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ENRD Resource Manual

9. Responses To Challenges Of A Taking

  1. 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):

    1. File a motion to strike on behalf of the government; and
    2. Have such motion set down for an immediate hearing, if necessary.

  2. 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:

    1. If time permits, the answer or motion should be sent to the Department for comment before filing a responsive pleading;
    2. 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);
    3. 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
    4. Have the motion set for a hearing, if necessary, at the earliest possible date.

  3. 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:

    1. Answer of the defendant;
    2. 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
    3. Order of the court ruling on such motion.

[cited in USAM 5-15.540]