Filed: May 20, 1998

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-2136

(CA-94-3535-JFM)

United States of America,

Plaintiff - Appellee,

versus

Gloria J. Keller, et al,

Defendants - Appellants.

ORDER

The Court amends its opinion filed April 27, 1998, as follows:

On page 5, second full paragraph, line 2 -- the phrase "for

such a trial" is changed to read "for a jury trial."

On page 9, continuation of footnote 4, line 4 -- a space is

inserted between the words "it" and "cannot."

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GLORIA J. KELLER; GLADYS I.

POFFINBERGER; EDGAR POFFINBERGER;

CHARLOTTE KELLER,

Defendants-Appellants, No. 96-2136

and

41.98 ACRES OF LAND, MORE OR

LESS, SITUATED IN FREDERICK

COUNTY, MARYLAND; UNKNOWN

OWNERS,

Defendants.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

J. Frederick Motz, Chief District Judge.

(CA-94-3535-JFM)

Argued: October 27, 1997

Decided: April 27, 1998

Before LUTTIG, Circuit Judge, CAMPBELL, Senior Circuit Judge

of the United States Court of Appeals for the First Circuit,

sitting by designation, and TRAXLER, United States District Judge

for the District of South Carolina, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Luttig wrote the majority opinion, in which Senior Judge Campbell joined. Judge Traxler wrote a

dissenting opinion.
COUNSEL

ARGUED: R. Edwin Brown, BROWN & STURM, Rockville, Maryland, for Appellants. M. Alice Thurston, Environment and Natural

Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Laurie R. Hanig,

BROWN & STURM, Rockville, Maryland, for Appellants. Lois J.

Schiffer, Assistant Attorney General, Joy Ryan, Aimee Jiminez, John

A. Bryson, Environment and Natural Resources Division, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Appellee.

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

This appeal arises from a condemnation proceeding initiated by the

United States to obtain title to property owned by the defendantsappellants ("landowners"). Because the landowners believe the district court erred in denying their untimely demand for a jury trial on

the issue of just compensation, they appeal that court's determination

of the amount of compensation due them. For the reasons stated

herein, we affirm.

I.

On December 21, 1994, the United States filed a complaint in condemnation to obtain, assertedly for the purposes of administering, preserving, and developing the Appalachian National Scenic Trail,

approximately 42 acres of land owned by the landowners. See J.A. at

6. The government simultaneously served the landowners with notice,

and included with the notice a demand for a jury trial on the issue of

just compensation pursuant to FRCP 71A. Id. at 6, 8. The landowners

did not file an answer to the complaint.1 

_________________________________________________________________

1 Under FRCP 71A(e), a landowner's failure to answer a complaint in

condemnation constitutes a waiver of objections or defenses to the taking

of his property, but does not foreclose him from presenting evidence as

to the amount of compensation to be paid for the property.

 2
Several months of negotiations ensued between government counsel and the landowners. Orally and in writing, the government repeatedly urged the landowners to retain counsel. See J.A. at 33.

Throughout 1995, the landowners did not obtain counsel, but actively

negotiated on their own behalf.

In January of 1996, the government requested that the condemnation dispute be scheduled for trial in May, J.A. at 30-31, and the court

apparently complied. In early April, as the trial drew near, government counsel informed the landowners in writing:

[N]ow with the trial date approaching, I must change my

role from being a negotiator to that of advocate. . . .

As you know, I have suggested on several occasions that

you get an attorney to represent you. I still believe that is

good advice. However, I want you to understand that, if you

wait until shortly before trial to bring in an attorney, your

attorney will have to prepare quickly. I will not be able to

agree to delay the trial. Therefore, I suggest that, if you are

going to change your mind and retain an attorney, you

should do so within a week.

J.A. at 33. Shortly thereafter, the landowners retained counsel. On

April 18, 1996 -- nearly sixteen months after the initial complaint

was filed -- counsel for the landowners filed a demand for a jury trial

on the issue of just compensation. J.A. at 16-17. Four days later, the

government formally withdrew its demand for a jury trial, and concurrently filed a motion to "retain" the "non-jury trial setting." J.A. at

18-19.2

The trial was ultimately continued until July 22-23, 1996, to allow

the landowners' counsel time to prepare. On July 8, 1996, the district

court denied the landowners' demand for a jury trial. This denial was

explicitly based on that court's attempt to resolve certain discovery

_________________________________________________________________

2 It is not entirely clear from the record whether the case had in fact

been set for a nonjury trial; while the government had requested a bench

trial for two other cases the same day, it had not specifically made such

a request for this case. See J.A. at 30-31.

 3
disputes that had arisen (the landowners had failed to disclose in a

timely manner the nature of their expert appraisal reports or the identity of their trial witnesses, and the government had accordingly

sought to exclude this evidence) in a manner it believed fair to both

parties:

Frankly, in light of the other motions, I -- there have been

all kinds of motions filed regarding discovery matters

because of late production of discovery. So . . . I finally

decided that the just way to resolve this was to deny the

untimely request for a jury trial.

I am going to let things happen today and see where we

stand in terms of the discovery issues. I want the landowners

to be able to fully present their case as they see appropriate.

If it ultimately turns out that I cannot finally decide the

issues today because of unfair prejudice to the United States

because of not having been told things in advance, then one

of the virtues of a nonjury case is that we can postpone it.

Hopefully, after all is said and done today, the landowners . . . will be able to express his and their views, and I will

be able to come to a decision. If not, as I say, one of the benefits of a nonjury case is that we won't have to worry about

bringing eight to twelve people back. I will just postpone it

and see where it goes.

J.A. at 118. In accordance with its reasoning, the district court proceeded to conduct a bench trial on the issue of just compensation. The

landowners appealed.

II.

The law governing access to jury trials in federal condemnation

proceedings is relatively clear. First, it is settled law that there is no

constitutional right to a jury trial in such a proceeding. See, e.g.,

United States v. Reynolds, 397 U.S. 14, 18 (1970); Bauman v. Ross,

167 U.S. 548, 593 (1897). Rather, the availability of a jury trial in a

condemnation case brought by the United States is governed by FRCP

71A(h), which provides:

 4
If the [condemnation] action involves the exercise of the

power of eminent domain under the law of the United

States, any tribunal specially constituted by an Act of Congress governing the case for the trial of the issue of just

compensation shall be the tribunal for the determination of

that issue; but if there is no such specially constituted tribunal any party may have a trial by jury of the issue of just

compensation by filing a demand therefor within the time

allowed for answer or within such further time as the court

may fix, unless the court in its discretion orders that,

because of the character, location, or quantity of the property to be condemned, or for other reasons in the interest of

justice, the issue of compensation shall be determined by a

commission of three persons appointed by it.

It is clear that this rule does not provide an "absolute right" to a jury

trial. Atlantic Seaboard Corp. v. Van Sterkenburg, 318 F.2d 455, 459

(4th Cir. 1963). Not only is a party's access to such a trial restricted

to the issue of just compensation, see Reynolds, 397 U.S. at 19 (so

interpreting FRCP 71A), but a jury trial even on this issue cannot be

obtained if Congress has by statute provided a special tribunal for trial

of the issue, or if the court, in its discretion, orders that the issue be

determined by commission. See United States v. 21.54 Acres of Land,

491 F.2d 301, 304 (4th Cir. 1973); Atlantic Seaboard, 318 F.2d at

459; United States v. Cunningham, 246 F.2d 330, 332 (4th Cir. 1957).

Furthermore, to obtain even the limited access to a jury provided

by the rule, a party must make a timely demand for a jury trial.

Unless otherwise provided by the court, a defendant must make such

a demand within twenty days of service of notice of the government's

complaint. Compare FRCP 71A(h) (Jury demand must be filed

"within the time allowed for answer or within such further time as the

court may fix."), with FRCP 71A(e) (Defendant's answer is due

"within 20 days after the service of notice."). Fourth Circuit precedent

makes clear that where a party makes an untimely demand for a jury

trial, a district court may, in its discretion, deny that demand and

instead conduct a bench trial. Compare Atlantic Seaboard, 318 F.2d

at 457-58 (District court conducted bench trial of all issues, including

that of just compensation, after denying jury demand"on the ground

that it was untimely and the Court was not disposed to exercise its

 5
discretion to waive the procedural default."), with id. at 459 ("We find

no basis for the contention that the Court's denial of the tardy demand

for a jury was an abuse of its discretion.").

III.

The landowners do not challenge the validity of these general principles. Nor do they dispute either the fact that they did not demand

a jury trial until almost sixteen months after receiving notice of the

condemnation complaint, or the fact that the district court neither

extended the deadline for making such a demand nor exercised its discretion to excuse the landowners' procedural default. Nevertheless,

the landowners argue that the district court wrongfully denied their

demand for a jury trial.

In so arguing, and in attempting to distinguish the principles set

forth above, the landowners rely on the facts that (1) the landowners

were not represented by counsel at the time that they should have

demanded a jury trial, (2) the government did not tell the landowners

that they needed to demand such a trial, and (3) the government initially demanded a jury trial, and then subsequently withdrew this

demand. On the basis of these facts, the landowners urge us to find

either that they did not knowingly waive their right to a jury trial, or

that the government was estopped from withdrawing its demand for

a jury trial, and to hold, on either or both of these grounds, that the

district court erred in denying their untimely jury demand.

We do not believe, however, that the facts urged by the landowners

required the district court to grant the landowners' belated demand.

As for the fact that the landowners were unrepresented by counsel, we

note simply that this circumstance resulted from the landowners'

deliberate choice not to consult or retain counsel, that the government

repeatedly, and ultimately successfully, urged the landowners to

reconsider this initial decision, see J.A. at 33, and thus that any prejudice that may have resulted from the landowners' pro se status can

be ascribed to no one other than the landowners themselves. And as

for the fact that the government did not inform the landowners that

they needed to demand a jury trial, we note primarily that FRCP

71A(d)(2) specifies precisely what information the government must

provide when it serves notice of a condemnation action, that the gov-

 6
ernment here complied with the requirements of this rule, and that

FRCP 71A(d)(2) simply does not require the government to inform

landowners when or how they may demand a jury trial.

At first blush, the fact that the government initially demanded a

jury trial on the issue of just compensation, and then subsequently

withdrew this demand, appears slightly more problematic. As the

landowners note, FRCP 38(d) states that "[a] demand for trial by jury

made as herein provided may not be withdrawn without the consent

of the parties." (Emphasis added). Although the landowners halfheartedly argue that the italicized language in this rule refers to a jury

demand made pursuant to any of the Federal Rules of Civil Procedure, and thus that the rule operated to prevent the government from

withdrawing its jury demand without the landowners' consent, we

believe it quite clear that the italicized language refers to a jury

demand made pursuant to the procedures outlined earlier in FRCP 38.3

See FRCP 38(b) (outlining procedures by which "[a]ny party may

demand a trial by jury of any issue triable of right by a jury"). And

in the case sub judice, the government's jury demand was made not

pursuant to FRCP 38(b), but rather pursuant to FRCP 71A(h), which

does not similarly prohibit the withdrawal of a jury demand.

Nor can we, consistent with the language of either FRCP 71A or

FRCP 38, read the requirements of FRCP 38(d) to apply to a condemnation proceeding. First, FRCP 71A makes clear that where, as here,

that rule speaks to a procedural issue, it preempts other rules of procedure. See FRCP 71A(a) ("The Rules of Civil Procedure for the United

States District Courts govern the procedure for the condemnation of

real and personal property under the power of eminent domain, except

as otherwise provided in this rule."). Second, and more importantly,

_________________________________________________________________

3 We find unpersuasive the landowners' efforts to distinguish this language from that contained in the preceding sentence, which provides that

"[t]he failure of a party to serve and file a demand as required by this

rule constitutes a waiver by the party of trial by jury," FRCP 38(d)

(emphasis added), which indisputably limits the scope of the sentence in

which it is contained to jury demands made pursuant to FRCP 38. If anything, the close proximity between this sentence and the subsequent sentence at issue in this case confirms our understanding that the latter

sentence is also so limited.

 7
FRCP 38 -- which is, after all, entitled "Jury Trial of Right" --

applies by its terms only to cases where a party has a constitutional

or statutory right to a jury trial. Compare FRCP 38(a) ("The right of

trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved

to the parties inviolate."), with FRCP 38(b) ("Any party may demand

a trial by jury of any issue triable of right by a jury by [following

specified procedures]."). As noted earlier, however, it is settled law

that there is no constitutional right to a jury trial in a condemnation

case. And we do not believe that the limited, conditional access to a

jury contemplated by FRCP 71A(h) constitutes a statutory right to

trial by jury within the meaning of FRCP 38, especially where, as

here, the party seeking to assert such a "right" has not complied with

the requirements of FRCP 71A(h) by, inter alia, making a timely jury

demand. Such a party is not even entitled to a jury determination of

the single issue of just compensation under FRCP 71A(h); a fortiori,

such a party cannot be said to have a statutory right to a jury trial.

Accordingly, such a party's demand for a jury trial simply falls outside the purview of FRCP 38.

These considerations make clear that, because the landowners

failed to comply with the procedures outlined in FRCP 71A, they had

no right to a jury trial on the issue of just compensation. Accordingly,

their argument that they did not voluntarily waive this "right" must

fail. And even if the landowners had a constitutional or statutory right

to such a trial, a failure to make a timely jury demand would clearly

constitute waiver. See FRCP 38(d). Nor, given that the government

complied with the express requirements of FRCP 71A-- a rule

which, unlike FRCP 38, does not prohibit the unilateral withdrawal

of a jury demand -- can we find that the government was estopped

from withdrawing its jury demand. To do so, we would be required

either to engraft an implicit limitation upon the plain language of

FRCP 71A, or to import into the rule principles of estoppel from

FRCP 38 or other sources. This we are unwilling to do.4

_________________________________________________________________

4 While the preceding analysis makes clear that the district court was

not required to grant the landowners' belated demand for a jury trial, it

is also clear that the court could have chosen, in its discretion, either to

extend the deadline for making a jury demand, see FRCP 71A(h), or to

 8
CONCLUSION

For the foregoing reasons, the district court's determination of just

compensation is affirmed.

AFFIRMED

TRAXLER, District Judge, dissenting:

With respect, I dissent. In my view, the government could not withdraw its timely demand for a jury trial without the landowners' consent. I would remand either for a jury trial on the issue of just

compensation or, if the district judge determines that it is appropriate,

for appointment of a three-person commission to resolve the matter.

I.

As the majority rightly observes, because there is no constitutional

right to a jury trial in land condemnation proceedings, Rule 71A of

the Federal Rules of Civil Procedure dictates when a jury may be

employed in such cases. See United States v. Reynolds, 397 U.S. 14,

18-19 (1970). In fact, it is precisely Rule 71A(h) that restricted the

district court from conducting a bench trial under the circumstances.

It is useful to begin by closely examining the options that Rule 71A

provides a district judge for ascertaining just compensation. In federal

condemnation actions, the district judge alone "is to decide all issues,

legal and factual," save one -- the narrow factual question of just

compensation. Id. at 19; see Fed.R.Civ.P. 71A(h). On this issue, Rule

71A(h) contemplates that just compensation will be settled by one of

four methods, including a jury trial.1 See Fed.R.Civ.P. 71A(h); 13

_________________________________________________________________

waive the landowners' procedural default, see Atlantic Seaboard, 318

F.2d at 457. Given that the district court's decision to deny the jury

demand was made to accommodate the landowners' failure to comply

with their discovery obligations in a timely manner, it cannot seriously be

contended that the district court abused its discretion.

1 Rule 71A(h) generally addresses trial procedure in condemnation

actions. The relevant portion of the rule provides:

 9
James Wm. Moore et al., Moore's Federal Practice § 71A.11[1][a]

(3d ed. 1997). First, regardless of whether one or both parties wish for

a jury to fix just compensation, the issue will be settled by a special

tribunal if one has been established by Congress. See Fed.R.Civ.P.

71A(h). Second, if no such tribunal exists, then"any party may have

a trial by jury of the issue of just compensation by filing a demand

therefor within the time allowed for answer ...." Id. Provided a timely

demand has been made, "trial by jury [is] the usual and customary

procedure to be followed," United States v. Cunningham, 246 F.2d

330, 332 (4th Cir. 1957) (internal quotation marks omitted); see also

United States v. Hardage, 58 F.3d 569, 576 (10th Cir. 1995) ("Any

party to a condemnation proceeding is ordinarily entitled to a jury

trial to fix the value of the property taken where demand is made as

provided in Rule 71A(h)."). Third, notwithstanding the parties' timely

requests for a jury trial, the court is vested with the discretion to

appoint a three-person commission to determine just compensation if

the property is particularly vast or remote, or other circumstances prevail which would make a jury determination of the issue unwieldy.

See Fed.R.Civ.P. 71A(h); Atlantic Seaboard Corp. v. Van Sterkenburg, 318 F.2d 455, 459 (4th Cir. 1963) (noting that the district court,

"under certain circumstances, has the right to order the issue tried

before a commission of three persons, despite a timely demand for a

jury"). Finally, if neither party has demanded a jury trial and the court

does not appoint a commission, and assuming that Congress has not

_________________________________________________________________

If the action involves the exercise of the power of eminent

domain under the law of the United States, any tribunal specially

constituted by an Act of Congress governing the case for the trial

of the issue of just compensation shall be the tribunal for the

determination of that issue; but if there is no such specially constituted tribunal any party may have a trial by jury of the issue

of just compensation by filing a demand therefor within the time

allowed for answer or within such further time as the court may

fix, unless the court in its discretion orders that, because of the

character, location, or quantity of the property to be condemned,

or for other reasons in the interest of justice, the issue of compensation shall be determined by a commission of three persons

appointed by it.

Fed.R.Civ.P. 71A(h).

 10
provided a special tribunal, the court may serve as finder of fact on

the issue of just compensation. See Moore at al., supra,

§ 71A.11[1][e] (explaining that "[u]nder Rule 71A(h), if a jury trial

is not demanded by any party, and Congress has not authorized a tribunal, then the court must, by default, conduct a bench trial"). When

no special tribunal is involved, the plain terms of the rule permit the

district judge only two options if a timely jury demand has been

made: to allow a trial by jury or, if appropriate, to appoint a threeperson commission. Thus, if the landowner doubts that the estimated

compensation is an adequate exchange for his land,"he is, with two

exceptions, entitled to have this issue determined by a jury," the first

being when "the court determines that valuation should be resolved

by a commission of three persons, and the second[being] when Congress has expressly established a tribunal to determine the amount of

compensation due." United States v. 21.54 Acres of Land, 491 F.2d

301, 304 (4th Cir. 1973). As I see it, then, the district judge does not

have discretion to insist upon a bench trial on just compensation in

the face of a proper jury demand by one of the parties.2

Here, the district court determined the question of just compensation without the aid of a jury in large measure because the landowners

failed to make a seasonable jury demand under Rule 71A(h). Thus,

the question is this: whether the landowners, having failed to request

a jury trial within the time allotted by Rule 71A(h), were permitted

to rely upon the government's timely request for a jury trial, i.e.,

whether the district court was empowered to allow the government to

withdraw its timely jury demand without the landowners' consent. If

the government could not withdraw its demand in the absence of the

landowners' consent, the district court did not have the option of con-

_________________________________________________________________

2 The majority cites Atlantic Seaboard for the proposition that when a

party makes an untimely jury demand, the district court may conduct a

bench trial. See Atlantic Seaboard, 318 F.2d at 459. I have no quarrel

with this reading. Atlantic Seaboard, however, simply does not address

the dispositive issue because neither party in that case made a timely

demand for a jury determination of just compensation. In this case, however, the government made a timely request, and this difference is pivotal. Consequently, Atlantic Seaboard does not present the question that

is presented here -- whether a jury demand in a condemnation action

may be withdrawn over the objection of the opposing party.

 11
ducting a bench trial, limited in its discretion to choosing between a

jury trial and a three-person land commission.

II.

Rule 71A(a) instructs that the Federal Rules of Civil Procedure

apply to federal condemnation actions just as they do to any other

civil proceeding in federal court unless Rule 71A expressly provides

otherwise. Because Rule 71A does not tell us whether a timely jury

demand may be withdrawn unilaterally, as the government did here,

the landowners contend -- correctly, I believe-- that Rule 38(d)

applies and precludes the government from withdrawing its request

for a jury trial without their consent.

Rule 38(d) directs us as follows: "The failure of a party to serve

and file a demand as required by this rule constitutes a waiver by the

party of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties."

Fed.R.Civ.P. 38(d). In view of the straightforward language of Rule

71A(a), I cannot agree with the conclusion of the majority that

because Rule 71A(h) addresses jury demands in a condemnation case,

it preempts the withdrawal provisions of Rule 38(d)-- provisions that

are not specifically covered by Rule 71A(h). Such a conclusion, I

fear, suggests that the mere fact that Rule 71A generally addresses a

procedural topic covered more specifically elsewhere in the rules precludes courts from consulting the other rules for guidance on issues

that are not specifically addressed by Rule 71A. In my judgment, the

rules regarding the trials of land condemnation actions were intended

to mesh as much as possible with the rules regarding civil trials in

general. Consequently, I believe the better view is that the normal

civil rule regarding the request for, and waiver of, a jury trial supplements the jury trial provisions of Rule 71A(h).

Before Rule 71A became effective on August 1, 1951, land condemnation proceedings in federal court were subject to the vagaries

of a patchwork of inconsistent state and federal procedures. See

generally Fed.R.Civ.P. 71A advisory committee's notes, original

report. The Federal Rules of Civil Procedure did not apply to land

condemnation proceedings, governing only appeals from such

actions. See Fed.R.Civ.P. 81(a)(7) (abrogated by Supreme Court

 12
Order, Apr. 30, 1951); United States v. Theimer, 199 F.2d 501, 503

(10th Cir. 1952). Some federal statutes, for example, authorized the

exercise of the power of eminent domain and directed that courts

employ the procedure used by the state courts in similar circumstances, while other statutes merely authorized condemnation without

addressing the appropriate procedure to follow. See Fed.R.Civ.P. 71A

advisory committee's notes, original report; see also 12 Charles Alan

Wright et al., Federal Practice and Procedure § 3041 (2d ed. 1997).

Still other statutes provided comprehensive procedures for certain

types of condemnation actions. See Fed.R.Civ.P. 71A advisory committee's notes, original report; Wright et al., supra, § 3041.

The adoption of Rule 71A greatly simplified matters, "capp[ing] an

effort to establish a uniform set of procedures governing all federal

condemnation actions." Kirby Forest Indus., Inc. v. United States, 467

U.S. 1, 4 n.2 (1984). The text of the rule now makes clear that "[t]he

Rules of Civil Procedure for the United States District Courts govern

the procedure for the condemnation of real and personal property

under the power of eminent domain, except as otherwise provided" in

Rule 71A itself. Fed.R.Civ.P. 71A(a). The difficulty, of course, often

lies in determining whether Rule 71A has "otherwise provided" for

the determination of a particular issue, displacing another provision

of the Federal Rules that would ordinarily apply. In various instances,

Rule 71A clearly "otherwise provide[s]," prescribing unique procedures for condemnation proceedings. See, e.g., Fed.R.Civ.P.

71A(d)(3)(A) (instructing that a copy of the complaint not be served

upon the landowner); Fed.R.Civ.P. 71A(e) (requiring the landowner

to present all objections and defenses in the answer and prohibiting

any other motion or pleading that asserts a defense); Fed.R.Civ.P.

71A(f) (allowing the plaintiff to amend the complaint without leave

of court "as many times as desired" prior to trial, subject to certain

limitations). Elsewhere, Rule 71A incorporates the provisions of other

rules of procedure by specific reference. See, e.g., Fed.R.Civ.P.

71A(d)(3)(A) (requiring that personal service of the notice of condemnation be made upon the landowner in accordance with the provisions of Rule 4); Fed.R.Civ.P. 71A(f) (directing that the plaintiff

follow Rule 5(b) in serving the landowner with notice of the filing of

an amended complaint); Fed.R.Civ.P. 71A(h) (providing that "[i]f a

commission is appointed it shall have the powers of a master provided

 13
in ... Rule 53 and proceedings before it shall be governed by the provisions of ... Rule 53").

With respect to some subjects, however, Rule 71A is silent, in

which case the ordinarily applicable rule of procedure, if any, governs

by operation of subsection (a) of Rule 71A. See, e.g., Kirby Forest,

467 U.S. at 18 (holding that a landowner may move to amend an

award of compensation under Rule 60(b)); United States v. 416.81

Acres of Land, 525 F.2d 450, 455 (7th Cir. 1975) (applying the provisions of Rules 26(b)(4) and 37(a)(2) to a land condemnation proceeding); United States v. Evans, 365 F.2d 95, 98 (10th Cir. 1966) (finding

that Rule 54(b) controls finality of judgment that does not resolve all

claims in a condemnation action); Cunningham, 246 F.2d at 333

(explaining that a land commission must make findings of fact in

accordance with the provisions of Rule 52(a)).

In this instance, Rule 71A(h) is silent. It does not address whether

a party may simply withdraw its timely request for a jury trial without

obtaining consent from the opposing party, leaving the district court,

in essence, to proceed as if no jury demand had been made in the first

place. Receiving no express guidance from the text of subsection (h),

I believe we are obliged to apply the directive of subsection (a) of

Rule 71A and look to the other rules of procedure for our answer.

Rule 38, which governs the preservation of the right to a jury trial in

other civil actions, is the obvious place to begin. See Moore et al.,

supra, § 71A.11[1][c] (observing that "Rule 71A does not specifically

address the method of conducting a jury trial in a condemnation proceeding and, accordingly, the general provisions of the Federal Rules

of Civil Procedure" apply, referring to Rule 38 in particular). The

terms of Rule 38 provide that "[a] demand for trial by jury made as

herein provided may not be withdrawn without the consent of the parties." Fed.R.Civ.P. 38(d). Under the rubric of Rule 38(d), once a party

enters a timely demand for a jury trial, the other parties to the action

may rely on that demand, safe in the knowledge that it will not be

withdrawn without the consent of all the parties, see Bennett v.

Pippin, 74 F.3d 578, 586-87 (5th Cir.), cert. denied, 117 S. Ct. 68

(1996), and that no additional demand is required to secure the use of

a jury, see Fuller v. City of Oakland, 47 F.3d 1522, 1531 (9th Cir.

1995). Because Rule 71A(h) is mute on the question of withdrawal,

the provisions of Rule 38(d) should be imported, requiring the con-

 14
sent of all interested parties before a timely jury demand on the issue

of just compensation may be withdrawn. To find otherwise would be

to conclude that the drafters of Rule 71A(h), by their silence, altered

the rules for withdrawing a jury demand that apply to every other proceeding governed by the Federal Rules of Civil Procedure. I believe

the better view -- and one which is compelled by Rule 71A(a) -- is

that the text of Rule 71A(h), by its silence, allows for the application

of the "general framework of the Federal Rules where specific detail

is unnecessary." Fed.R.Civ.P. 71A(a) advisory committee's notes,

original report. Such an interpretation provides, as I believe the

drafters of Rule 71A intended and common sense dictates, a measure

of consistency in the application of Rule 71A with normal rules of

procedure that ordinarily control civil proceedings in federal courts.

A contrary interpretation would create an unwarranted anomaly.3

In light of the landowners' unwillingness to consent, the government should not have been permitted to withdraw unilaterally its

timely jury demand. Presented with a timely jury demand, the district

court had but two options under Rule 71A(h): allow a jury to determine just compensation or, if the court in its discretion decided that

circumstances required it, appoint a three-person commission to make

the determination. See 21.54 Acres of Land, 491 F.2d at 304. Having

not exercised its discretion to appoint a commission, the court was

constrained to permit "the usual and customary" method of determining just compensation -- trial by jury. See Cunningham, 246 F.2d at

332. The strict terms of the rule simply do not provide a bench trial

as an option for determining the amount of compensation a landowner

should receive in exchange for the condemned property when a timely

jury demand has been made. As a result, the district court erred in not

allowing the landowners a jury trial.4 

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3 The majority indicates that it is unwilling "to engraft an implicit limitation upon the plain language of FRCP 71A, or to import into the rule

principles of estoppel from FRCP 38 or other sources." Supra, at 8. Rule

71A(a), however, explicitly directs us to import principles from other

procedural rules if Rule 71A does not "otherwise provide." In my view,

Rule 71A does not address the question sub judice, requiring us to look

to the other rules of procedure.

4 As the majority notes, the district court was genuinely attempting to

provide a framework for trial in which the court could accommodate var-

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III.

I also must diverge from the majority in its conclusion that Rule

38 does not apply in any respect to federal condemnation proceedings

because the rule applies only to jury trials "of right" and that there is

no constitutional or statutory right to have a jury determine just compensation in a condemnation case. See Fed.R.Civ.P. 38(a) (preserving

the right to a jury trial "as declared by ... the Constitution or as given

by a statute of the United States"). Although the landowners certainly

have no right to a jury trial under the Seventh Amendment in condemnation cases, see Reynolds, 397 U.S. at 18, I cannot concur that the

absence of a constitutional right to a jury trial in these circumstances

bars the application of Rule 38(d). Under the plain terms of Rule

71A(h), a properly demanded jury trial on the issue of just compensation "is a matter of right," Hardage, 58 F.3d at 576, provided that

Congress has not created a special tribunal for the case and that the

district court does not appoint a land commission, see Fed.R.Civ.P.

71A(h). When these two exceptions do not apply, a timely demand

for a jury trial is "of right" by Rule 71A(h) and may not be ignored

in favor of a bench trial. The fact that this right-- albeit narrow --

exists by virtue of Rule 71A rather than a federal statute does not prevent the use of Rule 38(d) in this case, since Rule 71A(h) operates as

a statute:

[Rule 71A(h)] is not an Act of Congress in the ordinary

sense, but it has the force and effect of a statute. It could not

have become effective over Congressional objection. It and

the other rules proposed by the Supreme Court of the United

States and permitted, with or without change, by the Congress to become effective are clearly portions of the body of

federal law.

Washington Metro. Area Transit Auth. v. Two Parcels of Land in

Fairfax Co., Va., 569 F.2d 816, 819 (4th Cir. 1978); see also McCoy

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ious procedural problems that existed, most of which were caused by the

landowners themselves. Under the unique circumstances of this case,

however, I do not believe the solution chosen by the district court was

an option permitted by the rule.

 16
v. Massachusetts Inst. of Technology, 950 F.2d 13, 21 (1st Cir. 1991)

("The Federal Rules of Civil Procedure ... have the same force and

effect as federal statutory law."). Moreover, the Federal Rules of Civil

Procedure, including Rule 71A, are made effective by operation of the

Rules Enabling Act, see 28 U.S.C.A. § 2072 (West 1994), through

which Congress delegated its procedural rule-making power to the

Supreme Court, see Sibbach v. Wilson & Co., 312 U.S. 1, 9-10

(1941); Mistretta v. United States, 488 U.S. 361, 386-88 (1989). In

promulgating Rule 71A, therefore, the Supreme Court was exercising

a delegated legislative power. Because the entitlement to a jury trial

on just compensation -- as narrow as it is under Rule 71A(h) -- was

created through the exercise of congressional rule-making authority

and pursuant to an Act of Congress, and because the rule carries "the

force and effect" of a statute, Rule 38(d) applies and supplements

Rule 71A(h) where it is silent, providing a ready set of rules and eliminating guesswork when a party wishes to withdraw its jury demand.

In sum, Rule 71A(h) does not address the withdrawal of a timely

demand for a jury trial. Thus, we are left with the choice of either

treating the situation in the same manner that it would be treated in

any other civil case under Rule 38(d) or creating a completely different rule just for condemnation actions. Because I find the straightforward directive in Rule 71A(a) instructive and because the creation of

a unique rule would be confusing and unwarranted, I am convinced

that the withdrawal provisions of Rule 38(d) control the outcome in

this case.

For these reasons, I respectfully dissent.

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