9. Responses to Challenges of a Taking
- 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;
- Have such motion set down for an immediate hearing, if
- 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.