United States v. Pressnell

• Decision Date: 05 March 1964
• Docket Number: No. 15449.,15449.
• Citation: 328 F.2d 580
• Parties: UNITED STATES of America Upon the Relation and for the Use of the TENNESSEE VALLEY AUTHORITY, Petitioner-Appellant, v. Council J. PRESSNELL et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

328 F.2d 580 (1964)

UNITED STATES of America Upon the Relation and for the Use of the TENNESSEE VALLEY AUTHORITY, Petitioner-Appellant, v. Council J. PRESSNELL et al., Respondents-Appellees.

No. 15449.

United States Court of Appeals Sixth Circuit.

March 5, 1964.

Thomas A. Pedersen, Asst. Gen. Counsel, Knoxville, Tenn., Charles J. McCarthy, Gen. Counsel, Tennessee Valley Authority, Knoxville, Tenn., James H. Eldridge, William W. Hurst, Knoxville, Tenn., on brief, for appellant.

J. Malcolm Shull, Nashville, Tenn., Fred M. Hartman, Greeneville, Tenn., J. Paul Johnson, Bristol, Tenn., on docket for appellees.

Before MILLER and CECIL, Circuit Judges, and McALLISTER, Senior Circuit Judge.

SHACKELFORD MILLER, Jr., Circuit Judge.

This condemnation suit under the Tennessee Valley Authority Act, Section 831 et seq., Title 16 United States Code, was filed in the District Court in the name of "United States of America upon the relation and for the use of the Tennessee Valley Authority." In an order of September 28, 1962, making final distribution of the funds in court, the District Judge ordered,

"The costs of this cause are adjudged against the petitioner for which execution may issue unless sooner paid."

Section 2412(a), Title 28 United States Code, provides:

"The United States shall be liable for fees and costs only when such liability is expressly provided for by Act of Congress."

In the absence of such a statutory provision, costs can not be assessed against the United States. United States v. Chemical Foundation, Inc., 272 U.S. 1, 20-21, 47 S.Ct. 1, United States v. Worley, Adm'x, 281 U.S. 339, 344, 50 S.Ct. 291, 74 L.Ed. 887.

The TVA Act does not provide for the taxing of costs against the United States in condemnation actions instituted thereunder. United States, ex rel. Tennessee Valley Authority v. Easement and Right of Way, etc., 214 F.Supp. 29, 31 M.D.Tenn.

The District Judge recognized that the costs could not be adjudged against the United States and it is clear from the proceedings that he intended by the order to assess the costs against the Tennessee Valley Authority and not against the United States. We so construe the order. The Tennessee Valley Authority has appealed from so much of the order as adjudges the costs against it.

In making the assessment, it was the view of the District Judge that the United States was not the petitioner, but merely a formal party to the action; that the TVA was the real party in interest, Chappell v. United States, 160 U.S. 499, 513, 16 S.Ct. 397, 40 L.Ed. 510; that it is the well settled rule that in condemnation proceedings the costs fall on the condemnor although it may be the prevailing party in the proceeding, Grand River Dam Authority v. Jarvis, 124 F.2d 914, 916, C.A. 10th; that the TVA is a United States corporation authorized to sue and be sued and that although the TVA is acting as a governmental agency in accomplishing the purposes of the Act, its functions are akin to those of private enterprises, Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688, rehearing denied, 297 U.S. 728, 56 S. Ct. 588, 80 L.Ed. 1011; that the fact that the TVA is a governmental agency does not extend to it the immunity of the United States from liability for costs. Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 388, 59 S.Ct. 516, 83 L.Ed. 784; that in conferring on the TVA the power to sue and be sued Congress did not simultaneously endow it with the sovereign's immunity from liability for costs, and that immunity in the case of a corporation acting as a governmental agency from liability for costs is not presumed. Reconstruction Finance Corporation v. J. G. Menihan Corp., 312 U.S. 81, 85, 61 S.Ct. 485, 85 L.Ed. 595.

The above authorities are applicable to cases where the governmental agency involved is the real party in interest; they are not applicable when the real party in interest is the United States.

The TVA Act provides that the TVA "Shall have power in the name of the United States of America to exercise the right of eminent domain" and in the acquisition of real estate by condemnation proceedings "the title to such real estate shall be taken in the name of the United States of America." Thereupon, the real estate is entrusted to the TVA "as the agent of the United States to accomplish the purposes of this chapter." Section 831c(h), Title 16 United States Code.

The Act also provides that the condemnation proceedings shall be instituted in the United States District Court for the district...