|5-15.001||Area of Responsibility|
Policy Regarding Consent to Trial of Condemnation Cases by United States Magistrate
|5-15.003||Policy Regarding Use of Alternative Dispute Resolution in Condemnation Cases|
|5-15.100||Prior Approval Requirements|
|5-15.200||Organization of Land Acquisition Section|
|5-15.201||Categories of Litigation|
|5-15.300||Direct Referral Cases From Agencies to United States Attorney Offices Are Not Permitted|
|5-15.320||Assignment of Case Responsibility|
|5-15.321||Category 1 Matters|
|5-15.322||Category 2 Matters|
|5-15.500||General Procedures in Land Acquisition Litigation|
|5-15.511||Rule 71.1, Federal Rules of Civil Procedure|
|5-15.512||Declaration of Taking Act|
|5-15.514||Division Policy Regarding Trial of Land Condemnation Cases by United States Magistrates|
|5-15.515||Transmittal of Papers to the Land Acquisition Section|
|5-15.516||Transmittal of Record|
|5-15.520||Institution of Actions—Initial Documents Sent to United States Attorney|
|5-15.522||Preparing and Filing Complaints|
|5-15.523||Land Subject to Options or Contracts of Sale by Acquiring Agency|
|5-15.524||Notice to be Recorded in Local Land Records|
|5-15.532||Title Evidence Supplied by Acquiring Agency|
|5-15.533||Continuation of Title Evidence|
|5-15.538||Title Evidence—Curative Materials|
|5-15.540||Objections to Taking—Answer of Defendant|
|5-15.542||Objections to Taking—Notice of Appearance|
|5-15.543||Alteration of Estate Sought to Be Condemned|
|5-15.544||Revestment of Property Acquired by Declaration of Taking|
|5-15.545||Stipulation of Revestment|
|5-15.550||Determination and Payment of Just Compensation—Right to Trial by Jury or Commission|
|5-15.552||Retaining Independent Appraisers|
|5-15.553||Disbursement of Funds Deposited in Court|
|5-15.554||Refund of Excess Funds Deposited|
|5-15.555||Refund of Balance When Owner Not Locatable|
|5-15.556||Reimbursement in Certain Cases for Moving, Relocation, and Related Expenses|
|5-15.560||Post-Trial Motions—Notification to Division of Awards|
|5-15.562||Motions for New Trial—Objections to Commission's Awards|
|5-15.581||Contents of Judgment|
|5-15.582||Satisfaction of Deficiency Judgments|
|5-15.590||Recommendation With Respect to Appeals|
|5-15.592||Procedure in Recommending Appeal|
|5-15.600||Settlement and Dismissal of Cases|
|5-15.630||Authority of United States Attorneys to Settle Condemnation Cases|
|5-15.631||Limitations on Delegations|
|5-15.640||Transmittal of Compromise Offer to Land Acquisition Section—Recommendations with Respect to Acceptance|
|5-15.650||Dismissal or Abandonment of Condemnation Case|
|5-15.964||Selection of Qualified Appraisers and Other Experts|
5-15.001 - Area of Responsibility
The Land Acquisition Section is responsible for the institution and prosecution of condemnation proceedings on behalf of the United States, and for approving title to land acquired by the United States by purchase or condemnation.
5-15.002 - Policy Regarding Consent to Trial of Condemnation Cases by United States Magistrate
It is the policy of the Division to encourage, in appropriate cases, consent to the conduct of condemnation trials by United States Magistrates if the attorney in charge of the case determines that trial before a magistrate would be in the litigating interests of the United States. For a complete statement of this policy, see ENRD Resource Manual, Section 3.
5-15.003 - Policy Regarding Use of Alternative Dispute Resolution in Condemnation Cases
It is the policy of the Division to encourage, in appropriate cases, use of alternative dispute resolution in the conduct of litigation, including condemnations. For more information regarding ADR, consult the Office of Dispute Resolution (Web site at https://www.justice.gov/olp/alternative-dispute-resolution).
5-15.100 - Prior Approval Requirements
Prior approval requirements for the Land Acquisition Section are set forth in JM 5-2.000.
5-15.200 - Organization of Land Acquisition Section
The Section is administered by a Chief, a Deputy Chief, and one or more Assistant Chiefs. The Section is divided into a number of units.
- Litigation Unit. Attorneys assigned to the Litigation Unit litigate eminent domain cases for which responsibility is retained by the Land Acquisition Section. They also monitor and consult with responsible Assistant U.S. Attorneys on pre-trial, trial and post-trial activities in eminent domain cases where responsibility has been delegated to a U.S. Attorney's Office by the Land Acquisition Section.
- Title Unit. The Title Unit prepares opinions of title for land acquired by the United States by purchase pursuant to the provisions of 40 U.S.C. § 3111.
- Appraisal Unit. The Appraisal Unit is staffed by professional real estate appraisers. It reviews appraisals, settlement proposals and appraisal guidelines for cases in condemnation and provides assistance to Section attorneys and United States Attorneys in trial preparation and procedures.
5-15.201 – Categories of Litigation
Much of the litigation of the Land Acquisition Section is conducted pursuant to the following authorities:
- Act of August 1, 1888, c. 728, § 1, 25 Stat. 357, as amended, 40 U.S.C. § 3113 (Condemnation Act);
- Act of February 26, 1931, c. 307, § 1, 46 Stat. 1421, 40 U.S.C. § 3114 (Declaration of Taking Act);
- Fed. R. Civ. P. 71.1;
- 16 D.C. Code §§ 1351-1368 (1973 ed.) (federal land acquisition in the District of Columbia); and
- Joint Resolution of September 11, 1841, 5 Stat. 468, as amended, 40 U.S.C. § 3111 (Examination of Title Act).
5-15.300 - Direct Referral Cases From Agencies to United States Attorney Offices Are Not Permitted
Acquiring agencies are required to send land acquisition cases to the Land Acquisition Section for initial review and subsequent assignment. If a request to acquire an interest in real property by eminent domain is made directly to a United States Attorney Office, such request shall be forwarded by email to the Chief of the Land Acquisition Section. Actions to acquire land may only be initiated by a United States Attorney after a referral to the United States Attorney by the Attorney General, through the Land Acquisition Section.
[cited in JM 5-15.520]
5-15.320 - Assignment of Case Responsibility
The extent to which a United States Attorney is responsible for handling any condemnation case is determined by the Land Acquisition Section in accordance with ENRD Directive No. 2017-07. Condemnation matters are classified into two categories, as described at JM 5-15.321 and 5-15.322. A case may be reclassified at any time due to changed circumstances. When a case is the full responsibility of United States Attorney's Offices, the Land Acquisition Section will assign an attorney as the primary contact for transmittal and informational purposes in the transmittal letter.
5-15.321 - Category 1 Matters
Category 1 consists of cases in which there are no actual or anticipated policy questions, peculiar appraisal problems, novel legal questions, or claimed compensation in excess of $1,000,000. See ENRD Directive No. 2017-07. United States Attorneys will have full responsibility for Category 1 cases, subject only to:
- Such assistance on tactical or legal matters as they may request from the Land Acquisition Section; and
- Pursuant to ENRD Directive No. 2016-04, approval of the Department of Justice of any settlements in excess of $2,000,000 or under that amount when:
- For any reason, the compromise of a particular claim, as a practical matter, will control or adversely influence the disposition of related claims totaling an amount in excess of $2,000,000; or
- The revestment under 40 U.S.C. § 3117 of any land or improvements or any interests in land is involved, except in cases in which the land owner desires to remove buildings, trees and shrubs, crops, or fixtures attached to the realty which are not needed or desired by the government, provided that the exclusion has been approved by the local representative of the acquiring agency; or
- Because a novel issue of law or question of policy is presented, or for any other reason, the settlement offer should receive the attention of the Environment and Natural Resources Division of this Department.
The United States Attorney should email copies of proposed court papers to the assigned Land Acquisition Section attorney for information, comment, and suggestions as the case proceeds, and should cooperate in the reasonable implementation of all suggestions made.
[cited in JM 5-15.320]
5-15.322 - Category 2 Matters
Category 2 consists of cases in which there are actual or anticipated policy questions, peculiar appraisal problems, novel legal questions, or claimed compensation in excess of $1,000,000. See ENRD Directive No. 2017-07. Category 2 cases may be (1) the full responsibility of the Land Acquisition Section; (2) the joint responsibility of United States Attorneys' Offices and the Land Acquisition Section; or (3) the full responsibility of United States Attorney's Offices, subject to the consultation and reporting requirements set forth throughout JM 5-15.000. The participation of the Land Acquisition Section may range from mere counsel and advice, on the one hand, to management of the case on the other, depending upon national interests. The provisions of JM 5-1.324 are applicable to Category 2 matters.
[cited in JM 5-15.320]
5-15.500 - General Procedures in Land Acquisition Litigation
The instructions herein set forth deal in broad terms with general procedures peculiar to condemnation litigation.
5-15.511 - Rule 71.1, Federal Rules of Civil Procedure
Rule 71.1 of the Federal Rules of Civil Procedure governs the procedure to be followed in all cases for the condemnation of property under the power of eminent domain. All condemnation cases must be prosecuted in strict conformity with this Rule. Rule 71.1 provides that the general Federal Rules of Civil Procedure shall apply to all cases, except as otherwise provided in Rule 71.1.
5-15.512 - Declaration of Taking Act
The Declaration of Taking Act (see 40 U.S.C. § 3114) authorizes the United States to acquire an interest in land immediately upon the filing of a declaration of taking with a court and the deposit in the court of the estimated compensation stated in the declaration.
United States Attorneys must comply promptly with instructions from the Land Acquisition Section for filing of a declaration of taking and the deposit of estimated just compensation pursuant to the Declaration of Taking Act (see 40 U.S.C. § 3114). The final judgment should contain a finding by the court of the filing of the declaration of taking and the deposit of estimated compensation, the dates thereof, and an adjudication that title to the exact extent of the estate or interest described in the declaration is vested in the United States. The judgment should also contain an order for the surrender of possession if requested by the acquiring agency. Cases should be resolved as soon as practicable, both to minimize costs to the government and to compensate the landowner for the property taken.
Under the Declaration of Taking Act and Rules 71.1(j), Fed. R. Civ. P., the court may order that the money deposited as estimated compensation, or any part thereof, shall be paid forthwith to the rightful claimant. The purpose of the Declaration of Taking Act is, first, to give the government title to and possession of the land and to relieve the government of the burden of interest accruing on the amount of the deposit, and second, and of equal importance, to make funds available for immediate distribution to the former owner in the discretion of the court.
In furtherance of this purpose and in accordance with Fed. R. Civ. P. 71.1(j), United States Attorneys are required to actively assist landowners and the court, as amici curiae, in effecting prompt distribution of funds deposited pursuant to the Declaration of Taking Act. Detailed instructions with respect to distribution are set forth in the ENRD Resource Manual at 13.
Immediately upon the filing of a declaration of taking and the deposit of estimated compensation, the landowner and other parties interested should be notified by letter, by the United States Attorney of the deposit and the amount thereof and that government counsel will render assistance in effecting advance distribution without prejudice to the right of the landowner to claim a larger amount. A form letter with which there should be substantial conformance is found at the ENRD Resource Manual at 28.
[cited in JM 5-15.544]
5-15.514 - Division Policy Regarding Trial of Land Condemnation Cases by United States Magistrates
The Division issued a memorandum dated June 6, 1980, to all United States Attorneys, announcing the Department of Justice policy favoring consent to trial of land condemnation cases by United States Magistrates in appropriate circumstances, as defined in 28 U.S.C. § 50.11. The policy furthers the goals of the Federal Magistrates Act of 1979 (Pub. L. 96-82) and will also expedite trial in appropriate circumstances. All attorneys in the United States Attorneys' offices are encouraged to seek the consent of parties to trials, either by a magistrate or by a jury presided over by a magistrate, in appropriate cases. For a detailed statement of the Division's policy in this regard, see the ENRD Resource Manual.
5-15.515 - Transmittal of Papers to the Land Acquisition Section
The Land Acquisition Section must be informed promptly of all major steps taken in each case, such as the entry of scheduling orders, the dates of all trials and hearings and the results thereof, and the filing by the United States Attorney and any defendant of a notice of appeal or a motion for new trial. It is essential that there be strict observance of the foregoing rule. Email to the attorney assigned by the Land Acquisition Section and to a designated case management email, as applicable, will satisfy this requirement.
5-15.516 - Transmittal of Record
The United States Attorney shall include the assigned monitoring attorney on Electronic Case Filing service list or alternatively transmit by email to the Land Acquisition Section, at the stages of the case hereinafter designated, successive partial transcripts to be combined at the conclusion of the case into a complete transcript of record. No documents included in one transcript need be duplicated in any subsequent transcript.
Initial Transcript. Upon the institution of the case there shall be transmitted to the Land Acquisition Section an initial transcript, which shall contain the following documents: the complaint (see ENRD Resource Manual at 24 or 25) and the notice of condemnation (see ENRD Resource Manual at 27). If a declaration of taking is filed, the dated receipt of the clerk of the court for the money deposited as estimated compensation. If an order of possession (see ENRD Resource Manual at 44) is obtained, the order, any other papers filed in connection with the institution of the case and evidencing recordation of the declaration of taking and/or lis pendens in the local land records.
Intermediate Transcript. Upon the entry of any judgment determining just compensation there shall be transmitted to the Land Acquisition Section an intermediate transcript consisting of:
- the judgment together with a copy of the letter of transmittal if the judgment has been transmitted with a request for payment of a deficiency amount to the local representative of the acquiring agency as authorized at JM 5-15.582;
- all papers of whatever nature filed in the case prior to and including the date of entry of the judgment (but excluding copies of papers included in transcripts previously transmitted to the Land Acquisition Section);
- evidence of title, properly continued, see JM 5-15.533; and
- certificate as to parties in possession and mechanics’ liens. See JM 5-15.536.
When an intermediate transcript is transmitted to the Land Acquisition Section, the United States Attorney should state in the accompanying letter of transmittal that the transcript constitutes, or when combined with partial transcripts previously transmitted will constitute, a complete transcript of the record of the case to date. If there is no deficiency the intermediate transcript may be combined with the final transcript.
Final Transcript. Upon the entry of a final judgment there shall be transmitted to the Land Acquisition Section a final transcript consisting of:
- the initial judgment, unless copies of the judgment were previously transmitted to the Land Acquisition Section with the intermediate transcript;
- the dated receipt of the clerk of the court for any additional money deposited pursuant to a judgment determining compensation;
- evidence of title, properly continued as provided in JM 5-15.533;
All other related papers and curative data pertinent to the proceeding, such as affidavits, deeds, disclaimers (See ENRD Resource Manual at 49), releases, etc., necessary to show resolution of each defendant's claim;
Evidence that distribution or retention by the court clerk for five years pursuant to 28 U.S.C. § 2042 has been ordered of all funds which have been deposited in court by the government; and the final judgment vesting title in the United States.
[cited in JM 5-15.536; ENRD Resource Manual 19]
5-15.520 - Institution of Actions—Initial Documents Sent to United States Attorney
United States Attorneys will be advised when they have been authorized by the Land Acquisition Section under delegation of the Attorney General to acquire land on behalf of a federal agency. Accompanying the authorization to the United States Attorney to acquire the land will usually be the following documents, transmitted by email:
- The government official's letter to the Attorney General requesting the institution of condemnation proceedings, and citing the authority for the taking;
- Where immediate title is required, a declaration of taking and one copy thereof, to which will be attached a description of the land to be acquired and a map showing the land;
- In cases where a declaration of taking is to be filed, a check for the estimated compensation, or instructions indicating how the check will be provided to the United States Attorney; and
- Advice as to classification of the case and division of responsibility for the prosecution of the case between the United States Attorney and attorneys in the Land Acquisition Section. See JM 5-15.300.
On occasion the letter of transmittal may contain special instructions which will govern procedure if at variance with anything contained herein.
5-15.522 - Preparing and Filing Complaints
Upon receiving the letter authorizing the initiation of an action to condemn land, the United States Attorney shall:
- Secure from the acquiring agency the materials described in the ENRD Resource Manual at 4.
- Prepare the documents described in the ENRD Resource Manual at 5.
- File the complaint pursuant to the instructions in the ENRD Resource Manual at 6.
5-15.523 - Land Subject to Options or Contracts of Sale by Acquiring Agency
When the land involved in a condemnation case is the subject of a valid accepted option or contract of sale, executed both by the presumptive owners and by a duly authorized representative of the acquiring agency prior to the institution of the condemnation case, the accepted option or contract is binding upon the signatories thereto in the condemnation case. The accepted option or contract should be pleaded in the complaint in condemnation. The United States Attorney is authorized without the prior approval of the Attorney General to have a judgment entered in the amount of the accepted option or contract provided that the local representative of the acquiring agency has advised in writing that the land has not decreased in value due to any action of the owners since the date of the option or contract, and all special and unusual conditions and requirements of the option or contract, if any, have been performed. It is also necessary that a determination shall have been made that the optionors in the accepted option or the vendors in the contract of sale are the sole and only parties entitled to the just compensation, other than taxing authorities, lienholders and encumbrancers whose claims may be satisfied from the award.
The procedure for summary judgments under Rule 56, Fed. R. Civ. P., should be utilized in obtaining the entry of consent judgments on options and contracts of sale, but only after the expiration of the time for filing of answers or appearance by defendants, see JM 5-15.540 and 5-15.542.
[cited in ENRD Resource Manual 7; ENRD Resource Manual 11]
5-15.524 - Notice to be Recorded in Local Land Records
In conclusion with the institution of condemnation proceedings, a notice of the pendency of the action, sometimes called a lis pendens shall be filed or recorded among the proper local records, except in any jurisdiction where the law is settled that the commencement of the action is notice to all persons affected. If more than one county or other recording jurisdiction is involved, a separate notice is necessary for each.
The steps necessary for the commencement of record notice are determined by the law of the particular state where the land is located. In some states, it may be advisable to record both a lis pendens and either the declaration of taking or (in a complaint-only case) the final judgment vesting title in the United States.
[cited in JM 5-15.530; JM 5-15.537; ENRD Resource Manual 5; ENRD Resource Manual 6; ENRD Resource Manual 7]
5-15.525 - Service
Service of the notice of condemnation must be made in accordance with Fed. R. Civ. P. 4(c), (d), and (m). A copy of the complaint need not be served with the notice of condemnation. The Soldiers' and Sailors' Civil Relief Act of 1940 (54 Stat. 1178), as amended, is in full force and effect and is applicable to condemnation cases. The United States Attorney must investigate to determine whether any defendant who has not answered or filed an appearance is in military service with the Armed Forces or is in public Health Service on duty with the Armed Forces. The United States Attorney must comply strictly with the provisions of the Act by filing necessary affidavits and moving for the appointment of an attorney ad litem, when required.
Complete instructions with respect to service are set forth in the ENRD Resource Manual at 8.
[cited in ENRD Resource Manual 2; ENRD Resource Manual 7; ENRD Resource Manual 8]
5-15.526 - Possession
Where a declaration of taking has been filed, United States Attorneys must comply with instructions from the Land Acquisition Section requesting the entry of an order for the surrender of possession of property to the government. See ENRD Manual at 44. Unless the property is vacant the acquiring agency should be requested to advise that the necessary 90 days' written notice has been given of the date by which possession is required if any person lawfully occupying the property shall be required to move from a dwelling or to move his/her business or farm operation, as required by Section 301(5) of Public Law 91-646, approved January 2, 1971, 84 Stat. 1905. The acquiring agency should further be requested to provide an affidavit detailing the reason(s) the agency requires possession of the taken property. The affidavit is for use by United States Attorneys in the motion for possession. Notice of the entry of the order (ENRD Resource Manual at 44), and of the date provided therein for the surrender of possession are controlled by Fed. R. Civ. P. 5 and 77(d). Service of a copy of the order should be made upon the person in possession of the land in accordance with Fed. R. Civ. P. 5(b), or service should be made in the manner and within the time directed by the court in the order.
If the party in possession refuses to surrender possession as provided in the order, application should be made, in accordance with Fed. R. Civ. P. 70, for a writ of assistance to put the government in possession. Application for a citation in contempt under Rule 70 should not be made without the prior approval of the Land Acquisition Section.
[cited in ENRD Resource Manual 5]
5-15.530 - Title Evidence—Purpose
Federal Rule of Civil Procedure 71.1(c) provides that there shall be named defendants in condemnation cases all persons having or claiming an interest in the property condemned whose names can be ascertained by a reasonably diligent search of the local land records, considering the character and value of the property involved and the interest or estate to be acquired. Persons having an interest in property include those owning an estate in the land (e.g., fee owner, lessee, tenant) and those having a lien or encumbrance on the land (e.g., mortgagee, taxing authority, material person, mechanic). Evidence of title must, therefore, be obtained and examined for a determination of the necessary and proper parties defendant. Persons having (or claiming) an interest in the property at the time of the commencement of record notice, see JM 5-15.524 are necessary parties and must be joined in the action as defendants. By joining as defendants all persons disclosed by the title evidence as having a possible interest in the property as of the commencement of record notice, and, in the course of proceedings, by giving those parties notice and opportunity to be heard at the trial or hearing on just compensation, due process will have been afforded and the final judgment will be res judicata as to those parties. If the United States secures a judgment of condemnation fixing compensation and ordering distribution to the wrong person or to fewer than all persons entitled thereto, the party having a compensable interest who was omitted from the proceedings has been denied due process and is entitled to bring an action against the United States for just compensation. The United States may thus be compelled to pay twice for the same acquisition. Where the interest of the omitted party was a matter of record but was not disclosed by the title evidence, the United States may recover its loss from the title company or abstracter up to the limit of liability. See JM 5-15.534.
[cited in JM 5-15.536; ENRD Resource Manual 4]
5-15.532 - Title Evidence Supplied by Acquiring Agency
In condemnation proceedings the necessary evidence of title is made available to the Department by the acquiring agency. Since title insurance is the most commonly used form of title evidence, it is likely that the initial or preliminary title evidence will be in the form of a title commitment or binder, and the final title evidence (see JM 5-15.533) will be in the form of a title insurance policy. However, other forms of title evidence, such as abstracts or Certificates of Title (see ENRD Resource Manual at 48), are also acceptable. Copies of recorded documents reported may accompany the commitment, or if not, may be requested. Detailed guidelines for the preparation of title evidence in land acquisitions by the United States of America are found in the Regulations of the Attorney General Governing the Review and Approval of Title for Federal Land Acquisitions (2016), a copy of which is available at: https://www.justice.gov/enrd/page/file/922431/download . Attention is directed to Part 9. Acquiring Title by Condemnation.
5-15.533 - Continuation of Title Evidence
The evidence of title must be continued to a date subsequent to the recordation of the lis pendens or declaration of taking. On the basis of information, if any, disclosed by the continuation of the evidence of title, and the certificate of inspection and possession (see JM 5-15.536), any additional parties shown by the continuation to have, or who may claim to have, any interest in the estate taken must be joined as defendants in the case, and any changes in the naming of necessary and proper parties defendant must be effected. The procedure for adding, dropping, or substituting parties is by motion and order under Fed. R. Civ. P. 21 and 71.1(g) and (i). An amended complaint need not be filed. Detailed instructions with respect to continuing title evidence are set forth in the ENRD Resource Manual at 7 and in the Regulations of the Attorney General Governing the Review and Approval of Title for Federal Land Acquisitions (2016).
[cited in JM 5-15.516; ENRD Resource Manual 2]
5-15.538 - Title Evidence—Curative Materials
When transmitting title evidence to the Land Acquisition Section as part of a final transcript of record, there should be included evidence of the disposition of any outstanding compensable interests disclosed by the evidence of title which interests are not barred by the condemnation proceedings. For example, an official receipt for the payment of ad valorem taxes should accompany title evidence disclosing unpaid taxes which were a lien on property on the date of taking.
5-15.540 - Objections to Taking—Answer of Defendant
If a defendant wishes to raise an objection to the taking, he/she must answer within 20 days from receipt of notice (ENRD Resource Manual at 7), unless the time is extended. Detailed instructions with respect to responding to a challenge to the taking are set forth in the ENRD Resource Manual at 9.
[cited in JM 5-15.523; ENRD Resource Manual 9]
5-15.542 - Objections to Taking—Notice of Appearance
If a defendant does not object to the taking, but merely wishes to appear in the cause to assure notice of any future action to be taken therein, the United States Attorney may suggest that he/she file a notice of appearance, pursuant to Fed. R. Civ. P. 71.1(e)(1).
[cited in JM 5-15.523]
5-15.543 - Alteration of Estate Sought to Be Condemned
It may occasionally be to the advantage of all concerned to modify or change the estate being condemned. The Land Acquisition Section should be informed promptly of any suggestions which either the United States Attorney or the property owners may have concerning modification, alteration, or change of the estate or description of the property to be condemned, but no alteration of the pleadings may be made except upon receipt of appropriate authorization from the Land Acquisition Section, and consultation with the acquiring agency.
[cited in JM 5-15.650]
5-15.544 - Revestment of Property Acquired by Declaration of Taking
The Attorney General is authorized in any condemnation case to stipulate on behalf of the United States to revest in the landowner title to any property or any part thereof or interest therein which may have been taken by the United States by declaration of taking (40 U.S.C. § 3117). See JM 5-15.512. The necessity for the revestment of property acquired by declaration of taking generally occurs in two classes of cases:
- Where the estate taken is not the estate wanted. In cases in which through inadvertence or otherwise title has been taken to property or some portion thereof or an estate or interest therein not desired by the acquiring agency or found subsequently not to be needed for public use, United States Attorneys must obtain the prior authorization of the Land Acquisition Section for the revestment of property.
- Where a former landowner wishes to remove property not needed by government. In cases in which the landowner desires to remove buildings, trees and shrubs, crops, or fixtures attached to the realty which are not needed or desired by the government, United States Attorneys are authorized to enter into stipulations for the exclusion of property without securing the approval of the Land Acquisition Section provided that the exclusion has been approved by the local representative of the acquiring agency. However, if the property is of high value, the specific approval of the Land Acquisition Section should be obtained.
[cited in JM 5-15.545; JM 5-15.650]
5-15.545 - Stipulation of Revestment
The authority of United States Attorneys to enter into revestments is governed by the nature of the property to be excluded (see JM 5-15.544), but in the event of any question, specific instructions should be obtained from the Land Acquisition Section. Detailed instructions with respect to the exclusion or dismissal of land from proceedings are set forth in the ENRD Manual at 10.
In all cases in which a stipulation is entered into for the revestment of property, the stipulation must contain either a provision fixing the amount by which the just compensation, whether already determined or to be determined, shall be reduced by reason of the exclusion, or a provision to the effect that no claim of whatever nature for just compensation will be asserted in the case or otherwise for the property excluded. If, in the opinion of the acquiring agency, the property to be revested is of no value or the exclusion will result in a savings to the government by the avoidance of demolition or removal costs, the provisions of this paragraph shall not apply.
A stipulation relating to the removal of property not needed by the government, see JM 5-15.544, should also contain a provision limiting the time for removal by the owner of the property and providing that if the owner fails to remove the property within the prescribed time, the stipulation shall be of no force and effect.
5-15.550 - Determination and Payment of Just Compensation—Right to Trial by Jury or Commission
Federal Rule of Civil Procedure 71.1 provides that any party to a condemnation case may have a trial by a jury on the issue of just compensation by filing a demand therefor unless the court in its discretion orders that, because of the character, location or quantity of the properties to be condemned, or for other reasons in the interest of justice, the issue of just compensation should be determined by a commission of three persons appointed by the court. The rule further provides that trial of all issues shall otherwise be by the court.
In order to preserve the right to a trial by a jury or commission, a demand for a jury trial should be filed when the Land Acquisition Section requests such demand or the United States Attorney determines that it is in the interest of the United States that a jury trial should be demanded. In condemnation cases, the demand for a trial by jury should be endorsed upon the complaint in condemnation (ENRD Resource Manual at 24 or 25), and notice of the demand should be included in the notice of condemnation. See ENRD Resource Manual at 27.
United States Attorneys are authorized to waive jury trials if, in their discretion, it is in the interest of the United States to do so, except when contrary instructions are issued by the Land Acquisition Section as to a particular case.
If it is subsequently determined that the use of a commission is advisable, a motion should be made for the appointment of the commission. The motion should set forth the facts justifying the use of the commission. The order of court appointing the commission should include a finding of fact by the court as to the necessity for use of the commission. Instructions with respect to trial settings, or a hearing before a commission, are set forth in the ENRD Resource Manual at 11.
5-15.552 - Retaining Independent Appraisers
Following review of the appraisal submitted by the acquiring agency with the case referral and the Land Acquisition Section Appraisal Review Unit's comments regarding that appraisal, a United States Attorney may find it necessary and advisable to retain the services of an independent appraiser. Land Acquisition Section attorneys and review appraisers may be consulted for recommendation of possible candidates.
[cited in ENRD Resource Manual 12]
5-15.553 - Disbursement of Funds Deposited in Court
United States Attorneys are required to actively assist landowners and the court, as amicus curiae, in effecting prompt distribution of funds deposited into the registry of the court as just compensation. Copies of all orders of distribution (ENRD Resource Manual at 41) should be promptly transmitted to the Land Acquisition Section. Federal Rule of Civil Procedure 71.1(j), which relates to distribution, provides that the court and attorneys shall expedite the proceedings for distribution and for the ascertainment and payment of just compensation in cases in which a deposit is made. Government counsel should obtain promptly and furnish to the court all information available as to the state of the title to the property and any liens, taxes, and encumbrances thereon. Government counsel should also assist landowners in the preparation of motions for, and orders of, distribution, see ENRD Resource Manual at 33 and 41, and affidavits for execution by the claimants in support of motions for distribution. If landowners have counsel, government counsel should advise landowner’s counsel to prepare the motions, and work with landowner’s counsel to make certain that the Government’s interests are protected, i.e. by including distribution to lienholders if necessary. Care should be taken to see that a proper order is entered for the payment of all taxes and assessments due and exigible at the time of vesting of title in the United States. Unless serious doubt exists as to the real ownership of the property, government counsel should not delay distribution of just compensation for any extended period for the procurement of curative material for the elimination of defects of title but should rely upon the condemnation procedure for that purpose. Instructions with respect to procedures in disbursing funds deposited in court are set forth in the ENRD Resource Manual at 13.
5-15.554 - Refund of Excess Funds Deposited
After a deposit has been made to the registry of the court and it becomes necessary to have a part or all of it returned to the government (because of an agreement for revestment or an over-deposit of estimated compensation), the check representing such refund must be made payable to the Treasurer of the United States and forwarded to the Land Acquisition Section for distribution to the proper agencies.
5-15.555 - Refund of Balance When Owner Not Locatable
When funds cannot be disbursed because the owner cannot be located, or for other reasons, an order should be sought, as promptly as the court will entertain such orders, for the refund of the undistributed balance to the Treasury of the United States at the expiration of the five-year period pursuant to 28 U.S.C. § 2042. Action pursuant to this section becomes a ministerial duty of the clerk of the court. In the event a subsequent order is entered for a redeposit of the money for the purposes of withdrawal, it will be the duty of the clerk of the court to submit the court's order directly to the audit section of the Administrative Office of the United States Courts for processing with the Treasury Department. A copy of this order should also be sent to the Land Acquisition Section so that the records of the case will be complete. Although the United States Attorneys should assist the landowners in filing the motion to redeposit the funds and advise the court with reference thereto, no further action thereon by either the United States Attorney or the Department will be required to obtain the redeposit.
[cited in ENRD Resource Manual 13]
5-15.556 - Reimbursement in Certain Cases for Moving, Relocation and Related Expenses
The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 requires the payment by acquiring agencies of moving, replacement, relocation and related expenses of property owners and for certain expenses incidental to the transfer of title to the United States, including reimbursement to the owner for the pro-rata portion of real property taxes paid which are allocable to the period subsequent to the date of vesting title in the United States or the effective date of possession of such real property by the United States, whichever is earlier. Section 102(a) of this Act provides as follows:
The provisions of section 301 of title III of this Act create no rights or liabilities and shall not affect the validity of any property acquisitions by purchase or condemnation.
And, Section 102(b) provides as follows:
Nothing in this Act shall be construed as creating in any condemnation proceedings brought under the power of eminent domain, any element of value or of damage not in existence immediately prior to the date of enactment of this Act.
Representatives of acquiring agencies have been instructed to coordinate their activities under the authorizing statute with representatives of the Department of Justice to insure that no duplication of payment will result.
All inquiries by owners or tenants with respect to reimbursements under this statute should be referred to the local representative of the acquiring agency. No changes in existing practices and procedures in handling condemnation cases and particularly in negotiating for settlements in condemnation cases are required by this authorizing statute. However, United States Attorneys should advise the local representatives of the acquiring agency of any case in which an owner or tenant asserts a claim for expenses and other loss and damage alleged to have been incurred by such owner or tenant as a result of the moving of themselves, their families and possessions because of the acquisition of the land. This requirement for notice to representatives of the acquiring agency is particularly applicable in cases for the condemnation of the temporary use of property wherein claims may be asserted for moving costs under the rule established in General Motors Corporation v. United States, 323 U.S. 373 (1945).
[cited in JM 5-15.650; ENRD Resource Manual 10]
5-15.560 - Post-Trial Motions—Notification to Division of Awards
Immediately after hearing or trial, send executed Form LDN-18 (see ENRD Resource Manual at 62), together with a detailed report of the trial or hearing to the Land Acquisition Section with specific recommendations for future action. The ENRD Appellate Section will normally represent the United States on appeal.
5-15.562 - Motions for New Trial—Objections to Commission's Awards
The usual course of action, when awards materially exceed the government's testimony, is to move for a new trial, where the award was made by a jury, or to object to the award made by a commission. Procedures for United States Attorneys to follow with respect to motions for new trials and objections to a commission's award are set forth in the ENRD Resource Manual at 14.
5-15.580 - Judgments
The United States Attorney should take care that judgments in condemnation cases include an adjudication of all issues within the jurisdiction of the court. Separate judgments on the several issues in the case should be avoided whenever possible, thus, for example, an order of distribution should be included in a judgment determining compensation. Judgments should not contain recitals of pleadings, reports of commissions or the record of prior proceedings.
5-15.581 - Contents of Judgment
Judgments determining compensation should contain:
- A finding and adjudication of the right of the United States to condemn the property involved for public use;
- An adjudication that title to the exact estate or interest condemned is vested in the United States if the declaration of taking procedure has been used, or, if not, an adjudication that title to the exact estate or interest will vest in the United States upon payment of the just compensation into the registry of the court and entry of an order vesting title;
- Confirmation of the stipulation between the government and the landowners fixing the amount of just compensation or confirmation of the verdict of the jury or the award of a commission appointed by the court to determine compensation;
- An accurate legal description of the property, which may be referenced to the complaint or declaration of taking;
- A finding and adjudication of the right of the defendants to distribution of the just compensation;
- Provision for the payment of interest, if any, for which the government may be legally liable;
- Provision for any refund of money deposited into the registry of the court to which the government may be entitled; and
- An adjudication of any other issue not previously ruled upon formally by the court.
5-15.582 - Satisfaction of Deficiency Judgments
Upon the entry of judgments fixing compensation and ordering the deposit of deficiencies, the United States Attorney shall request a check for the necessary amount from local representative of the acquiring agency.
[cited in JM 5-15.516]
5-15.590 - Recommendation With Respect to Appeals
In any case where he/she believes substantial error has been committed, the United States Attorney shall immediately advise the Land Acquisition Section and the Division’s Appellate Section, and give his/her recommendations regarding appeal.
5-15.592 - Procedure in Recommending Appeal
If a United States Attorney wishes to recommend that a judgment be appealed, he/she should:
- Send the order of the court to the Land Acquisition Section and to the Division’s Appellate Section.
- Prepare a recommendation including a statement of the factual and legal issues involved, the rulings of the court which may be grounds for an appeal, and the reasons for his/her recommendations. The date from which the time for appeal runs should also be stated.
- Unless otherwise instructed, file a protective notice of appeal just prior to the expiration of the time within which such notice may be filed, but not before then. This is to allow the Department the benefit of the full period of time for appeal to study the case and reach a decision. The notice of appeal should be forwarded to the Land Acquisition Section and the Appellate Section immediately after filing.
The Department will advise the United States Attorney whether to order the transcript of testimony. Note the instructions at JM 5-8.000 and in JM Title 2, regarding the handling of appeals.
5-15.600 - Settlement and Dismissal of Cases
Except as set forth in JM 5-15.620 no case under the jurisdiction of the Land Acquisition Section may be settled or dismissed without specific or delegated authority from the Attorney General.
[cited in JM 5-5.210; JM 5-8.600]
5-15.611 - Partial Settlements
Overall settlements for all interest in a tract in a pending condemnation proceeding are much to be preferred over separate settlements for partial interests. Offers not including all interests in a tract will be approved only in exceptional cases and should be explained and justified fully.
5-15.620 - Settlement Procedures
Negotiations for compromise settlement should be undertaken by the United States Attorney with the cooperation of the local office of the acquiring agency. Negotiations should be initiated or entered into only after the appraisals have been thoroughly examined and found to be sound. If evaluations vary greatly, then consultations with appraisers first should be had to clarify or correct any possible misapplication of the facts or legal principles involved. If the appraisals are not satisfactory, or vary greatly, the United States Attorney should engage additional appraisers.
Settlement should never be sought for statistical purposes. Where settlement negotiations lead to an offer in any case that is deemed by the condemnation attorney to be a reasonable reflection of fair market value, in light of the pertinent appraisal reports, the risks and costs of trial and the effect of the settlement upon other pending cases, he/she is encouraged to consummate the settlement with dispatch, if it is within his/her authority to do so (see JM 5-15.630), or to furnish the settlement offer to the Land Acquisition Section for approval (see JM 5-15.640).
Detailed procedures with respect to settlements are set forth in the ENRD Resource Manual at 17.
[cited in JM 5-15.600; ENRD Resource Manual 11]
5-15.630 - Authority of United States Attorneys to Settle Condemnation Cases
The United States Attorneys are authorized, , pursuant to ENRD Directive No. 2016-04, and subject to the limitations imposed in JM 5-15.631, to accept or reject offers in compromise, without the prior approval of the Environment and Natural Resources Division, of claims against the United States for just compensation in condemnation proceedings in any case in which:
- The gross amount of the proposed settlement does not exceed $2,000,000.
- The compromise is approved in writing (the written approval to be retained in the file of the United States Attorney concerned) by the authorized field representative of the acquiring agency, if the amount of the settlement exceeds the amount deposited with the declaration of taking as to the particular tract of land involved;
- The amount of the compromise is compatible with the sound appraisal or appraisals upon which the United States would rely as evidence in the event of trial, with due regard for probable minimum trial costs and risks;
- The case does not involve the revestment of any land or improvements or any interest, or interests, in land under the Act of October 21, 1942, 56 Stat. 797 (40 U.S.C. § 3117); and
- The case does not involve a novel issue of condemnation law or question of condemnation practice and policy, or for any other reason, which would necessitate that the settlement offer should receive the attention of ENRD.
The United States Attorney concerned shall immediately forward by email to the Chief of the Land Acquisition Section an electronic report, in the form of an email, letter or memorandum, stating the action taken and the reasons therefore. Special care shall be taken to ensure that the report contains a statement as to what the valuation testimony of the United States and the landowners would have been if the case had been tried.
[cited in JM 5-15.620; JM 5-15.640; ENRD Resource Manual 2; ENRD Resource Manual 17; ENRD Resource Manual 18]
5-15.631 - Limitations on Delegations
The United States Attorney's authority to settle land acquisition cases may not be exercised under the circumstances specified in ENRD Directive No. 2016-04, including when:
- For any reason, the compromise of a particular claim, as a practical matter, will control or adversely influence the disposition of other claims;
- A novel question of condemnation law or a question of condemnation practice and policy is presented, or for any other reason, the settlement offer should receive the personal attention of the Assistant Attorney General in charge of the Environment and Natural Resources Division; or
- The agency or agencies involved are opposed to the proposed closing or dismissal of a case, or acceptance or rejection of the offer in compromise.
If any of the conditions listed above exists, the matter shall be emailed for resolution to the Assistant Attorney General, Environment and Natural Resources Division, in care of the Chief of the Land Acquisition Section.
[cited in JM 5-15.630]
5-15.640 - Transmittal of Compromise Offer to Land Acquisition Section—Recommendations with Respect to Acceptance
Every offer of compromise in a condemnation case, with the exception of those offers within the authority of the United States Attorney to accept or reject (see JM 5-15.630), which the United States Attorney considers may be recommended for acceptance must be submitted emailed to the Department for consideration and acceptance or rejection. The United States Attorney shall submit to the Land Acquisition Section with the offer in compromise his/her recommendation and what the valuation testimony of the United States and the landowners would have been if the case had been tried. Additional pertinent materials are all available appraisal reports.
The Land Acquisition Section should be advised of the recommendation of the local representative of the acquiring agency with respect to the proposed settlement. See the ENRD Manual at 43 for suggested forms of stipulation and judgment thereon. The forms for offers involving the revestment of property under 40 U.S.C. § 3117 (see ENRD Resource Manual at 30) must include the appraisals of the property to be revested and the appraised value of the interest to be retained by the United States.
[cited in JM 5-15.620]
5-15.650 - Dismissal or Abandonment of Condemnation Case
Condemnation cases must not be dismissed as to any of the land included in the instructions to condemn, nor may there be any change as to the interest or estate to be acquired unless expressly authorized by the Land Acquisition Section. (see JM 5-15.543 and 5-15.544). Orders of dismissal must be entered without prejudice. In the absence of a stipulation with the property owner in which he/she waives the right to costs, the federal court may award to the owner of any right, title or interest in such real property such sum as will in the opinion of the court reimburse such owner for his/her reasonable costs, disbursements and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of the condemnation proceeding, if the proceeding is abandoned by the United States. See Section 304(a), Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. § 4654 (see JM 5-15.556). The procedure for dismissal is set forth in Rule 71.1(i), Federal Rules of Civil Procedure. See ENRD Resource Manual at 31 for forms of stipulation and order.
5-15.964 - Selection of Qualified Appraisers and Other Experts
The selection and approval of competent, well-qualified appraisers and other experts for use at trial should be a joint effort of the litigating attorney and the Appraisal Unit of the Land Acquisition Section. Where full cooperation is not being received from an acquiring agency in regard to the employment of experts, the matter should be referred to the Land Acquisition Section for resolution.
[updated April 2018]