United States v. 0.720 Acres of Land

• Decision Date: 16 May 2022
• Docket Number: CIVIL ACTION NO. 7:20-CV-00350
• Parties: UNITED STATES of America, Plaintiff, v. 0.720 ACRES OF LAND, MORE OR LESS, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

603 F.Supp.3d 482

UNITED STATES of America, Plaintiff,

v.0.720 ACRES OF LAND, MORE OR LESS, et al., Defendants.

CIVIL ACTION NO. 7:20-CV-00350

United States District Court, S.D. Texas, McAllen Division.

Signed May 16, 2022

Alyssa Marie Iglesias, Hilda M. Garcia Concepcion, US Attorney's Office, McAllen, TX, for Plaintiff.

Peter McGraw, Texas RioGrande Legal Aid, Brownsville, TX, for Defendants Jesus Alvarez, Jr.

David Louis Guerra, Office of the US Attorney, McAllen, TX, for Defendant U.S. Internal Revenue Service.

ORDER DENYING DEFENDANT JESUS ALVAREZ, JR.’S MOTION TO DISMISS AND GRANTING PLAINTIFF'S CROSS-MOTION TO STRIKE DEFENSES

Randy Crane, United States District Judge

I. Factual and Procedural Background

Now before the Court are Defendant Jesus Alvarez, Jr.’s "Rule 71.1(i)(1)(C) Motion to Dismiss Plaintiff's Complaint in Condemnation and Declaration of Taking" (Dkt. No. 29) and Plaintiff's "Cross-Motion to Strike Improper Defenses" (Dkt. No. 34). This case is one of a multitude of recent land condemnation actions filed here, the purpose for which is at the heart of the parties’ pending dispute. On November 3, 2020, Plaintiff filed its Complaint in Condemnation (Complaint) and Declaration of Taking (DOT) seeking to acquire a fee simple estate in Tract RGV-RGC-5067, consisting of 0.720 acres of land along the border between Starr County, Texas and Mexico (the property). (Dkt. Nos. 1, 2). The Complaint and DOT contain identical schedules identifying the authority and public purpose for the taking. (Dkt. Nos. 1 & 2, Schedules A & B). Plaintiff acquired title to the property on November 11, 2020, when it deposited $21,163.00 as estimated just compensation for the taking,¹ but has not sought possession. (Dkt. No. 5). The following persons or entities have an identified ownership interest in the property: Joel Alvarez, Jesus Alvarez, Jr., Eligio L. Alvarez, Jessica L. Alvarez Escobar, Maria Albesa Alvarez Hinojosa, Maria Esmeralda Alvarez Garza, Aleida Alvarez Hinojosa, Roman Alvarez, Maria Luisa Mireles Escobar, U.S. Internal Revenue Service (IRS), and Starr County Tax Assessor and Collector Ameida Salinas (County Tax Assessor). (Dkt. No. 61, Amended Schedule G).² Of these eleven interested parties, all of whom were served or waived service, only Defendants Joel Alvarez, Jesus Alvarez, Jr., and the IRS formally answered. See (Dkt. Nos. 1 & 2, Schedule G; Dkt. Nos. 27, 28, 62).³ Simultaneously with the filing of their Answers, on December 30, 2020, Joel Alvarez and Jesus Alvarez, Jr. filed the Motion to Dismiss the Complaint and DOT under Federal Rule of Civil Procedure 71.1(i)(1)(C), arguing that the stated public purpose for the taking—"to construct, install, operate, and maintain roads, fencing, vehicle barriers, security lighting, cameras, sensors, and related structures designed to help secure the United States/Mexico border within the State of Texas"⁴ —exceeds the limits placed by Congress when considered against the stated authority for funding that purpose: the Consolidated Appropriations Act of 2019,⁵ which Defendants read to limit use of the appropriated funds to fencing only. (Dkt. No. 29). In its response to the Motion, Plaintiff makes two procedural objections to dismissal, asserting that Rule 71.1 precludes Defendants from raising objections and defenses to a condemnation action in a motion to dismiss, and from seeking dismissal of the action after Plaintiff has acquired title. (Dkt. No. 34 at ¶¶ 17, 18). Plaintiff also responds in substance, taking issue with Defendants’ statutory interpretation and arguing that Plaintiff has the authority to use the cited appropriations for expenditures "rationally related" to the purpose set forth in the Complaint and DOT. (Id. at ¶¶ 19-26). Plaintiff's response concludes with the Cross-Motion to Strike Defendants’ related objections and responses contained within their Answers, asserting that that "[t]hese challenges are not legal defenses and lack merit[.]" (Id. at ¶¶ 27-33; see Dkt. No. 27 at ¶¶ 19-22; Dkt. No. 28 at ¶¶ 19-22).

The same day Plaintiff filed its response and Cross-Motion to Strike, on January 20, 2021, recently inaugurated U.S. President Joseph R. Biden issued a proclamation terminating the national emergency on the southern border declared by former U.S. President Donald J. Trump on February 15, 2019, and directing "careful review of all resources appropriated ... to construct a southern border wall."⁶ The Court deferred ruling on the Motions while Plaintiff undertook this review, pursuant to which the property became eligible for revestment of title in the original owners. Defendants Joel Alvarez and Jesus Alvarez, Jr. sought this remedy but have not been able to obtain it, apparently due to Defendants Roman Alvarez and Maria Luisa Mireles Escobar's desire to receive just compensation for the taking instead.

Defendant Joel Alvarez passed away on November 27, 2021, and the Court granted Plaintiff's motion to dismiss him from the action given that his siblings’ descendants to which his interest passed are already Defendants, as is the IRS, which held a lien against him. (Dkt. No. 68; see Dkt. No. 67). Unable to obtain revestment of title, Defendant Jesus Alvarez, Jr. (hereinafter Defendant) has asked the Court to now resolve his challenge to the taking, as raised in his Motion to Dismiss and Answer subject to Plaintiff's Cross-Motion to Strike. Upon consideration of the Motions and the parties’ responsive authority and briefing,⁷ in light of the relevant law, the Court rejects Plaintiff's procedural objections to the Motion to Dismiss, but accepts that Plaintiff had statutory authority to effectuate the taking and that the paragraphs of Defendant's Answer raising noncompliance with the 2019 CAA must be stricken as legally insufficient.

II. Analysis

A. Plaintiff's Procedural Arguments

As did its sister court when considering the same arguments, the Court disposes of Plaintiff's procedural arguments in Defendant's favor. See 7:20cv425 at (Dkt. No. 70); 7:20cv329 at (Dkt. No. 40); (Dkt. No. 49, Exhs. 1, 2). Plaintiff first submits that Rule 71.1 "does not permit a landowner to move to condemn a condemnation action" by virtue of subsection (e)(3), which provides that "[a] defendant waives all objections and defenses not stated in its answer," and that "[n]o other pleading or motion asserting an additional objection or defense is allowed." (Dkt. No. 34 at ¶ 17); FED. R. CIV. P. 71.1(e)(3). As Defendant notes, Plaintiff overlooks that Rule 71.1(e)(3) precludes a motion asserting an additional objection or defense, which as reflected in the subheading and remaining text, consists of those objections or defenses not stated in the answer. (Dkt. No. 41 at ¶ 4); see FED. R. CIV. P. 71.1(e)(3) (addressing "Waiver of Other Objections and Defenses") (emphasis added). In contrast to United States v. 0.996 Acres of Land , 2009 WL 10691340 (S.D. Tex. Aug. 4, 2009), the only case cited by Plaintiff in support of its position, Defendant filed his Motion to Dismiss on the basis of objections and defenses raised in his simultaneously filed Answer, rather than a motion to dismiss that pre-dated the answer and thus did not comply with Rule 71.1(e) at the time of the motion's filing. See (Dkt. No. 41 at ¶ 5); 0.996 Acres of Land , 2009 WL 10691340, at *2 ; (Dkt. No. 41, Exhs. 1, 2). Although the district court in 0.996 Acres considered the motion to dismiss as "improperly filed," it went on to consider the defendant's objection contained within its prematurely filed motion "as part of its answer and as a challenge to the taking"—a resolution consistent with Defendant's, and the Court's, reading of Rule 71.1(e)(3). (Dkt. No. 41 at ¶ 5); 0.996 Acres of Land , 2009 WL 10691340, at *2. Subsection (e)(3) does not prevent the filing of Defendant's Motion to Dismiss raising objections and defenses otherwise raised in his Answer then on file.

Plaintiff next argues that the subsection of Rule 7.1.1 through which Defendant moves to dismiss, subsection (i)(1)(C), does not permit dismissal where the government has already taken title under the Declaration of Taking Act (DTA), 40 U.S.C. § 3114(b), as in the case at hand. (Dkt. No. 34 at ¶ 18). Rule 71.1(i)(1)(C) provides as follows:

(i) Dismissal of the Action or a Defendant.

(1) Dismissing the Action.

...

(C) By Court Order. At any time before compensation has been determined and paid, the court may, after a motion and hearing, dismiss the action as to a piece of property. But if the plaintiff has already taken title, a lesser interest, or possession as to any part of it, the court must award compensation for the title, lesser interest, or possession taken.

FED. R. CIV. P. 71.1(i)(1)(C). Defendant moves to dismiss pursuant to the first sentence of subsection (C), enabling dismissal before a determination of just compensation, but Plaintiff interprets the second sentence as limiting the availability of any such dismissal to that time period between the filing of the condemnation action and the taking of title. See (Dkt. No. 29 at p. 5; Dkt. No. 34 at ¶ 18). Plaintiff's reading of the rule creates a scenario in which it may unilaterally insulate itself from dismissal before any defendant has been served, and without regard to any objections or defenses otherwise allowed by Rule 71.1, even if those defenses or objections engage the government's very authority to act. This is not the law. As Defendant observes, the DTA does not, in and of itself, authorize a taking. See (Dkt. No. 41 at ¶ 7); United States v. 162.20 Acres of Land, More or Less, Situated in Clay Cty., State of Miss. , 639 F.2d 299, 303 (5th Cir. 1981) ("The [DTA] does not bestow independant [sic] authority to condemn lands for public use. On the contrary, it provides a proceeding ancillary or incidental to suits brought under other statutes.’ ") (quoting United States v. Dow , 357 U.S. 17, 22, 78 S.Ct. 1039, 2 L.Ed.2d 1109 (1958) ) (internal quotations omitted). The DTA...