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ENRD Resource Manual 9. Responses To Challenges Of A Taking
Responses to Challenges of a Taking
[cited in USAM 5-15.540]
- Insufficient Defenses.
- If the answer filed by a defendant contains allegations or contentions which are insufficient as a matter of law, or objections to the taking which are not timely filed (see USAM 5-15.540):
- File a motion to strike on behalf of the government; and
- Have such motion set down for an immediate hearing, if necessary.
- Challenge of Right to Take.
- If the answer filed by a defendant raises the issue of the government's right to take the property, or a motion is filed by the defendant to dismiss the proceeding or to vacate the declaration of taking or the order for delivery of possession:
- If time permits, the answer or motion should be sent to the Department for comment before filing a responsive pleading;
- Otherwise, file a motion to strike on behalf of the government. (See Berman v. Parker, 348 U.S. 26; United States v. Carmack, 329 U.S. 230);
- In lieu of a motion to strike, you may file a motion for summary judgment and/or judgment on the pleadings as to the right of the government to condemn the property in question; and
- Have the motion set for a hearing, if necessary, at the earliest possible date.
- Notice to the Department.
- The Department must be notified promptly of the outcome of all hearings and arguments upon such motions, and you should send two copies of the following instruments to the Department:
- Answer of the defendant;
- Motion to strike (or other appropriate motion) if filed on behalf of the United States, and any memorandum of law filed in support thereof; and
- Order of the court ruling on such motion.
Updated February 19, 2015