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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
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 theUnited

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:
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
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
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
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 defendantintervenor 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
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.