appropriate cases, expenses of

appraisal as part of the just compensation guaran-

teed by the Constitution.’

The court posited that “the central goal of just

compensation [is] to place the landowner in as good

a financial position as he would have been absent the

taking of his property” (App. A, infra, at 5a). The

court found in this case “unusual factual circum-

2 “We conclude that the appraisal expenses in this case are

part of the just compensation :nandated by the Fifth Amend-

ment * * *” (App. A, infra, at 2a).

stances and equitable considerations” that supported

the award of appraisal expenses (id. at 6a). Accord-

ing to the court, the award was appropriate because

“(t]he land taken by the Government was not of

such character that accurate estimates of value easily

could be made’’; because the government had failed to

conduct an on-site appraisal of the property until

well after the suit was filed; and because the amount

deposited by the government into the court registry—

$99,650—was more than $45,000 less than the sum

awarded by the jury (id. at 5a-6a). The court there-

fore concluded that the Bodeaw Company would not

be “made whole for the Government’s taking of its

land if the large amount expended by it for ap-

praisals in order to demonstrate the unfairness of the

price offered by the United States is not considered

an element of just compensation” (id. at 6a). Since

the district court had included both witness fees and

other appraisal expenses in the award, the court of

appeals remanded the case for the district court to

deduct from the judgment the amount of the award

that was attributable to the appraisers’ witness fees

as distinguished from the other expenses of the ap-

praisals (id. at 7a).

Judge Cowen of the Court of Claims, sitting by

designation, dissented. He took issue with the ma-

jority’s finding that this condemnation proceeding

was unusual. In Judge Cowen’s view, “[w]hat we

have here is the rather typical, oft-recurring situa-

tion where the landowner is dissatisfied with the

Government’s valuation, employs an expert to ap-

praise his land, and then utilizes the appraiser as

an expert witness in litigation for the purpose of

attempting to persuade the court to increase the

Government’s valuation of the property” (App. A,

infra, at 8a).

Judge Cowen deemed the court’s distinction be-

tween appraisal fees and the appraisers’ witness fees

to be untenable. “The fee paid for the appraisal is

an integral part of the litigation expenses as fully as

services performed by an attorney in preparation for

a trial, or the examination of books and records by

an accountant in preparation for his testimony in

court on accounting issues” (App. A, infra, at 9a).

Inasmuch as this Court in Dohany v. Rogers, 281 U.S.

362, 368 (1930), established the rule that attorneys’

fees and other expenses incurred by a condemnee are

not included in the just compensation required by the

Fifth Amendment, Judge Cowen would have disal-

lowed the appraisal fees as well as the appraisers’

witness fees.°

* Judge Cowen distinguished the Fifth Circuit decision in

United States v. Lee, 360 F.2d 449 (5th Cir. 1966), on which

the majority relied heavily. In Lee, the government had un-

derestimated the acreage it was taking, had refused the land-

owner’s request that it conduct a survey to determine the

amount involved, and had forced the landowner to conduct

his own survey to establish the amount of acreage con-

demned—which proved to be 82 acres more than the govern-

ment had estimated. In those circumstances, the court held

that the government should be required to pay for the survey.

It justified this result on the basis that the burden is on the

condemnor to establish the amount of land being taken, and

the government had sought to shift to the landowner the

expense of meeting that burden. /d. at 452. By contrast, the

landowner bears the burden of proving the value of the prop-

erty being condemned. United States ex rel. T.V.A. V. Powel-

son, 319 U.S. 266, 273 (1943).

In addition, Judge Cowen noted that Congress has

authorized the awarding of litigation expenses against

the United States in condemnation cases, but only

in very limited circumstances that are not applicable

here. In Section 304(a) of the Uniform Relocation

Assistance and Real Property Acquisition Policies

Act of 1970 (Uniform Relocation Act), 42 U.S.C.

4654(a), Congress provided that reimbursement for

litigation expenses, “including reasonable attorney,

appraisal, and engineering fees,” shall be awarded to

the condemnee, but only if the condemnation proceed-

ing is abandoned by the United States or if the final

judgment is that the federal agency cannot acquire

the property by condemnation. That statute, Judge

Cowen concluded, “should be construed as creating

only a narrow exception to the general rule which

forbids the recovery of appraisal fees and expenses

incurred by the owner, it being the purpose of Con-

gress to discourage litigation in Federal condemna-

tion proceedings” (App. A, infra, at lla).

REASONS FOR GRANTING THE PETITION

1. The decision of the court of appeals is contrary

to this Court’s decision in Dohany v. Rogers, 281

U.S. 362 (1930).

In Dohany, a landowner sought to enjoin state

highway officials from acquiring a right-of-way across

his land for the relocation of a railroad displaced by

a state highway project. The officials had brought

the condemnation proceeding under the state’s high-

way condemnation statute instead of the special statu-

tory provisions governing condemnation of property

by a railroad for railroad use. The railway condem-

nation statute accorded special benefits to the con-

demnee, including the right to an award of attorneys’

fees and expenses (id. at 365). The highway con-

demnation statute provided none of these special

benefits. The landowner claimed that the denial of

attorneys’ fees and expenses under the highway con-

demnation statute would deprive him of due process,

equal protection, and just compensation for the prop-

erty taken (281 U.S. at 366).

The Court rejected the landowner’s contentions. In

response to the due process and equal protection

claims, the Court held that due process does not

guarantee any particular form of proceeding and

that equal protection does not bar the state from dis-

tinguishing between condemnation suits brought by

the state and those brought by a private party (id.

at 369). In response to the just compensation claim,

the Court held that “‘[a]ttorneys’ fees and expenses

are not embraced within just compensation for land

taken by eminent domain” (id. at 368).

The holding in Dohany that expenses are not part

of the just compensation required by the Fifth Amend-

ment has been followed routinely, both in the federal

courts * and in state court decisions interpreting the

*E.g., Richmond Elks Hall Association v. Richmond Rede-

velopment Agency, 561 F.2d 1327, 1333 (9th Cir. 1977);

United States v. 4.18 Acres of Land, 542 F.2d 786, 788 (9th

Cir. 1976); Rocca v. United States, 500 F.2d 492, 496 (Ct. Cl.

1974); United States v. Certain Land at Irving Place and

16th Street, 415 F.2d 265, 272, as amended, 420 F.2d 370 (2d

Cir. 1969); United States V. 2,353.28 Acres in Brevard and

Volusia Counties, Florida, 414 F.2d 965, 972 (5th Cir. 1969);

Just Compensation Clause of the Fifth Amendment.’

The ruling of the court in this case—that appraisal

expenses may be included as an element of the just

United States Vv. 431.60 Acres in Richmond County, Georgia,

355 F. Supp. 1093, 1096 (S.D. Ga. 1973); United States v.

23.94 Acres of Land, 325 F. Supp. 330, 332 (W.D. Va. 1970);

United States Vv. 15.3 Acres of Land, 158 F. Supp. 122, 125

(M.D. Pa. 1957); Contra, United States Vv. 71.29 Acres of

Land, 376 F. Supp. 1221 (W.D. La. 1974) (a prior decision

from the same district court that awarded litigation expenses

in this case, apparently relying in part on the Louisiana statu-

tory provision for awarding litigation expenses as part of the

costs awarded to the condemnee under Louisiana law).

°E.g., White v. State, 319 So. 2d 247 (Ala. 1975); State v.

McDonald, 88 Ariz. 1, 13-14, 352 P.2d 343, 351 (1960); County

of Los Angeles Vv. Ortiz, 6 Cal. 3d 141, 98 Cal. Rptr. 454, 490

P.2d 1142 (1971); 9.88 Acres of Land v. State, 274 A.2d 139,

141 (Del. 1971); Bowers v. Fulton County, 227 Ga. 814, 183

S.E.2d 347 (1971); State v. Davis, 53 Haw. 582, 499 P.2d 663

(1972); Peel v. Burk, 197 N.W.2d 617, 619 (Iowa 1972);

Schwartz v. Western Power & Gas Co., 208 Kan. 844, 852, 494

P.2d 1113, 1116-1117 (1972); Department of Conservation Vv.

Connor, 316 Mich. 565, 582, 25 N.W.2d 619, 625 (1947); State

v. Miller Home Development, Inc., 65 N.W.2d 900 (Minn.

1954); Manchester Housing Authority Vv. Belcourt, 111 N.H.

367, 369, 285 A.2d 364, 365 (1971); North America Realty

Co. Vv. City of Milwaukee, 189 Wis. 585, 208 N.W. 489 (1926);

State v. Mandis, 119 N.J. Super. 59, 290 A.2d 154 (1972).

In Dade County Vv. Brigham, 47 So.2d 602 (Fla. 1950), the

Florida Supreme Court held that litigation expenses may be

assessed against the condemnor. Although the court wrote

broadly, the decision ultimately rested not on the federal Con-

stitution but on a state statute, construed in light of the Just

Compensation Clause of the Florida Constitution. See also

Stewart & Grindle, Inc. v. State, 524 P.2d 1242 (Alaska 1974)

(construing an Alaska rule of eminent domain procedure to

include recovery for the condemnee’s litigation expenses, see

id. at 1250 n.31).

compensation mandated by the Fifth Amendment—

is thus in conflict with the nearly uniform rule

adopted by both state and federal courts.’

2. If the decision below is allowed to stand, its

impact on federal land acquisition litigation is likely

to be substantial. Contrary to the court’s characteri-

zation, this condemnation proceeding is not notably

different from the vast majority of litigated con-

demnation suits. Only a small percentage of fed-

eral land acquisitions result in fully litigated con-

demnation actions.’ The litigated cases are, generally

speaking, those in which the property taken is not

easy to value accurately and in which there is conse-

® The rule has been stated: “The constitutional mandate of

just compensation does not require reimbursement of an owner

for his attorney’s fees and other litigation expenses in defend-

ing a condemnation proceeding.” 7 J. Moore, Federal Practice,

{ 71 A.130[3], at 71A-623 (2d ed. 1978), citing Dohany.

7 Approximately 85 percent of the land acquired by the

United States for all purposes is purchased from the owners

without recourse to condemnation proceedings. See House

Select Subcommittee on Real Property Acquisition, Study of

Compensation and Assistance for Persons Affected by Real

Property Acquisition in Federal and Federally Assisted Pro-

grams, Committee Print No. 31, 88th Cong., 2d Sess. 44

(1965). With respect to the remaining 15 percent, as to which

condemnation actions are initiated, approximately 80 percent

of those actions are settled before trial. Jd. at 46.

The number of condemnation actions is significant, how-

ever, in relation to district court dockets. At the end of statis-

tical year 1977, with partial implementation of new guidelines

recommended by the Judicial Conference of the United States

for docketing and record-keeping in condemnation actions

(see Report of the Proceedings of the Judicial Conference of

the United States, March 6-7, 1975, at 9-10), there were 4,444

pending condemnation actions in the district courts, represent-

quently a significant difference of opinion concerning

the amount of compensation due. In such cases the

expert witnesses called by the parties regularly testify

to widely different values for the property, and the

fact-finder normally concludes that just compensation

is an amount falling between the estimates. F.9.,

United States v. 46,672.96 Acres in Dona Ana County,

New Mexico, 521 F.2d 13 (10th Cir. 1975); United

States v. Corbin, 423 F.2d 821, 829 (10th Cir. 1970);

United States v. Coughlin, 405 F. Supp. 13 (D. Ore.

1975) ; United States v. 2,457.85 Acres in Yazoo and

Holmes County (Yazoo Headwaters), 303 F. Supp.

883 (S.D. Miss. 1969).*

Correspondingly, experts hired by the parties rou-

tinely prepare appraisal reports on the property, for

purposes both of negotiation and of trial. See 7

P. Nichols, Eminent Domain, Section 4.01 et seq.

(Rev. 3d ed. 1977); see also Judge Cowen’s dissent,

App. A, infra, at 8a. The government is required by

statute to “make every reasonable effort to acquire

expeditiously real property by negotiation” rather

ing 2.9 percent of the pending civil actions. Annual Report

of the Director of the Administrative Office of the United

States Courts 209-210 (1977). The numbers and proportions

of pending condemnation actions on the dockets of individual

district courts are often substantial. Thus, 45 percent of all

pending civil actions in the Southern District of Florida were

condemnation proceedings, as were 24 percent in the South-

ern District of California and 12 percent in the Western Dis-

trict of Missouri. In contrast, other district courts had none.

Id. at 326-330.

*In this case, the jury’s award of $146,206 fell almost ex-

actly midway between the government appraiser’s estimate of

$95,600 and the estimates of $192,662 and $199,163 given by

Bodcaw’s appraisers.

than by litigation (42 U.S.C. 4651(1)), and it is re-

quired to appraise the property before it iniuates

negotiations for purchase (42 U.S.C. 4651(2)). Be-

cause, as in this case, the pre-negotiation appraisal is

conducted long before trial, and because pretrial rul-

ings in the case often alter the assumptions on which

the initial appraisal is made, the government often

finds it necessary to conduct a second appraisal short-

ly before trial. Meanwhile, the landowner is unlikely

to have a recent appraisal of his property that is ap-

propriate for trial purposes. Consequently, unless the

government’s initial deposit of estimated compensa-

tion is acceptable, the landowner routinely engages his

own appraiser to prepare for negotiation and possible

trial.

Thus, the circumstances that the court of ap-

peals found sufficiently “unusual” to sustain an

award of appraisal expenses in this case—a difficult-

to-value property interest, a substantial increase in

the amount awarded over the government’s initial

estimate and deposit, and reliance by the government

on an appraisal made shortly before the trial (App.

A, infra, at 6a)—are in fact present in a great many

litigated condemnation cases.

Aside from attorneys’ fees, appraisal expenses are

usually the largest litigation cost incurred by con-

demnees in eminent domain cases.’ If the ruling of

the court of appeals stands, condemnees are likely to

® In this case, pursuant to the order of the court of appeals,

Bodcaw has submitted affidavits claiming that of the $20,512.50

at issue, only $2,025 is attributable to the appraisers’ fees for

testifying at trial. The rest is attributed to preparation of

the appraisal reports.

claim reimbursement of such expenses in almost every

case.” In response, the government will be forced to

proffer additional evidence concerning the offers it

made to purchase the property,” the history of the

appraisals made by the government, and perhaps

even expert testimony on the reasonableness of the

government’s valuation.

Even with such additional evidence, it is not clear

from the court’s opinion what combination of cir-

cumstances should be deemed sufficiently “unusual’’

to authorize the award of appraisal fees. It is diffi-

cult to draw workable standards from the court’s

suggestion that “unusual factual circumstances and

the same court that tried the present case, has, since the deci-

sion of the Fifth Circuit, indicated that it will allow the land-

owner appraisal costs in United States v. 5,553.80 Acres in

Concordia Parish, La. (Angelina Plantation Farm) (W.D. La.,

No. 77-0441 (June 23, 1978) ).

"The majority of the court of appeals made the unwar-

ranted assumption that the amount of the registry deposit was

the maximum amount offered by the government to purchase

the property (App. A, infra, at 6a). The registry deposit was

the amount of the initial appraisal of the property. Federal

agencies often offer more than appraised value to purchase

property to avoid the expense of litigation. See WMATA v.

One Parcel of Land, 548 F.2d 1130, 1131 (4th Cir. 1977).

The government is precluded by statute from offering less

than the appraised value. 42 U.S.C. 4651(3). Offers to pur-

chase, however, are not admissible evidence in the proceedings

to determine just compensation (Rule 408, F. R. Evid.), and

often do not otherwise appear in the court record of the case.

There is nothing in the record in this case that reflects the

amount, above the registry deposit, that was offered by the

government to purchase the Bodcaw property.

equitable considerations” (App. A, infra, at 6a)

should be determinative. While the majority found

the present case unusual, Judge Cowen, in dissent,

found it “rather typical” (id. at 8a). This difference

of opinion points up the problems of leaving to the

trial court’s discretion, unguided by legislative man-

date, the task of picking and choosing those con-

demnation cases in which it is “equitable” to award

appraisal expenses. In effect, the court of appeals

has conferred on the district courts the authority to

allow appraisal costs “whenever the courts might

deem them warranted.” Alyeska Pipeline Service Co.

v. Wilderness Society, 421 U.S. 240, 260 (1975).

3. Beyond its departure from established prece-

dent on the issue of whether appraisal fees can be

charged against the condemnor in the absence of

statutory authority, the decision of the court of ap-

peals reflects a fundamental misconception of the

scope of the Just Compensation Clause of the Fifth

Amendment.

The rationale of the court’s decision was that an

award of appraisal costs was necessary to make the

Bodeaw Company whole (App. A, infra, at 6a):

Under the facts of this case, we cannot conclude

that the Bodeaw Company has been made whole

for the Government’s taking of its land if the

large amount expended by it for appraisals in

order to demonstrate the unfairness of the price

offered by the United States is not considered

an element of just compensation * * *,

Just compensation in the constitutional sense, how-

ever, “is for the property and not to the owner.” Mo-

nongahela Navigation Co. v. United States, 148 U.S.

312, 326 (1893). The traditional definition of the

measure of just compensation guaranteed by the Fifth

Amendment is “the full monetary equivalent of the

property taken.”’ United States v. Reynolds, 397 U.S.

14, 16 (1970); United States v. Miller, 317 U.S. 369,

373 (1943); Phelps v. United States, 274 U.S. 341,

344 (1927). This definition excludes incidental and

consequential! losses that may be incurred by the owner

in the course of condemnation litigation or otherwise.

See Mitchell v. United States, 267 U.S. 341, 345

(1925) (destruction of an ongoing business) ; United

States ex rel. T.V.A. v. Powelson, 319 U.S. 266, 281

(1943) (frustration of plans); United States v.

Petty Motor Co., 327 U.S. 327, 377 (1946) (expenses

of relocation). The owner is to be put into as good

a position pecuniarily a$ if his property had not been

taken, but only in the sense that he must receive the

full and fair market value of the property interest

taken at the time of the taking. United States v.

General Motors Corp., 323 U.S. 373, 379 (1945);

see Olson v. United States, 292 U.S. 246, 255 (1934).

The decision in this case contravenes these princi-

ples. Rather than determining what award was re-

quired to compensate the Bodeaw Company for the

property taken, the court of appeals considered what

was required to compensate Bodcaw for the losses

and expenses associated with the entire condemnation

proceeding. But the expenses of the condemnation

litigation, such as the appraisal fees in this case,

cannot be included in the measure of just compensa-

tion without substantially broadening the traditional

meaning of the constitutional guarantee.

Moreover, to include appraisal fees as part of just

compensation in some cases and not in others, as

the court has ruled, offends the purpose and the

integrity of the Fifth Amendment’s guarantee. The

amount that is constitutionally required to compen-

sate the owner for the property taken does not de-

pend on the circumstances of the litigation, the his-

tory of negotiations between the parties, or the

difficulty of proving the value of the property. The

meaning of ‘just compensation” does not vary accord-

ing to the court’s judgment of the reasonableness of

the government’s conduct in negotiating for the prop-

erty, or the problems or expensés encountered by the

landowner in trying to maximize his recovery in the

condemnation proceeding. Cf. United States v. Petty

Motor Co., supra, 327 U.S. at 377-378; Olson v.

United States, supra, 292 U.S. at 255-256.

Furthermore, if appraisal fees are part of the

constitutionally required “just compensation,” it is

difficult to understand, as Judge Cowen noted, how

witness fees can be excluded. It is not enough to

say, as the court did, that witness fees have tradi-

tionally been viewed as non-compensable costs (App.

A, infra, at 7a). For if appraisal fees must be re-

imbursed as a matter of constitutional compulsion,

the Constitution would equally require the payment

of witness fees, notwithstanding any statutory rule

or common-law tradition to the contrary. See United

States v. Cors, 337 U.S. 325, 331 (1949); Monongo-

hela Navigation Co. v. United States, swpra, 148 U.S.

at 327-328.

Congress, of course, has authority to provide for

payments to landowners beyond those required by

the Constitution. United States v. Willow River Co.,

324 U.S. 499, 510 (1945); Mitchell v. United States,

supra, 267 U.S. at 345-346; see United States v.

Realty Co., 163 U.S. 427, 440-441 (1896). Congress

has recently exercised this power, in a limited fash-

ion, in the Uniform Relocation Act of 1970, 42 U.S.C.

4601 et seq. That Act provides for the payment of

moving expenses, business and residential relocation

expenses, land transfer costs and other incidental

costs incurred by owners of property taken by the

government.

In enacting the Uniform Relocation Act, Congress

considered and rejected the allowance of appraisal

fees in most condemnation actions. Section 304 of

the Act, 42 U.S. 4654, provides for payment of at-

torneys’ fees, appraisal and engineering fees, and

other litigation costs in a few narrowly circumscribed

situations. See United States v. 4.18 Acres of Idaho

County, Idaho, 542 F.2d 786 (9th Cir. 1976). Pay-

ment of such fees is authorized under Section 304

only when the government abandons a condemnation

suit, when the court rules that the government can-

not acquire the property by condemnation, or when the

landowner is forced to file suit for just compensation

in the Court of Claims. See Rocca vy. United States,

500 F.2d 492 (Ct. Cl. 1974). Congress considered

and rejected requiring the reimbursement of litiga-

tion expenses, including appraisal fees, in all federal

condemnation actions, and expressed the understand-

ing that such expenses are not recoverable in the

absence of specific statutory authorization. The

House Report on the Act stated (H.R. Rep. No. 91-

1656, 91st Cong., 2d Sess. 25 (1970):

Ordinarily the Government should not be re-

quired to pay expenses incurred by property

owners in connection with condemnation proceed-

ings. The invitation to increased litigation is

evident. -

If any change is to be made in allocating the costs

and expenses of litigation in condemnation actions,

it should be made by Congress, not by the judiciary.

It particularly should not be made in the form of a

broad, loosely defined equitable power conferred on

the district courts as a matter of constitutional man-

date.” The considerations bearing on the allocation

“If appraisal fees and other litigation costs are to be com-

pensated, it has been suggested that the compensation should

be restricted to certain limited and well-defined circumstances.

For example, the Uniform Eminent Domain Code authorizes

payment of a limited amount of litigation expenses if the fact-

finder’s award is in excess of the condemnor’s last offer to set-

tle. Uniform Eminent Domain Code, Section 1205 (b), in Hand-

book of the National Conference of Commissioners on Uniform

State Laws (1974). The Code also recommends withholding

ordinarily taxable costs from the landowner when the award

falls short of the condemnor’s last offer. See Section 1205(c).

See generally Ayer, Allocating the Costs of Determining “Just

Compensation,” 21 Stan. L. Rev. 698, 717 (1969).

of such costs are complex, and the ad hoc exercise of

discretion by trial courts is not apt to serve the inter-

est of predictability in an area where that interest is

important.” Cf. F. D. Rich Co. v. Industrial Lumber

Co., 417 U.S. 116, 126-181 (1974). As this Court

stated in the analogous context of attorneys’ fee

awards, the circumstances under which such awards

should be made “and the range of discretion of the

* As the House Committee Report on the Uniform Reloca-

tion Act noted (H.R. Rep. No. 91-1656, swpra, at 25), a signifi-

cant alteration in the established principles of allocation of

litigation costs in condemnation actions would be likely to

decrease the settlement rate. After the Florida Supreme Court

held that appraisal fees were included within just compensa-

tion (see note 5, supra), the effect on condemnation litigation

in that State was described as follows:

The first consequence * * * was a sharp reduction in the

ratio of properties acquired by purchase, from over 90

percent before 1950, to less than 20 percent by 1957.

This, in turn, led in one instance to a jury trial involving

90 parcels of land owned by different defendants repre-

sented by 29 attorneys before one judge and jury for the

right-of-way for one road. Two other similar trials were

required for the right-of-way for this particular road.

In a small north Florida county, where the court in the

interest of justice elected to order separate trials, the

volume of eminent domain litigation soon occupied one-

third of the entire trial docket with resultant delay to all

litigation. * * * [footnotes omitted]

T. Britton, Effect in Florida of Requiring the Condemnor to

Pay Condemnee’s Entire Litigation Expense, Right-of-Way 15-

16 (October 1963).

courts in making those awards are matters for Con-

gress to determine.” Alyeska Pipeline Co. v. Wilder-

ness Society, 421 U.S. 240, 262 (1975).™

CONCLUSION

The petition for a writ of certiorari should be

granted. The Court may wish to consider summary

reversal.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

SANFORD SAGALKIN

Acting Assistant Attorney General

WILLIAM C, BRYSON

Assistant to the Solicitor General

RAYMOND N, ZAGONE

JACQUES B. GELIN

ANNE S. ALMY

Attorneys

SEPTEMBER 1978

“In a particularly apposite passage in Alyeska, this Court

noted (421 U.S. at 269):

[the] courts are not free to fashion drastic new rules

with respect to the allowance of attorneys’ fees to the

prevailing party in federal litigation or to pick and

choose among plaintiffs and the statutes under which they

sue and to award fees in some cases but not in others,

depending upon the courts’ assessment of tii iniportance

of the public policies involved in particular cases.

APPENDIX A

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 75-2328

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLANT CROSS-APPELLEE

Vv.

1,380.09 ACRES OF LAND, MORE OR LESS, SITUATED

IN CALDWELL PARISH, STATE OF LOUISIANA, ET AL.

and UNKNOWN OWNERS, DEFENDANTS

Bopcaw COMPANY, DEFENDANT-APPELLEE

CROSS-APPELLANT

June 1, 1978

Appeals from the United States District Court

for the Western District of Louisiana

Before COWEN *, GOLDBERG and AINSWORTH,

Circuit Judges

AINSWORTH, Circuit Judge:

The United States brought a proceeding to con-

demn land owned by the Bodecaw Company, and

deposited $99,650 in the court registry as the esti-

mated just compensation for the taking. The Bodcaw

Company responded that the amount tendered by the

* Senior Judge of the United States Court of Claims, sitting

by designation.

Government was inadequate, and also sought com-

pensation for the expenses of appraising the land and

for expert witness fees. A jury trial resulted in an

award in favor of the Bodeaw Company for $146,206

as the value of the land, and $20,512.50 was granted

to reimburse the appraisal and expert witness ex-

penses incurred by the company. The Government

contends that the award of appraisal and expert

witness fees is not authorized either by statute or by

the Fifth Amendment. We conclude that the ap-

praisal expenses in this case are part of the just

compensation mandated by the Fifth Amendment,’

but that the expert witness fees are not compensable,

and therefore remand for an allocation of the $20,-

512.50 between appraisal and expert witness fees,

and entry of an appropriate judgment.

The sole issue is whether the appraisal and expert

witness fees are elements of just compensation, or

whether such expenses are better characterized as

“costs” which cannot be taxed against the United

States in this condemnation proceeding.’ Thus, our

‘The Fifth Amendment to the United States Constitution

reads in part: “nor shall any person . . . be deprived of life,

liberty, or property, without due process of law; nor shall

private property be taken for public use, without just com-

pensation.”

* Without an authorizing statute, costs cannot be assessed

against the United States. See United States v. 4.18 Acres of

Land, 9 Cir., 1976, 542 F.2d 786, 788. However, 42 U.S.C.

§ 4654(a) provides that

(a) The Federal court having jurisdiction of a pro-

ceeding instituted by a Federal agency to acquire real

property by condemnation shall award the owner of any

function under the circumstances here is to interpret

the Fifth Amendment, not to construe a federal stat-

ute.

It is well settled that attorneys’ fees and court

costs are not part of just compensation, see, ¢.g.,

United States v. 2,353.28 Acres of Land, 5 Cir., 1969,

414 F.2d 965, 972, and cannot, with limited excep-

tions, be taxed to the Government in condemnation

cases.’ However, not every expense incurred in con-

nection with a condemnation proceeding is a noncom-

pensable “cost.” See United States v. Lee, 5 Cir.,

1966, 360 F.2d 449. In Lee the Government described

a tract of land by metes and bounds, but underesti-

mated the acreage. The landowner complained that

the estimated acreage was less than the amount stated

on his deeds. Nevertheless, the Government refused

to survey the tract, and the landowner then conducted

a survey which confirmed his suspicion that the size

of his property had been underestimated. The Fifth

Circuit noted the special need for an independent sur-

right, or title to, or interest in, such real property such

sum as will in the opinion of the court reimburse such

owner for his reasonable costs, disbursernents, and ex-

penses, including reasonable attorney, appraisal, and

engineering fees, actually incurred because of the con-

demnation proceedings, if—

(1) the final judgment is that the Federal agency

cannot acquire the real property by condemnation;

(2)-.the proceeding is abandoned by the United

States.

’ See 42 U.S.C. § 4654(a), at note 2 supra.

vey in that case, as the landowner had several deeds

to the property, on which the stated acreage of the

tract varied. The court recognized the validity of the

general proposition that costs cannot be taxed to the

United States in condemnation proceedings, but de-

termined that the expense of surveying the land to

determine the actual acreage was not such a cost. In

explaining its decision, the court stated that

“*Tj]Just compensation’ invokes the equitable

powers of the court, and courts must use their

equity powers to put an owner of land being

condemned in as good position as he would have

been if his property had not been taken... .”

Id. at 452.

In concluding, the court emphasized that it was not

holding that every survey undertaken by a landowner

faced with condemnation must be paid by the Gov-

ernment, but only that compensation was equitable

under the facts of that case.‘

* Lee has been noted by this court on three occasions. In

Henning Vv. Lake Charles Harbor & Terminal Dist., 5 Cir.,

1968, 387 F.2d 264, a state agency sought to condemn certain

property, and the proceedings were removed to federal court.

The district court allowed the landowners $5,400 as reasonable

compensation for the expenses of consulting geologists, engi-

neers and appraisers, relying on the rationale of Lee. The

Fifth Circuit court affirmed the $5,400 award on the basis of

Louisiana law, noting that this decision did not “intimate

any opinion as to what the rights of these property owners

might be in this regard under the Fourteenth Amendment.”

Id. at 267. Lee was cited for the proposition that just com-

pensation depends on the facts of each particular case in both

United States V. 161.99 Acres of Land, 5 Cir., 1975, 512 F.2d

The critical question is whether Lee’s reasoning in

regard to survey expenses applies to the appraisal

costs incurred in this case. The court in Lee empha-

sized that the determination of just compensation was

equitable in nature, and was therefore dependent on

the factual context and equities of each case. In addi-

tion, the Lee court stated that the central goal of just

compensation was to place the landowner in as good

a financial position as he would have been absent the

taking of his property. These factors are equally

present in this case. The land taken by the Govern-

ment was not of such character that accurate esti-

mates of value easily could be made.’ Instead, the

property taken stretched in a very narrow strip for

miles along the bank of a waterway, and had not re-

cently been appraised. The Government made no

effort to conduct an on-site appraisal until 1974,

nearly three years after this suit was filed and the

65, 66, and Porter v. United States, 5 Cir., 1973, 473 F.2d

1329, 1334.

In United States v. 71.29 Acres of Land, W.D. La., 1974, 376

F.Supp. 1221, 1227, the district court allowed compensation

for “costs, fees, and expenses paid to independent, professional

appraisers,” relying on Lee and Henning. The district court

noted the Lee court’s emphasis on the role of equitable consid-

erations in determining the aprropriate amount of just com-

pensation. /d.

°J. W. Bowen, an appraiser who testified for the Govern-

ment, admitted that “[t]his type of property, and by virtue

of its size, sir, is alinost an impossibility to appraise on the

straight market data approach, which is the most accepted

method in the courts for appraisals.”

original $99,650 estimate deposited in the court reg-

istry. The $99,650 offered by the United States was

nearly $45,000 less than the sum actually awarded

by the jury. Thus, the factors stressed by the court

in Lee—unusual factual circumstances and equitable

considerations—support the award of appraisal ex-

penses here. Under the facts of this case, we cannot

conclude that the Bodeaw Company has been made

whole for the Government’s taking of its land if the

large amount expended by it for appraisals in order

to demonstrate the unfairness of the price offered by

the United States is not considered an element of

just compensation. The noncompensability of attor-

ney’s fees and court costs does not require a holding

that every analogous expense is noncompensable. In

determining just compensation in condemnation cases,

our central concern is to do justice, and in this case

we find that justice and equity support the award

of appraisal fees. However, this court has previously

recognized that expert witness fees are viewed as

costs. See, e.g., Henning v. Lake Charles Harbor &

Terminal District, 5 Cir., 1968, 387 F.2d 264, 267

(“United States District Courts have no authority to

tax costs for compensation to expert witnesses in ex-

* United States v. 4.18 Acres of Land, 9 Cir., 1976, 542

F.2d 786, and other cases relied on by the Government, are

not to the contrary. In 4.18 Acres of Land, the Ninth Circuit

rejected the landowners’ demand for attorneys’ fees and ex-

penses. No specific reference was made to appraisal fees, and

therefore the court’s references to the policy of not encourag-

ing litigation must, therefore, be viewed in light of the fact

that attorney’s fees and expenses were the issue’in that case.

cess of the statutory ... allowance.’”’)’ Witness fees

are included as “costs” under 28 U.S.C. § 1920(3).

Since we accept the Lee court’s distinction between

expenses that are “costs” and those that are “part

of the just compensation contemplated under the Con-

stitution,” 360 F.2d at 452, we conclude that the tra-

ditional identification of expert witness fees with the

costs of litigation indicates that such expenses should

not be considered compensable in this condemnation

proceeding. We therefore remand the case to the

district court to determine the amount of expenses

attributable to expert witness fees, to deduct this

amount from the award, and to enter an appropriate

judgment for the balance.

AFFIRMED in part, REVERSED in part, and

REMANDED.

* The Henning court relied on Kirby Lumber Corp. Vv. Lowisi-

ana, 5 Cir., 1961, 298 F.2d 82, where the court flatiy stated

that expert witness fees “are never allowed in condemnation

cases in Federal Courts.” Jd. at 87. Nevertheless, Henning

allowed expert witness fees in a condemnation case. The

Henning court observed that the Louisiana Supreme Court

had held expert witness fees to be part of just compensation

under the Louisiana Constitution. The court in Henning con-

cluded that this was a substantive requirement of Louisiana

law, and that the federal court was bound to apply the state

law. Insofar as Henning applies state law to a state con-

demnation, it is directly at odds with the terse comment in

Kirby Lumber that expert witness fees cannot be recovered

in federal courts, as Kirby Lumber was also a Louisiana state

condemnation case. In any event, neither case is dispositive

on the issue of federal constitutional law that is presently

before us.

CowEN, Senior Judge, concurring in part and dis-

senting in part:

Although I concur in all other parts of the court’s

decision, I cannot agree that the condemnee is entitled

to recover the amount expended for an appraisal of

its land as a part of just compensation. The majority

bases its decision largely on United States v. Lee, 360

F.2d 449 (5th Cir. 1966). In reaching a contrary

conclusion, I need not disagree with that decision.

Rather, I would limit its application narrowly to the

peculiar facts which I think led the court to reach its

result in that case. As the majority has noted, the

circumstances in Lee were unusual. The Govern-

ment’s declaration of taking described the land by

metes and bounds but underestimated the acreage.

The landowner complained and asked the Corps of

Engineers to make a survey to determine the amount

of land involved, The Government refused and in-

formed the owner that he would have to furnish the

survey himself. He did so, and the Government later

stipulated that the tract actually contained 1,182.06

acres, whereas it had previously contended that there

were only 1,100 acres therein.

The facts before us are wholly different. What we

have here is the rather typical, oft-recurring situa-

tion where the landowner is dissatisfied with the

Government’s valuation, employs an expert to ap-

praise his land, and then utilizes the appraiser as an

expert witness in litigation for the purpose of at-

tempting to persuade the court to increase the Gov-

ernment’s valuation of the property. The majority

recognizes that the fee paid the appraiser as an ex-

pert witness is not recoverable and has reversed the

district court on that point. Nevertheless, the major-

ity separates the appraisal fee from the other amounts

paid the appraiser, classifies the fee as.a non-litiga-

tion expense, and declares that it is recoverable as a

part of just compensation. In my opinion, the dis-

tinction is untenable. The fee paid for the appraisal

is an integral part of the litigation expenses as fully

as services performed by an attorney in preparation

for a trial, or the examination of books and records

by an accountant in preparation for his testimony

in court on accounting issues. Yet, I feel confident

that the majority would readily agree that no part

of the attorney’s or accountant’s fees would be recov-

erable in a Federal condemnation action.

Ever since the Supreme Court handed down its

decision in Dohany v. Rogers, 281 U.S. 362, 50 S.Ct.

299, 74 L.Ed. 904 (1930), this court and other courts

have held that attorneys’ fees and other expenses in-

curred by the condemnee are not embraced within the

concept of “just compensation for land taken by emi-

nent domain.” United States v. 2,858.28 Acres of

Land, etc., State of Fla., 414 F.2d 965, 972 (5th

Cir. 1969). In the absence of an authorizing statute,

courts may not award a judgment against the United

States for costs or other litigation expenses. United

States v. Worley, 281 U.S. 339, 344, 50 S.Ct. 291, 74

L.Ed. 887 (1930); United States v. 28.94 Acres of

Land, Floyd Co., Com. of Va., 325 F.Supp. 330 (W.D.

Va. 1970).

10a

There is ample authority for the proposition that

the 1966 amendment of 28 U.S.C. § 2412 which au-

thorizes the awarding of costs to the prevailing party

in litigation involving the United States, is not ap-

plicable in condemnation proceedings. United States

ex rel. T. V. A. v. Easement & Right-of-Way, 452

F.2d 729 (6th Cir. 1971), and cases cited therein. No

contention to the contrary has been made in this case.

Henning v. Lake Charles Harbor and Terminal Dis-

trict, 387 F.2d 264 (5th Cir. 1968), relied upon by

the condemnee, is obviously inapposite. It involves a

state condemnation action and the application of

Louisiana law, which authorizes the recovery of ap-

praisal fees as costs, rather than as a part of just

compensation, in such actions. United States v. 71.29

Acres of Land, 376 F.Supp. 1221 (W.D. La, 1974),

also relied on by the condemnee, is a Federal con-

demnation case. The court there based its decision

on and quoted from Henning, and declared that the

landowners were entitled to recover the fees paid to

appraisers as costs “especially under the applicable

Louisiana law, as followed by the Fifth Circuit [in

Henning] relative to taking of Louisiana property.”

Thus the district court, in following Henning, treated

the fees paid the appraisers as litigation costs and

permitted the landowners to recover such costs by

applying Louisiana law rather than Federal law.

When section 304 of the Uniform Relocation As-

sistance and Real Property Acquisition Policies Act

of 1970, 42 U.S.C. § 4654(a) was enacted, Congress

made an exception to the long-established rule that

lla

the appraisal fees and other expenses incurred by the

owner because of condemnation proceedings may not

be included in an award against the United States.

The statute, Pub.L. 91-646, provides that reimburse-

ment for such expenses shall be awarded to the con-

demnee only if:

(1) The final judgment is that the Federal

agency cannot acquire the real property by

condemnation or,

(2) The proceeding is abandoned by the United

States.

Neither of these conditions is met in this case.

As the Ninth Circuit has explained in United

States v. 4.18 Acres of Land, etc., 542 F.2d 786, 788

(1976), Congress intended that section 4654(a)

should be construed as creating only a narrow ex-

ception to the general rule which forbids the recovery

of appraisal fees and expenses incurred by the owner,

it being the purpose of Congress to discourage liti-

gation in Federal condemnation proceedings. This

holding is supported by the following statement in

H.Rep. 91-1656, 91st Cong. 2d Sess., (3 U.S. Code

Cong. and Admin. News, p. 5875 (1970) ):

Ordinarily the Government should not be re-

quired to pay expenses incurred by property

owners in connection with condemnation proceed-

ings. The invitation to increased litigation is

evident.

The majority has emphasized the fact that on ac-

count of its size, it was very difficult to appraise the

value of the property taken on the basis of available

l2a

market data. This is not an unusual situation. It is

common knowledge that in many condemnation cases,

there have been no recent sales of comparable prop-

erties. Other methods, including the use of expert

testimony, must be used frequently to ascertain the

fair market value.

Under the court’s holding today, when a condemna-

tion proceeding is hereafter instituted in the Fifth

Circuit, the condemnee may employ an expert to ap-

praise his land, utilize the appraiser as an expert

witness in litigating the valuation issue, and if no

market data on sales of comparable property are

available, he may recover the fee paid for the ap-

praisal as an element of just compensation. In my

opinion, such a result is contrary to the rule which

the courts have followed since Dohany vy. Rogers,

supra, was handed down by the Supreme Court and

is also in direct conflict with what Congress intended

when it enacted Pub.L. 91-646, now codified as 42

U.S.C. § 4654(a).

13a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 75-2328

D. C. Docket No. CA 16,596

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLANT CROSS-APPELLEE

Vv.

1,380.09 ACRES OF LAND, MORE OR LESS, SITUATED

IN CALDWELL PARISH, STATE OF LOUISIANA, ET AL.

and UNKNOWN OWNERS, DEFENDANTS

BoDCAW COMPANY, DEFENDANT-APPELLEE

CROSS-APPELLANT

Appeals from the United States District Court

for the Western District of Louisiana

Before COWEN *, GOLDBERG and AINSWORTH,

Circuit Judges

JUDGMENT

This cause came on to be heard on the transcript

of the record from the United States District Court

* Senior Judge of the United States Court of Claims, sitting

by designation.

l4a

for the Western District of Louisiana, and was ar-

gued by counsel;

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this Court that the

judgment of the said Discrict Court in this cause be,

and the same is hereby, affirmed in part and reversed

in part; and that this cause be, and the same is

hereby remanded to the said District Court in ac-

cordance with the opinion of this Court;

It is further ordered that each party bear their

own costs on appeal in this Court,

June 1, 1978

CowEN, Senior Judge, concurring in part and dis-

senting in part.

lda

APPENDIX C

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

MONROE DIVISION

Civil Action No. 16,596

UNITED STATES OF AMERICA

v8.

1,380.09 ACRES OF LAND, MORE OR LESS, SITUATED

IN CALDWELL PARISH, STATE OF LOUISIANA, and

BoDCAW COMPANY, ET AL., and UNKNOWN OTHERS

AMENDED JUDGMENT

This cause coming on for trial at Monroe, Louisi-

ana, on January 29, 1975, the Plaintiff appearing by

and through Messrs. Gerald T, Levin, H. David Barr

and Levin H. Harris, Assistant United States Attor-

neys, and the Defendant, Bodcaw Company, appear-

ing by the firm of Shotwell, Brown & Sperry, by

Messrs. Burt W. Sperry and L. Michael Ashbrook,

its Attorneys; the jury was thereupon duly impaneled

and sworn to try the issue of just compensation in

the above entitled case, the Defendant assuming the

burden of proof, at which time trial was had before

said jury, witnesses sworn and testified, arguments

had and instructions as to the law given by the

Court; whereupon on the 31st day of January, 1975,

the jury did retire for deliberation and after delib-

erating did on the same day return into Court a

16a

verdict in favor of Defendant, Bodeaw Company, in

the amount of $146,206.00, as just compensation for

the property taken. The jury found no betterment

to the Defendant’s remaining property by virtue of

the improvements planned by Plaintiff.

It further appearing from the record in this action

that on March 18, 1971 Plaintiff instituted this con-

demnation proceeding by filing the complaint and

declaration of taking, and deposited in the registry

of this Court the sum of $99,650.00 as just compen-

sation for the taking of the lands set out in the

declaration of taking and complaint in combination

filed herein,

It further appearing from the record in this mat-

ter that Defendant, Bodcaw Company, filed a motion

to have its appraisal costs and expert witness fees

assessed against Plaintiff. The Court having con-

sidered the Memorandum of Authorities filed by

Plaintiff and Defendant, rendered written reasons

for judgment dated and filed March 14, 1975 sustain-

ing Defendant, Bodeaw Company’s motion to assess

its appraisal costs and expert witness fees in the

amount of $20,512.50 against the Plaintiff, United

States of America.

NOW, THEREFORE, IT IS ORDERED, AD-

JUDGED AND DECREED as follows:

1. Defendant, Bodecaw Company, is the former

owner of the property taken by this condemnation

proceeding and fully set out in the complaint for

condemnation and declaration of taking filed March

17a

18, 1971 and as such is entitled to the just compen-

sation awarded for the taking of the land by the

Plaintiff, United States of America, in the sum here-

inafter set forth.

2. The just compensation due Bodeaw Company

from the Plaintiff, United States of America, for the

taking of the lands owned by Bodeaw Company and

set out in the complaint in condemnation is ONE

HUNDRED FORTY SIX THOUSAND TWO HUN-

DRED AND SIX AND NO/100 ($146,206.00) DOL-

LARS; toward payment of this compensation the

Plaintiff, United States of America, has heretofore

deposited NINETY NINE THOUSAND SIX HUN-

DRED FIFTY AND NO/100 ($99,650.00) DOL-

LARS in the registry of this Court as estimated just

compensation for the taking of Defendant, Bodcaw

Company’s lands with the filing of the declaration of

taking, which sum Defendant, Bodcaw Company, has

withdrawn from the registry of the court on July 29,

1971; consequently, Plaintiff, United States of Amer-

ica, must deposit in the registry of this Court a defi-

ciency sum in the amount of FORTY SIX THOU-

SAND FIVE HUNDRED FIFTY SIX AND NO/100

($46,556.00) DOLLARS,

8. In addition to the just compensation awarded

Defendant, Bodeaw Company, in paragraph 2 above,

the Plaintiff, United States of America, shall pay the

Defendant, Bodcaw Company, interest at the rate of

six percent (6%) per annum on the principal defi-

ciency sum of FORTY SIX THOUSAND FIVE

HUNDRED FIFTY SIX AND NO/100 ($46,556.00)

DOLLARS from March 18, 1971 until the date that

18a

such deficiency sum is deposited into the registry of

this Court, at which time interest shall cease entirely.

4. In addition to the just compensation awarded

Defendant, Bodcaw Company, in paragraph 2 above,

the Plaintiff, United States of America, shall pay the

defendant, Bodeaw Company, TWENTY THOU-

SAND FIVE HUNDRED TWELVE AND 50/100

($20,512.50) DOLLARS for expenses incurred in

appraisal costs and expert witness fees.

DATED at Shreveport, Louisiana, this 23rd day

of June, 1975.

/s/ Tom Stagg

District Judge

APPROVED as to form and content:

GERALD T, LEVIN

H. DAVID BARR

LEVIN H. HARRIS

P. O. Box 33

Shreveport

By: /s/ Levin H. Harris

LEVIN H. HARRIS

Assistant U. S. Attorney

Attorneys for United States

of America

SHOTWELL, BROWN & SPERRY

708 Ouachita Bank Building

Monroe, Louisiana 71201

Telephone (318) 322-6176

By: /s/ Burt W. Sperry

Burt W. SPERRY

Attorneys for Bodeaw Company

19a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF LOUISIANA

MONROE DIVISION

C. A. No. 16,596

UNITED STATES OF AMERICA

versus

1,380.09 ACRES OF LAND, MORE OR LESS, SITUATED

IN CALDWELL PARISH, STATE OF LOUISIANA, and

BoDCAW COMPANY, ET AL. and UNKNOWN OWNERS

RULING ON MOTION

A condemnation proceeding was instituted by the

United States of America against defendant Bodcaw

Company, on March 18, 1971 by the filing of a com-

plaint and declaration of taking. On the same day,

Plaintiff deposited into the registry of the Court, as

estimated just compensation for the taking, the sum

of $99,650. Defendant took the position that the

money deposited did not constitute a just compensa-

tion.

The action was tried before a jury on the issue of

just compensation, and on January 31, 1975 the jury

rendered a decision in favor of defendant in the

amount of $146,201.11, as just compensation for the

property taken. The jury found no betterment to the

defendant’s remaining property by virtue of the im-

provements planned by plaintiff.

20a

As a result of the condemnation, defendant Bodcaw

Company was required to employ appraisers and ex-

pert witnesses in order to establish the amount of

just compensation to which it was entitled and to

defend against plaintiff’s contention of betterment.

This employment resulted in the incurrence of ap-

praisal costs and expert witness fees in the amount

of $20,512.50." Presently before the Court is a mo-

tion on behalf of Bodeaw Company to have these

appraisal costs and expert witness fees assessed

against plaintiff.

This question has previously been presented to and

answered by the Fifth Circuit Court of Appeals and

by the United States District Court for the Western

District of Louisiana. In United States v. 71.29

Acres of Land, More or Less, in Catahoula, et al

Parishes, 376 F. Supp. 1221 (W.D.La. 1974), the

Court stated:

“We conclude, accordingly, that as a matter

of equity, and constitutional ‘just compensation’,

the property owners here are entitled to reim-

bursement of their appraisal costs and fees, as

evidenced and stipulated.” 376 F.Supp. 1221 at

1227.

The holdings of the Fifth Circuit are to the same

effect. United States v. Lee, 360 F.2d 449 (1966)

and Henning v. Lake Charles Harbor and Terminal

District, 387 F.2d 264 (1968).

1See Exhibits “A”, “B” and “C”, attached to defendant’s

motion.

2la

Of course, the landowners are entitled only to a

reasonable award of appraisal costs and expert wit-

ness fees. However, plaintiff has not challenged the

reasonableness of the amounts shown by the defend-

ant’s exhibits,’ and this Court does not find the

amounts unreasonable. Accordingly, the motion on

behalf of Bodeaw Company to assess its appraisal

costs and expert witness fees against the United

States is hereby granted.

Defendant is hereby ordered to submit to this Court

a judgment approved as to form by the plaintiff and

consistent with the foregoing.

THUS DONE AND SIGNED in Chambers at

Shreveport, Louisiana, this 14th day of March, 1975.

Tom STAGG

United States District Judge

* Footnote 1, supra.

W oU. 8. GOVERNMENT PRINTING orrice; 1978 274039 126

SUPREME COURT OF THE UNITED STATES

DOCKET NO, 78-551

UNITED STATES OF AMERICA,

Petitioner,

VERSUS

BODCAW COMPANY,

Respondent,

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

MAY IT PLEASE THE COURT:

QUESTION PRESENTED

BODCAW COMPANY submits to the

Court that the question presented is

significantly narrower than that stated

in the petition for a writ of certiora-

ri in this case, and is more accurately

stated as follows:

In a case in which the party seek-

ing to take property by condemnation

has breached its duty to determine in

good faith the amount of just compen-

sation due, may a federal district

court award the owner of the land taken

the cost of appraising the land as an

element of just compensation guaranteed

by the Fifth Amendment?

CONSTITUTIONAL PROVISION iNVOLVED

The Fifth Amendment of the United

States Constitution provides in perti-

nent part:

" ..,nor shall any person...be

deprived of life, liberty or

property, without due process

of law; nor shall private prop-

erty be taken for public use,

without just compensation."

STATEMENT OF THE FACTS

The Petitioner's statement of the

facts in its petition is essentially

accurate, but omits one critical fact.

The United States recognized that the

Fifth Circuit's decision in this case

was made primarily because

"'The land taken by the Govern-

ment was not of such character

that accurate estimates of

value easily could be made’;

because the Government had

failed to conduct an onsite

appraisal of the property

until well after the suit was

filed; and because the amount

deposited by the Government

into the Court Registry -

$99,650 was more than

$45,000 less than the sum

hoe ey

a .

awarded by the jury." (Page 4 of

the petition for writ of certiora-

5 ee

The critical fact which is omitted

is the fact that not only did the Gov-

ernment fail to conduct an onsite ap-

praisal of the property until well after

the suit was filed, but also that at the

trial of this case the Government never

introduced any evidence of the value of

the property which was based upon an

onsite appraisal. Therefore, the only

evidence regarding the value of the

property which was based upon an actual

onsite appraisal of the property was

introduced by Bodcaw Company, which had

incurred the expense of obtaining those

appraisals.

REASONS FOR DENYING THE PETITION

The Government asserts three rea-

sons for its contention that this Court

should grant a writ of certiorari in

this case. The Government's first con-

tention is that the decision of the

Court of Appeals is contrary to this

Court's decision in Dohany v. Rogers,

281 U.S. 362 (1930). The second is an

alleged substantial impact of the case

on federal land acquisition, with the

Government asserting that this case is

not in fact unusual as held by the

Fifth Circuit. Finally the Government

contends that the Fifth Circuit deci-

sion "reflects a fundamental miscon-

ception of the scope of the Just Com-

pensation Clause of the Fifth Amendment."

(Petition for writ of certiorati, page

13.)

The Decision Of The Fifth Circuit

Is Not Contrary To Dohany v. Rogers.

It is submitted that the principle

of just compensation contemplates an

actual payment of compensation prior to

the taking of property, and not merely

the opportunity for the property owner

to litigate his claim through the courts

to determine the amount of compensation

due. This principle was well stated in

Section 812 of Lewis on Eminent Domain,

3rd Ed. as follows:

"It seems to us that courts should

be guided by the following prin-

ciples and consideration in the

matter of costs: By the consti-

tution the owner is entitled to

just compensation for his pro-

perty taken for public use. He

is entitled to receive this com-

pensation before his property is

taken or his possession disturbed.

If the parties cannot agree upon

the amount, it must be ascertained

in the manner provided by law. As

the property cannot be taken until

the compensation is paid, and as

it cannot be paid until it is as-

certained, the duty of ascertain-

ing the amount is necessarily cast

upon the party seeking to condemn

the property, and he should pay

all the expenses which attach to

the process. Any law which casts

this burden upon the owner should,

in our opinion, be held to be un-

constitutional."' (Emphasis added.)

In Nichols, the Law of Eminent Domain,

(Rev. Srd Ed.), Vol 4A, Sect. 14.249,

at page 351, the author observed that:

"The owner of land taken by

eminent domain stands in a far

different position from a de-

fendant in an ordinary suit.

The latter has ordinarily

brought the trouble upon him-

self, if he is liable at all,

by breaking a contract or com-

mitting a tort, and it is only

just that he should pay the

costs of the legal proceedings.

Condemnation proceedings, on the

other hand, are brought against

aman because he happens to own

available land. If a decree of

condemnation is finally entered,

even after a contest on damages

only, it is, in a sense, a judg-

ment in favor of the condemnor

and consequently against the

owner, although the latter's con-

tention in respect to damage may

have prevailed. There would be

no justice in making the owner

pay the costs of determining the

compensation to which he is en-

titled by the constitution and,

in fact, to do so would deprive

him of his constitutional right

to full compensation for his

land ..." (Emphasis added. )

The Government on page 11 of its peti-

tion asserts that "it is required to

appraise the property before it initi-

ates negotiations for purchase" citing

the Court to 42 U.S.C. 4651(2) the

actual text of that statutory provision

provides that:

"(2) Real property shall be

appraised before the initiation

of negotiation, and the owner or

his designated representative.

shall be given an opportunity to

accompany the appraiser durin

his inspection of the property."

(Emphasis added, )

Therefore, the statute obviously con-

templates an actual onsite inspection

of the property so that it may be ap-

praised in accordance with the prevail-

ing standards of the profession. Such

an onsite inspection of the property

was never made prior to the institution

of this suit, and in fact the Govern-

ment did not offer into evidence any

appraisal of the property which was

based upon an actual onsite inspection

of the property in this case,

The decision rendered by the Fifth

Circuit in this case does not conflict

with this Court's decision in Dohany.

It was recognized by both the Trial and

Appellate Courts that litigation expen-

ses are generally not allowable in con-

demnation proceedings, and Bodcaw does

not seek general expenses of litigation

in this case. The principle for which

this case stands, as well as the case

le a I A I

of United States v. Lee, 360 F.2d 449

(U.S. App. 5th Cir., 1966) is simply

that when the Government breaches its

duty to make a good faith determination

of the extent and value of the property

taken prior to institution of suit and

thereby forces the landowner to take

that burden upon himself, the landowner

will be awarded reimbursement for those

expenditures, As stated in the Lee

case (involving the cost of a survey)

at page 452,

"The granting of the cost of the

Survey involved here to the Ap-

pellees, however, woes not

require any depacture from the

law as to costs to be borne by

the Government. When the Gov-

ernment condemns part of a land-

Owner's property by metes and

bounds, the burden should be on

the Government to determine cor-

rectly the acreage actually

enclosed by those metes and

bounds. When the Government

decides to ascertain the actual

acreage being taken by means

other than a survey on the

ground, and the condemnee is put

to the expense of showing the

correct acreage being taken, it

would be a violation of the Con-

stitution to make him bear the

cost of such survey, especially

when the Government is put on

notice that the acreage they

claim to be taking is less than

what is actually being condemned.

To hold otherwise would be to

deprive a landowner of his pro-

perty without due process of law.”

Therefore, the holding in this case,

like the holding in the Lee case, is not

contrary to the principle announced in

Dohany. This is illustrated by the fact

that the Fifth Circuit in this case has

allowed only recovery for the actual

cost of obtaining the appraisal, and

specifically denied recovery of the

expert witness fees of the same appra-~

isers at trial.

The Decision Of The Fifth Circuit

Will Not Have A Substantial Impact

On Federal Land Acquisitions

The United States contends that

the condemnation proceeding in this

case is not notably different from the

vast majority of litigated condemnation

suits since there is frequently a sig-

nificant difference of opinion regard-

ing the amount of compensation due and

expert witnesses regularly testified

to different values of property at

trial. The assertion that this case is

not unusual is simply untrue. This case

is not the usual situation in which two

or more expert witnesses have made an

actual inspection and evaluation of the

property and have, within the limits

of an acceptable high and low range of

values, reached different conclusions

based upon independent professional

judgment. It is in fact a case in

which the Government made no onsite

appraisal whatsoever prior to institu-

tion of the suit, and did not present

any evidence at trial based upon an

actual onsite appraisal.

In its attempt to illustrate the

alleged substantial effect on federal

land acquisition, the United States

cited this Court to the case of United

States v. 5,553.80 Acres in Concordia

Parish, Louisiana (Angelina Plantation

Farm) (W.D.La., No. 77-0491) (erroneously

reported as being Docket No. 77-0441 at

footnote 10 of page 12 of the petition

for writ of certiorari). Bodcaw sub-

mits to the Court that it is signifi-

cant (or at the very least a remarkable

coincidence) that the Lee case, this

case, and the Angelina Plantation Farm

case, all involve the Corps of Engine-

ers as the expropriating government

agency. (The Lee case involving their

failure and subsequent refusal to con-

duct on onsite survey, and this case

and the Angelina case involving their

refusal to conduct an onsite appraisal

of the property at issue prior to com-

mencement of expropriation proceedings. )

Although the Lee case was decided prior

to tne enactment of U.S.C. 42:4651,

both this case and the Angelina case

were commenced subsequent to its enact-

ment, and the Corps of Engineers could

easily have avoided the result reached

by the Fifth Circuit in this case and

by the trial judge in both this case

and the Angelina case simply by com-

plying with the provisions of that

statute. Had they done so, the consti-

tutional provision on which the decision

of the Fifth Circuit and the trial

court in this case was based would not

have been violated. In fact, compli-

ance with the Uniform Real Property

Acquisition Policy set forth in that

statute might have avoided the litiga-

tion entirely.

The Decision Of The Fifth Circuit

Correctly Applies the Fifth Amendment

Of The United States Constitution

Finally, the Government contends

that the Fifth Circuit misconstrued the

meaning of just compensation since that

principle is "for the property and not

to the owner" (page 14 of the petition

for writ of certiorari). Amplifying

that asserted principle, the Government

states on page 14 of the petition that

"The owner is to be put into as

good a position pecuniariiy as

if his property had not been

taken, but only in the sense

that he must receive the full

and fair market value of the

property interest taken at the

time of the taking." (Emphasis

added, )

The time of the taking is not only the

time at which the property is to be

valued for the purposes of just compen-

sation (because of possible increases

or decreases in value), but is also the

time at which just compensation must be

paid. If the expropriating authority

fails to make an onsite appraisal of

the value of the property in accordance

with the prevailing standards and prac~-

tices of that profession it is impos-

Sible for the United States to deposit

just compensation into the Registry of

the Court at the time the suit is filed.

In this regard, the Court is again

referred to the authorities quoted in

Section 1 of this brief. It is the

failure of the Government to fulfill its

obligation to determine the value of the

property in good faith which constitu-

tionally compels the award of appraisal

expenses to the property owner since he

is bearing the cost of fulfilling an

Obligation of the expropriating autho-

Fity.

The Government, still characteri-

Zing the appraisal fees awarded in this

case as costs and expenses of litigation

states that any change of policy should

be made by Congress, not by the Judici-

ary. It is submitted that the decision

in this case, as in United States v.

Lee was not made on the basis of judi-

Cial policy, but rather upon constitu-

tional compulsion, and the decision in

this case is consistent with the public

policy of the United States expressed

in U.S.C, 42;4651(2).

CONCLUSION

The result reached by the United

States Court of Appeals for the Fifth

Circuit is correct, and a writ of cer-

tiorari in this case should be denied.

The decision in the lower courts was

based upon the trial judge's extensive

knowledge of the case and the Fifth

Circuit's careful consideration of the

evidence, briefs and oral arguments.

If this Court should decide that fur-

ther review is necessary, the summary

reversal suggested by the United States

is particularly inappropriate.

Respectfully submitted,

BURT W, SPERRY

(Signed) GEORGE WEAR, JR.

GEORGE WEAR, JR. i

SHOTWELL, BROWN & SPERRY

708 Ouachita Bank Bldg.

Monroe, Louisiana 71201

Tel: (318) 388-4700

Attorneys for Bodcaw

Company

I, GEORGE WEAR, JR., one of the

attorneys for Bodcaw Company, Respon-

dent herein, and a member of the Bar of

“tA onngooac age = the United States,

y certify that on the S4day of

December’ oserved copies oF the ass

going Brief In Opposition To Petition

For Writ of Certiorari, on the United

States of America, Petitioner, by

mailing a copy thereof, postage prepaid

to Wade H. McCree, Jr., Sanford Sagal-

kin, William C. Bryson, Raymond N.

Zagone, Jacques B. Gelin and Anne S.

Almy, Department of Justice, Washington

D.C. 20530, its attorneys of record,

’

(Signed) GEORGE WEAR, JR

GEORGE WEAR, JR.

SHOTWELL, BROWN & SPERRY

708 Ouachita Bank Bldg.

Monroe, Louisiana 71201

Tel.: (318) 388-4700

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.