274 F. 2d 856 - United States v. M Hall

The United States seeks a writ of mandamus requiring respondent, as Judge of the United States District Court for the Southern District of California, to vacate certain orders entered by him.

The orders were entered in 21 actions brought by the United States for the condemnation of lands required in 4 federal projects.1 By these orders the determination of the issue of just compensation in all 21 cases was referred to commissioners under Rule 71A(h), Federal Rules of Civil Procedure, 28 U.S.C.A.2 A motion of the United States to vacate this order was denied by respondent after hearing, and the present proceeding was then instituted.

The United States contends that the orders of reference demonstrate that these are not proper cases for reference to commissioners under the Rule and that the considerations which prompted the action of respondent judge are not proper considerations under the Rule; that, under these circumstances, respondent judge was without discretionary authority to refer the matters; that by his actions the United States wrongfully has been deprived of jury trials upon the issue of just compensation. In our view, such contentions if established, would justify issuance of the writ under LaBuy v. Howes Leather Co., 1957, 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290, and Beacon Theatres, Inc. v. Westover, 1959, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988. In seeking a review of an interlocutory order of the District Court by this extraordinary remedy, however, the burden upon the United States is a heavy one. There must be a showing of 'clear abuse of discretion or 'unurpation of judicial power." La-Buy v. Howes Leather Co., supra, 352 U.S. at page 257, 77 S.Ct. at page 314; Bankers Life & Casualty Co. v. Holland, 1953, 346 U.S. 379, 383, 74 S.Ct. 145, 98 L.Ed. 106. It must appear that 'its right to issuance of the writ is 'clear and indisputable." Bankers Life & Casualty Co. v. Holland, supra, 346 U.S. at page 384, 74 S.Ct, at page 148.

The position of the United States is that the purpose of the respondent judge was to relieve that calendar congestion facing the District Court. The United States asserts that by these orders respondent judge has referred all condemnation cases pending before him. It refers to the action of respondent judge as a 'blanket order' and contends that, if such procedural practice is permitted, jury trial may well be lost to all litigants upon the issue of value in condemnation cases.

A condition of calendar congestion standing alone is not justification for a reference to commissioners under the Rule. Cf. LaBuy v. Howes Leather Co., supra; United States v. Kirkpatrick, 3 Cir., 1951, 186 F.2d 393.

In these cases, however, the orders clearly demonstrate that the court had other considerations in mind. Compare United States v. Theimer, 10 Cir., 1952, 199 F.2d 501. The orders did, it is true, deal extensively with the problems of congestion facing the court. This is perhaps understandable since respondent is the Chief Judge of the District and such problems are peculiarly his concern. In addition to calendar congestion, however, the orders gave consideration to (1) the nature of the property, its varied terrain and uses; (2) the kind or type and nature of the rights or interests in the property for which just compensation was claimed; (3) the complexity of the issues involved; (4) the improbability, if not impossibility, of trying the issue of just compensation of the various properties before one jury; and (5) the probability that the appointment of commissioners would result in more uniformity of awards for like property than could be expected if each case were tried by a jury.3

The United States asserts that, while mention is made of these considerations, they are not shown to apply to any specific parcel or ownership, but are mentioned generally as applying to all lands included within each order. Further, it asserts that the orders wholly failed to show wherein the circumstances as to any of the considerations mentioned are extraordinary or unusual. The United States contends in this regard that a burden is upon the judge in each order of reference to show facts justifying his exercise of discretion under the Rule; that the orders are therefore insufficient to support an exercise of discretion.

This contention we reject. The United States concedes that as to each project various parcels taken are similar in character and use. In cases such as these, involving multiple takings for large governmental projects, it is our understanding that the Rule allows as proper a grouping of similar parcels for consideration, to the end that discrimination be avoided and uniformity in compensation be had. See authorities cited in footnote 3. The very use of the word 'quantity' in the Rule lends support to such construction.

Each order shows upon its face that all the listed considerations were in the mind of the judge as to the lands taken for each project and were felt by him to warrant an exercise of his discretionary authority. We shall not, for lack of specification or detail, presume to the contrary. The burden instead is upon the United States to make a clear showing to this Court that such factors were not involved in these cases. This burden the United States has failed to meet.

Writ denied.