U.S. v. Timmons

• Decision Date: 12 April 1982
• Docket Number: No. 80-7860,80-7860
• Citation: 672 F.2d 1373
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edgar TIMMONS, Jr., the group known as People Organized for Equal Rights, and other unknown individuals, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1373

672 F.2d 1373

UNITED STATES of America, Plaintiff-Appellee, v. Edgar TIMMONS, Jr., the group known as People Organized for Equal Rights, and other unknown individuals Defendants-Appellants.

No. 80-7860.

United States Court of Appeals Eleventh Circuit.

April 12, 1982.

Jack Greenberg, Bill Lann Lee, Eric Schnapper, New York City, for defendants-appellants.

James W. Moorman, Asst. Atty. Gen., Jacques B. Gelin, James C. Kilbourne, Attys., Kathryn A. Oberly, Susan Virginia Cook, Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before MORGAN, KRAVITCH and HENDERSON, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

This controversy comes before us framed as an action for ejectment brought by the United States against various individuals ¹ claiming ownership of land in Harris Neck Wildlife Refuge. Defendants answered asserting through numerous defenses and counterclaims that the United States had improperly acquired the property in 1943 from defendants' ancestors. It was further alleged that after 1948 defendants' ancestors had been illegally prevented from reacquiring the property pursuant to the Surplus Property Act of 1944, Pub.L. No. 457, 58 Stat. 765 (1944). The district court, on plaintiff's motion, dismissed all counterclaims and granted the United States summary judgment, finding that defendants' contentions were insufficient as a matter of law, barred by the applicable statutes of limitations or precluded by the doctrine of res judicata. Defendants were then permanently enjoined from further attempts to settle on Harris Neck Island. We have carefully reviewed the record before us and for the reasons stated below conclude that the district court's orders must be affirmed.

I

The historical background of Harris Neck as well as the immediate occurrences giving rise to the instant suit are essentially undisputed. The land now known as Harris Neck National Wildlife Refuge is situated among the chain of barrier islands and estuaries which form the coast of Georgia. At the time of the Civil War, the islands had become cotton and indigo plantations, cultivated by slaves. In 1865 the first of three Freedmen's Bureau Acts were passed by Congress ² authorizing the leasing of small parcels of land to newly emancipated slaves and other Civil War refugees. At the expiration of the leases, the occupants were allowed to purchase the land. Among those former slaves who acquired land in this manner was the father of defendant Edgar Timmons, Jr.

For the next three-quarters of a century, Harris Neck was used by black occupants primarily for subsistence farming. Then in 1942 the United States instituted proceedings to condemn approximately 2700 acres of Harris Neck Island, including the tracts now in issue, for a wartime army airfield. The government filed declarations of taking on January 24, 1943, under 40 U.S.C. § 258a, but final condemnation judgments were not entered until January and February of 1948. United States v. 1,200 Acres of Land in McIntosh County, Georgia, Civ. No. 56 (S.D.Ga.1948). ³ Airport facilities were constructed on the acquired property and used during the war by the Third Army Fighter Command.

Following the end of the war, Harris Neck Airport and the surrounding land was declared unneeded property under the Surplus Property Act of 1944. The United States conveyed the land by quitclaim deed dated June 24, 1948, to McIntosh County, Georgia, on the condition that it be used as a municipal airport. The record strongly indicates, however, that the county never attempted to use the property for an airport. Accordingly, on April 25, 1961, a notice of reversion of Harris Neck property from McIntosh County to the United States was recorded. Harris Neck National Wildlife Refuge was then established by an act of Congress in 1962. Pub.Law No. 80-537.

On April 27, 1979, defendant Timmons and others entered the Harris Neck Refuge, set up unauthorized campsites and expressed their intention to remain indefinitely. These individuals claimed to be properly on the land as it belonged to the 1942 title holders or their descendants such as Timmons. The United States filed a complaint in ejectment on April 30 in the United States District Court for the Southern District of Georgia. Defendants answered raising five defenses and asserting, on behalf of themselves and those similarly situated, five parallel counterclaims. Each defense or counterclaim was based on at least one of the following allegations: (1) the land was condemned without providing timely notice and without adherence to other due process requirements; (2) black landowners were compensated at a rate far below the fair market value; (3) defendants and other landowners were dissimilarly treated on the basis of race in violation of the Fifth Amendment; (4) an agent of the United States fraudulently assured black landowners at the time of taking that their lands would be returned after the war; and (5) from the time the property was declared surplus until it reverted from McIntosh County, the United States acted to deprive defendants of their civil rights in violation of the due process clause of the Fifth Amendment and 42 U.S.C. §§ 1981 and 1982. ⁴

Plaintiff did not reply but moved for dismissal of defendants' counterclaims and for summary judgment. After extensive briefing by the parties, the district court on June 23, 1980, granted both of plaintiff's motions but allowed defendants twenty days to bring to the court's attention any issues not addressed by the order. Defendants then moved for leave to file an amended answer adding claims that McIntosh County officials had engaged in a civil rights conspiracy against defendants and that Congress, in passing the Freedmen's Bureau Acts, meant to permanently dedicate Harris Neck to farming activities by ex-slaves and their descendants. Defendants further requested the joinder of McIntosh County officials as additional parties. The court denied these motions, and on August 25, 1980, a final order was entered granting plaintiff judgment for ejectment against defendants.

On appeal defendants argue that the lower court's dismissal of counterclaims and grant of summary judgment were improper as to three of its theories of relief: first, that the original condemnation judgment is void for failing to accord condemnees certain essential elements of due process; second, that the condemnation judgment transferring title to the United States is subject to attack through an independent action in equity due to plaintiff's fraudulent and discriminatory practices durings its procurement; and third, that counterclaims based on violations of sections 1981 and 1982 of the Civil Rights Act as well as the Fifth Amendment (Bivens action) are not barred by the applicable statutes of limitations. Finally, defendants argue that the court below should have granted their motions to join additional parties and to add counterclaims.

II

Defendants' first contention on appeal is that the trial court "simply ignored" claims that the original condemnation judgments were void for failure to accord black owners notice and opportunity to be heard. At oral argument defendants' counsel explained that this omission by the court was based on the belief that the issue had to be raised in a direct attack on the original judgment. Defendants therefore frame the first issue on appeal in terms of whether the district court erred in refusing to consider the notice issue. This issue is now inconsequential; for proceedings subsequent to the June 23 order preclude further consideration of whether service was timely made as well as whether the judgment was otherwise void.

After the circulation of the June 23 order but prior to the entry of final judgment, defendants ⁵ filed a motion in the original condemnation action requesting relief from judgment under Fed.R.Civ.P. 60(b)(4) and (6). ⁶ Defendants, in this direct attack, alleged that the 1948 judgments were void for the identical reasons alleged in the instant proceedings. On January 19 and June 29, 1981, the court issued two orders in United States v. 1,200 Acres of Land in McIntosh County, Georgia, Civ. No. 56 (S.D.Ga.1981), denying movant's requests for relief from judgment. The court found that on the face of the record the named movants or their ancestors had been properly served in 1942, that awards were made to movants or their ancestors in regard to the tracts in question, and that the condemnation judgments were not otherwise void. No timely appeal was taken from these orders.

It seems apparent that defendants' challenge to the condemnations is now barred under the doctrine of res judicata. This doctrine in part requires that

(a)ny right, fact of matter in issue and directly adjudicated, or necessarily involved in the determination of an action before a competent court in which a judgment or decree has been rendered upon the merits, is conclusively settled by the judgment therein and cannot again be litigated between the same parties and their privies, whether the claim, demand, purpose or subject-matter of the two suits is the same or not.

In Re Constructors of Florida, Inc., 349 F.2d 595, 599 (5th Cir. 1965). Consistent with these principles we are bound by the determination of a court in separate proceedings that service was perfected on the named defendants claiming an interest in Harris Neck or their ancestors and that due process was otherwise accorded.

Defendants argue that a judgment, rendered by a court without jurisdiction, is void and subject to collateral or direct attack. Jones v. Watts, 142 F.2d 575 (5th Cir. 1944); Comprehensive Merchandising Catalogs, Inc. v. Madison Sales Corp., 521 F.2d 1210 (7th Cir. 1975); see also McDonald v. Mabee, 243 U.S. 90, 37 S.Ct. 343, 61 L.Ed. 608 (1917); Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877); Thompson v. Whitman, 18...