United States of America v. Certain Land Situated in the City of Detroit, Wayne County, Michigan

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0073P (6th Cir.)
File Name: 04a0073p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CERTAIN LAND SITUATED IN
THE CITY OF DETROIT,
WAYNE COUNTY, MICHIGAN;
0.74 ACRE OF LAND, MORE
OR LESS, SITUATED IN THE
CITY OF DETROIT, WAYNE
COUNTY MICHIGAN, et al.,
Defendants,
DETROIT INTERNATIONAL
BRIDGE CO.,
Proposed
Intervenor-Appellant,
COMMODITIES EXPORT
COMPANY; WALTER H.
LUBIENSKI,
Defendants-Appellees.
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No. 02-1591
2 United States v. Certain Land, et al. No. 02-1591
Appeal from the United States District Court for the
Eastern District of Michigan at Detroit.
Nos. 79-73934; 96-75494; 96-75495; 01-70391—Gerald E.
Rosen, District Judge.
Argued: October 29, 2003
Decided and Filed: March 9, 2004
Before: NORRIS, BATCHELDER, and COLE, Circuit
Judges.
_________________
COUNSEL
ARGUED: Craig L. John, DYKEMA GOSSETT,
Bloomfield Hills, Michigan, for Appellant. Stephanie Tai,
UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., Walter H. Lubienski, Dearborn, Michigan,
for Appellees. ON BRIEF: Mark H. Sutton, DYKEMA
GOSSETT, Bloomfield Hills, Michigan, for Appellant.
Stephanie Tai, Lisa E. Jones, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., Walter H.
Lubienski, Dearborn, Michigan, for Appellees.
NORRIS, J. delivered the opinion of the court, in which
BATCHELDER, J., joined. COLE, J. (pp. 8-13), delivered a
separate concurring opinion.
_________________
OPINION
_________________
ALAN E. NORRIS, Circuit Judge. Proposed intervenor
Detroit International Bridge Co. (“DIBCO”) appeals from the
denial of its motion to intervene of right. It sought to
intervene as a defendant in a condemnation action in which

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No. 02-1591 United States v. Certain Land, et al. 3
the condemned land was owned by a third party. The district
court denied DIBCO’s motion for failure to meet the
requirements of intervention of right under Fed. R. Civ. P.
24(a). We conclude that intervention was improper because
the district court lacked jurisdiction to hear DIBCO’s
underlying claim.
In 1979, the United States determined to expand a Detroit
customs facility and commenced a condemnation action
against DIBCO’s land. DIBCO challenged the
condemnation. In 1991, the United States and DIBCO agreed
to settle the condemnation proceeding. They agreed to a
memorandum of agreement (“MOA”) under which the United
States agreed to enlarge the scope of its expansion and
condemn third party property, including the totality of a lot
owned by Commodities Export Co. and Walter H. Lubienski
(“Commodities”). DIBCO agreed to compensate the United
States for the costs of condemnation. DIBCO claims that the
MOA gave it the right to be consulted regarding the costs of
condemnation, and that it only required DIBCO to pay
condemnation costs that were reasonable in light of federal
regulations.
In 1996, the United States brought a condemnation action
against Commodities. DIBCO’s counsel was in attendance at
conferences in that action at which the United States indicated
that it would not seek to condemn the entirety of
Commodities’ land. DIBCO regarded the failure to condemn
all of Commodities’ land as a breach of the MOA, but it did
not seek to intervene in this condemnation proceeding.
Instead, DIBCO sought to reopen the 1979 condemnation
action on the grounds that the MOA had been breached. The
1979 action went to trial, and on February 21, 2002, a jury
awarded DIBCO nearly $4.1 million in compensation for its
land.
In the meantime, the United States changed its position
regarding Commodities’ land and in 2001 commenced a new
condemnation proceeding against the entirety of
4 United States v. Certain Land, et al. No. 02-1591
Commodities’ property. DIBCO again failed to intervene.
DIBCO contends that it had no reason to intervene until
November of 2001, when it learned that the United States and
Commodities had entered a settlement under which the
United States would compensate Commodities in the amount
of $14.9 million, far in excess of the $366,000 at which its
land had been appraised, and after the United States indicated
that it may seek to enforce the MOA against DIBCO. On
December 28, 2001, DIBCO brought this motion to intervene
in this condemnation proceeding, seeking declaratory and
injunctive relief from enforcement of the MOA, and seeking
to challenge the grant of a motion to vacate an opinion that
allowed Commodities’ valuation testimony.
The district court denied DIBCO’s motion to intervene of
right for failure to meet the requirements of Fed. R. Civ. P.
24(a). DIBCO appeals that finding. We affirm the district
court’s denial because the district court lacked jurisdiction to
hear DIBCO’s underlying claim.
This court is under an “independent obligation to police its
own jurisdiction,” regardless of whether the parties
challenged jurisdiction. SEC v. Basic Energy & Affiliated
Res., Inc., 273 F.3d 657, 665 (6th Cir. 2001). We lack
appellate jurisdiction where the district court lacked subject
matter jurisdiction. We review the district court’s exercise of
subject matter jurisdiction de novo. Care Choices HMO v.
Engstrom, 330 F.3d 786, 788 (6th Cir. 2003).
The district court could not permit intervention under Rule
24(a) because it lacked subject matter jurisdiction over
DIBCO’s underlying claim. DIBCO sought declaratory and
injunctive relief against the United States, and the United
States had not waived its sovereign immunity to such a claim.
No statute waives the United States’ sovereign immunity
from contract claims for declaratory or injunctive relief in
district court. DIBCO argues that the district court had
subject matter jurisdiction to hear its claim under 28 U.S.C.
§ 1367. That statute provides in part as follows:

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No. 02-1591 United States v. Certain Land, et al. 5
Except as provided in subsections (b) and (c) or as
expressly provided otherwise by Federal statute, in any
civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction that
they form part of the same case or controversy under
Article III of the United States Constitution. Such
supplemental jurisdiction shall include claims that
involve the joinder or intervention of additional parties.
28 U.S.C. § 1367(a). This provision does not constitute a
waiver of sovereign immunity. “A waiver of sovereign
immunity must be unequivocally expressed in the statutory
text . . . and will not be implied.” Lane v. Pena, 518 U.S.
187, 192 (1996) (citations omitted). “Moreover, a waiver of
the Government’s sovereign immunity will be strictly
construed, in terms of scope, in favor of the sovereign.” Id.
(citing United States v. Williams, 514 U.S. 527, 531 (1995)).
The statute that DIBCO cites does not “unequivocally
express” an intent to waive sovereign immunity, and therefore
cannot constitute a grant of subject matter jurisdiction over
DIBCO’s claim.
The district court also lacked subject matter jurisdiction
over DIBCO’s underlying claim because it was presented as
grounds for a motion to intervene in a condemnation
proceeding. Because DIBCO seeks to intervene to assert a
claim against the United States, it seeks to intervene as a
defendant in the condemnation proceeding. Federal Rule of
Civil Procedure 71A(e) describes the types of defense
pleadings permitted in a condemnation proceeding:
Appearance or Answer. If a defendant has no objection
or defense to the taking of the defendant’s property, the
defendant may serve a notice of appearance designating
the property in which the defendant claims to be
interested. Thereafter, the defendant shall receive notice
of all proceedings affecting it. If a defendant has any
6 United States v. Certain Land, et al. No. 02-1591
objection or defense to the taking of the property, the
defendant shall serve an answer within 20 days after the
service of notice upon the defendant. The answer shall
identify the property in which the defendant claims to
have an interest, state the nature and extent of the interest
claimed, and state all the defendant’s objections and
defenses to the taking of the property. A defendant
waives all the defenses and objections not so presented,
but at the trial of the issue of just compensation, whether
or not the defendant has previously appeared or
answered, the defendant may present evidence as to the
amount of the compensation to be paid for the property,
and the defendant may share in the distribution of the
award. No other pleading or motion asserting any
additional defense or objection shall be allowed.
The Rule evidences that district courts only have jurisdiction
to hear defenses and objections from defendants in
condemnation cases. A district court lacks jurisdiction to hear
counterclaims against the United States in condemnation
cases. United States v. Banisadr Bldg. Joint Venture, 65 F.3d
374, 380 (4th Cir. 1995).
In addition, case law indicates that even a party that holds
a property interest in the taken land could not present a
contract claim in a condemnation proceeding against its own
property. Id. at 380. Therefore, DIBCO, which lacks any
property interest in Commodities’ land, is also barred from
asserting a contract claim in a condemnation proceeding, and
the district court had no subject matter jurisdiction to hear
DIBCO’s claim.
Even if DIBCO asserts that it seeks to intervene solely to
challenge the reasonableness of the settlement amount, a basis
for intervention which could be classified as a defense or
objection, it would still not fall within the class of pleadings
that a district court has jurisdiction to hear in a condemnation
proceeding. Rule 71A(e) requires that the defendant “identify
the property in which the defendant claims to have an

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No. 02-1591 United States v. Certain Land, et al. 7
interest[.]” Fed. R. Civ. P. 71A(e). The Rule thus evidences
that a district court only has jurisdiction to entertain defenses
and objections from parties who could assert property
interests in the condemned land. DIBCO holds no property
interest in Commodities’ land, and the district court lacked
subject matter jurisdiction to hear its purported defense or
objection.
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
8 United States v. Certain Land, et al. No. 02-1591
_________________
CONCURRENCE
_________________
R. GUY COLE, JR., Circuit Judge, concurring. I concur
only in the judgment of the majority’s opinion affirming the
district court’s denial of DIBCO’s motion to intervene as of
right pursuant to Fed. R. Civ. P. 24(a)(2). I would affirm the
denial of DIBCO’s motion to intervene on the ground that the
district court did not abuse its discretion in finding that
DIBCO’s motion pursuant to Fed. R. Civ. P. 24(a)(2) was
untimely.
The majority opinion fails to reach the Rule 24(a)(2) factors
and instead concludes that DIBCO’s motion to intervene as of
right was properly denied because the district court lacked
jurisdiction to hear DIBCO’s “underlying claim.” The
majority opinion, however, fails to take into account the fact
that DIBCO asserted two grounds for intervention, the first
concerning (and seeking a declaratory judgment concerning)
its duty to reimburse the Government for the settlement of the
Commodities condemnation pursuant to the MOA, and the
second concerning the reasonableness of the settlement
amount agreed to between the Government and the
Commodities defendants. In other words, because DIBCO
faces being the de facto remunerator for the properties, it
sought to intervene in order for the district court to adjudge
(1) whether or not it was liable as such a remunerator
pursuant to the MOA and (2) whether the $14.9 million
settlement agreed upon between the Government and the
defendants was reasonable.
In grounding its decision concerning a motion to intervene
as of right in questions of independent jurisdiction, the
majority turns a blind eye to the longstanding principle that
intervention as of right pursuant to Rule 24(a)(2) requires no
independent ground of jurisdiction to support the applicant’s
claim. 32A AM. JUR. 2d Federal Courts § 700 (2003); James

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No. 02-1591 United States v. Certain Land, et al. 9
Wm. Moore et al., 6 MOORE’S FEDERAL PRACTICE § 24.22
(3rd ed. 1998); Charles Alan Wright et al., FEDERAL
PRACTICE AND PROCEDURE § 1917 (2nd ed. 1986); see also
International Paper Co. v. Inhabitants of Town Jay, Me., 887
F.2d 338, 346 (1st Cir. 1989) (parties entitled to intervention
as of right fall within a federal court’s ancillary jurisdiction;
no independent basis of jurisdiction is necessary); Curtis v.
Sears, Roebuck & Co., 754 F.2d 781 (8th Cir. 1985) (same).
Only where intervention is permissive, pursuant to Rule
24(b), must independent jurisdictional grounds be shown.
MOORE’S FEDERAL PRACTICE § 24.22 (3rd ed. 1998). But
intervenors as of right – the category in which DIBCO claims
to belong – need not show independent jurisdictional grounds
because the court has supplemental jurisdiction over their
claims. Owen Equipment & Erection Co. v. Kroger, 437 U.S.
365, 376 n. 18 (1978). It is unclear why the majority forgoes
an analysis under Rule 24(a)(2). Moreover, our circuit has
never dismissed a case pursuant to Rule 24(a)(2) for lack of
an independent basis for jurisdiction – indeed, it seems that
no federal court of appeals has ever done so.
Jurisdiction to hear claims by intervenors of right depends
only upon the court’s jurisdiction to hear the primary,
underlying action and the terms of supplemental jurisdiction
set forth in 28 U.S.C. § 1367. DIBCO easily satisfies that
standard here: as the potential remunerator for the property at
issue, its claims are “so related to claims in the action within
such original jurisdiction that they form part of the same case
or controversy.” 28 U.S.C. § 1367. There is no dispute that
the district court had jurisdiction to hear the action between
the United States and the Commodities defendants.
Accordingly, the “inquiry into the substantiality of the
claimed interest” by DIBCO “is necessarily fact specific” and
tied only to the factors enumerated in Rule 24(a)(2), that is,
the extent of DIBCO’s interest in the subject of the action and
the extent to which not intervening may impair or impede
DIBCO’s ability to protect that interest. Id.
10 United States v. Certain Land, et al. No. 02-1591
Not only does the majority opinion erroneously conclude
that DIBCO was required to demonstrate an independent
basis for jurisdiction in order to intervene pursuant to Rule
24(a)(2), but it also grounds that conclusion in a theory of
sovereign immunity that runs contrary to legal authority. The
majority concludes that “[n]o statute waives the United
States’ sovereign immunity from contract claims for
declaratory or injunctive relief in district court.” Yet as a
general proposition, irrespective of a statutory provision
waiving sovereign immunity, the “government consents to be
sued . . . by those with whom it has privity of contract.” First
Hartford Corp. Pension Plan & Trust v. United States, 194
F.3d 1279, 1289 (Fed. Cir. 1999) (quoting Erickson Air
Crane Co. of Wash. v. U.S. Dep’t of the Air Force, 731 F.2d
810, 813 (Fed. Cir. 1984). DIBCO was in privity of contract
with the Government by virtue of the MOA and, as such, our
circuit recognizes that a district court would have jurisdiction
over such an action for equitable or injunctive relief. See
Veda, Inc. v. United States, 111 F.3d 37 (6th Cir. 1997). At
the very least, the privity-of-contract question follows, rather
than precedes, the Rule 24(a)(2) determination.
Even if the Government had not waived its sovereign
immunity, DIBCO would still be permitted to intervene
because DIBCO’s attempt to have its voice heard with respect
to the settlement amount is not a counterclaim at all. The
district court would have jurisdiction to entertain DIBCO’s
concerns relating to the reasonableness of the settlement
amount in the same way that it would have jurisdiction to
entertain objections by the Commodities defendants
concerning the reasonableness of the settlement amount.
The majority opinion also errs in its Rule 71(A) analysis.
The majority concludes that DIBCO has failed to assert an
“objection” to the amount of the settlement. However,
DIBCO’s objection to the settlement amount and its attempt
to have a voice in the settlement’s ultimate value is the
explicit basis for its motion to intervene. Furthermore, the
majority opinion’s conclusion that district courts lack

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No. 02-1591 United States v. Certain Land, et al. 11
jurisdiction to determine anything other than the condemnor
and condemnee’s interests in a condemnation action has no
support in the law of our circuit or in the plain language of
Rule 71(A)(e). To the contrary, it is recognized that Rule
71A(e)is not exhaustive of all parties who might become
defendants in a condemnation proceeding: “Since there is no
provision in Rule 71A for intervention, Rule 24's standard
governs.” 13 MOORE’S FEDERAL PRACTICE § 71A.04[2][b]
(3rd ed. 1998). Moreover, Rule 71(A)(e) is not a
jurisdictional bar to the district court’s consideration of the
intervention motion and the majority opinion fails to present
any binding authority or legal reasoning otherwise. Although
case law may support the proposition that only condemnees
may be compensated pursuant to a condemnation action, there
is no legal authority barring a party’s intervention as a
defendant where, as is the case here, a proposed defendant-
intervenor has a legitimate basis for objecting to the
settlement amount.
Indeed, the only authority the majority cites for its
proposition that only condemnors or condemnees may
intervene as defendants in condemnation proceedings is
United States v. Banisadr Bldg. Joint Venture, 65 F.3d 374,
380 (4th Cir. 1995). Not only is Banisadr not binding upon
this Court, but the Fourth Circuit itself conceded (in the very
passage referred to by the majority) that the case law on
which it relied was “sparse” and only “suggest[ed]” that a
contract claim could not be asserted in a motion to intervene
in a condemnation proceeding. Id. Indeed, the case law upon
which the Fourth Circuit itself relied was a lone district court
opinion from 1977. Finally, it is worthwhile to note that no
subsequent Fourth Circuit panel, district court, or other
federal court of appeals has ever cited Banisadr for the
proposition for which the majority now invokes it as decisive
legal support for its novel conclusions.
Here, the Government and the Commodities defendants
intend to settle for $14.9 million – an amount for which the
Government may seek to hold DIBCO liable. Even though
12 United States v. Certain Land, et al. No. 02-1591
DIBCO seeks no compensation, it could appropriately
intervene as a defendant to challenge the settlement amount
for which it might be responsible, so long as it satisfies the
requirements for intervention set forth in Rule 24(a)(2). A
case such as this one, however rare it may be, is paradigmatic
of an appropriate instance in which to permit a party to
intervene as a defendant in a condemnation proceeding where
that party is not a condemnee.
Having determined that independent jurisdiction is
immaterial to our consideration of DIBCO’s motion to
intervene as of right, I turn now to the relevant analysis
pursuant to Fed. R. Civ. P. 24(a)(2). In order to intervene as
of right pursuant to Rule 24(a)(2), DIBCO had to establish:
(1) the timeliness of its application to intervene; (2) a
substantial legal interest in the Commodities/Lubienski
condemnation cases; (3) impairment of its ability to protect
that interest in the absence of intervention; and (4) inadequate
representation of that interest by parties already before the
court. Michigan State AFL-CIO v. Miller, 103 F.3d 1240,
1245 (6th Cir. 1997) (citations omitted). The condemnation
actions at issue were filed in 1996; DIBCO did not move to
intervene until 2001. The district court found that DIBCO’s
motion to intervene was untimely and denied its motion to
intervene as of right on that basis. The district court’s
timeliness decision is reviewed for an abuse of discretion.
Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir. 1989).
The timeliness prong of Rule 24(a)(2) requires the movant
to file its motion to intervene promptly after discovery of its
interest in the litigation. United States v. Tennessee, 260 F.3d
587, 594 (6th Cir. 2001). DIBCO contends that its
responsibility to timely intervene arose on November 15,
2001, when it learned the amount of the Commodities
defendants’ recent settlement with the Government – that is,
when DIBCO learned the amount of its potential liability
pursuant to the MOA. The district court, however, properly
concluded that DIBCO should have moved to intervene
within a reasonable period after December 12, 1996, which is

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No. 02-1591 United States v. Certain Land, et al. 13
when DIBCO received notice that the first two condemnation
suits had been filed. In short, 1996 was when DIBCO learned
of the fact of its potential liability under the MOA. It should
have intervened then, and not waited until it learned the
amount of that potential liability in 2001. See Stotts v.
Memphis Fire Dep’t, 679 F.2d 579, 584 & n.3 (6th Cir. 1982)
(applicants for intervention “should have attempted to
intervene when they first became aware of the action, rather
than adopting a ‘wait-and-see’ approach.”).
Accordingly, the district court did not abuse its discretion
in finding DIBCO’s motion to intervene untimely. Although
I would find that DIBCO – as the potential remunerator for
the hefty $14.9 settlement reached between the Government
and the Commodities defendants – easily satisfies the
remaining requirements for intervention, the untimeliness of
its motion is fatal. I would therefore affirm the district court’s
denial of DIBCO’s motion to intervene on that basis alone.

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