United States v. 23.94 Acres of Land, Floyd Co., Com. of Va., Civ. A. No. 68-C-61-R.

• Decision Date: 09 December 1970
• Docket Number: Civ. A. No. 68-C-61-R.
• Citation: 325 F. Supp. 330
• Parties: UNITED STATES of America, Plaintiff, v. 23.94 ACRES OF LAND, MORE OR LESS, situate IN FLOYD COUNTY, COMMONWEALTH OF VIRGINIA, and Foster E. Dalton, et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

325 F. Supp. 330

UNITED STATES of America, Plaintiff, v. 23.94 ACRES OF LAND, MORE OR LESS, situate IN FLOYD COUNTY, COMMONWEALTH OF VIRGINIA, and Foster E. Dalton, et al., Defendants.

Civ. A. No. 68-C-61-R.

United States District Court, W. D. Virginia, at Roanoke.

December 9, 1970.

Leigh B. Hanes, Jr., U. S. Atty., and Birg E. Sergent, Asst. U. S. Atty., Roanoke, Va., for plaintiff.

Martin F. Clark, Stuart, Va., and S. D. Roberts Moore, Roanoke, Va., for defendants.

OPINION AND FINAL ORDER

DALTON, Chief Judge.

By agreement of counsel, this cause is ordered reinstated on the docket.

The question before the Court is whether fees for witness attendance incurred by the landowner in the amount of $129.00 may be assessed as costs against the Government in a condemnation case. It was unanimously held prior to the amendment of Title 28 U.S.C. § 2412, the effective date of which was July 18, 1966, that the United States only paid costs when a particular statute so authorized. 28 U.S.C. § 2412 then read as follows:

(a) The United States shall be liable for fees and costs only when such liability is expressly provided for by an Act of Congress. (Subsections (b) and (c) are not applicable to the point involved in this case.)

As amended effective July 18, 1966, 28 U.S.C. § 2412 now reads:

"Except as otherwise specifically otherwise provided by statute a judgment for costs as enumerated in Section 1920 of this title but not including the fees and expenses of attorneys may be awarded to the prevailing party in any civil action brought by or against the United States by any agency or official of the United States acting in his official capacity in any court having jurisdiction of such action.

"A judgment for costs when taxed against the Government shall in the amount established by statute, court rule or other, be limited to reimbursing in whole or in part the prevailing party for the costs incurred by him in the litigation. Payment of the judgment for costs shall be as provided in Section 2414 and Section 2517 in this title for the payment of judgments against the United States."

Rule 71A(l) states that costs are not subject to Rule 54(d).

"Rule 54(d) provides that except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party, unless the Court otherwise directs. The costs against the United States, its officers and agency shall be imposed only to the extent permitted by law. Costs may be taxed by the Clerk on one day's notice. A motion served within five days thereafter, the action of the Clerk may be reviewed by the Court.

The defendant contends the amendment of 28 U.S.C. § 2412 applies to lands cases. His position is that this is a suit brought by the United States, that the award was greater than the amount of estimated compensation deposited into the registry of the court and that, therefore, he is the prevailing party and is entitled to costs.

The Government, on the other hand, took the position that costs may not be assessed against the United States for the following four reasons:

I.

The United States is normally "the prevailing party" in a federal condemnation proceeding, except in the rare instance where its right to take is successfully disputed by the landowner. See Rule 71A(l), Federal Rules of Civil Procedure. Note to subdivision (l)— original report Notes of Advisory Committee on Rules.

In the subject case, after service of the notice, order of possession and judgment on declaration of taking upon the defendant, a pleading was filed by the defendant's attorneys styled, "Objections and Grounds of Defense of Defendants". The Objections and Grounds of Defense of Defendants attacks the right of the United States to acquire the land by condemnation for several reasons, all of which were overruled by the Court, and stating therein that their property was worth in excess of $30,000.00. As can be seen from the Government's original offer, the demand of the defendant and the award of the commissioners, in this case as in all lands cases on the question of value, there is seldom any clearly "prevailing party". The Government is almost always the prevailing party on the right of taking, and for this reason the original report of the advisory commission indicates that the United States is the "prevailing party".

II.

Rule 71A(l), Federal Rules of Civil Procedure specifies that "costs are not subject to Rule 54(d)," which provides generally that costs shall be awarded to the prevailing party as does the 1966 Act. The specificity of Rule 71A(l) takes precedence over the generality expressed in Rule 54(d) of the 1966 Act.

III.

The legislative history of H.R. 14182, 89th Congress, Second Session, which upon enactment amended 28 U.S.C. § 2412 shows that it was not intended to apply to condemnation actions. The bill was proposed by the Department of Justice and was designated to correct the inequity regarding costs, in situations where the United States, when it prevailed, generally could recover costs against the private party, although some District Courts would deny recovery because of the inequity. Senate Report 1329, 89th Congress, Second Session 1966, pages 2, 4-5, House Report No. 1535, 89th Congress, Second Session 1966, pages 2 and 4. 112 Congressional Record, (daily edition) 13731-13732, June 27, 1966.

The condemnee has never been held liable to the United States for costs. Neither before or after the 1966 Act, to our knowledge, have costs been assessed for or against the United States in condemnation actions, at the District or Appellate Court level. The element of...