United States v. Keller ( 1998 )


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  •                                                   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.
    
    
    
    
                                  O R D E R
    
    
        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 opin-
    ion, in which Senior Judge Campbell joined. Judge Traxler wrote a
    dissenting opinion.
    COUNSEL
    
    ARGUED: R. Edwin Brown, BROWN & STURM, Rockville, Mary-
    land, for Appellants. M. Alice Thurston, Environment and Natural
    Resources Division, UNITED STATES DEPARTMENT OF JUS-
    TICE, 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 defendants-
    appellants ("landowners"). Because the landowners believe the dis-
    trict 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 con-
    demnation to obtain, assertedly for the purposes of administering, pre-
    serving, 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 coun-
    sel and the landowners. Orally and in writing, the government repeat-
    edly 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 condemna-
    tion 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, govern-
    ment 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 con-
    currently 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 iden-
    tity 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 landown-
            ers . . . 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 ben-
            efits 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 pro-
    ceeded 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 Con-
            gress 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 tribu-
            nal 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 prop-
            erty 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 prin-
    ciples. 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 dis-
    cretion 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 ini-
    tially 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 preju-
    dice 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 half-
    heartedly argue that the italicized language in this rule refers to a jury
    demand made pursuant to any of the Federal Rules of Civil Proce-
    dure, 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 condem-
    nation proceeding. First, FRCP 71A makes clear that where, as here,
    that rule speaks to a procedural issue, it preempts other rules of proce-
    dure. 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 lan-
    guage 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 any-
    thing, the close proximity between this sentence and the subsequent sen-
    tence 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 Constitu-
    tion 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 out-
    side 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 with-
    draw its timely demand for a jury trial without the landowners' con-
    sent. 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 pre-
    vail which would make a jury determination of the issue unwieldy.
    See Fed.R.Civ.P. 71A(h); Atlantic Seaboard Corp. v. Van Sterken-
    burg, 
    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 con-
           stituted 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 com-
           pensation 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 tri-
    bunal, 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 three-
    person 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 Con-
    gress 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 compensa-
    tion 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, how-
    ever, the government made a timely request, and this difference is piv-
    otal. 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 pro-
    vided 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 pre-
    cludes 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 supple-
    ments the jury trial provisions of Rule 71A(h).
    
    Before Rule 71A became effective on August 1, 1951, land con-
    demnation 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 circum-
    stances, 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 com-
    mittee'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 proce-
    dures 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 con-
    demnation be made upon the landowner in accordance with the provi-
    sions 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 pro-
    visions 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 provi-
    sions of Rules 26(b)(4) and 37(a)(2) to a land condemnation proceed-
    ing); 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 pro-
    ceeding 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 par-
    ties." 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 pro-
    ceeding 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 govern-
    ment 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 deter-
    mine 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 determin-
    ing 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
    _________________________________________________________________
    
    3 The majority indicates that it is unwilling "to engraft an implicit limi-
    tation 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-
    
                        15
    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 com-
    pensation 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 condem-
    nation 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 compensa-
    tion "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 pre-
    vent 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 Con-
            gress 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
    _________________________________________________________________
    
    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 elim-
    inating 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 differ-
    ent rule just for condemnation actions. Because I find the straightfor-
    ward 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.
    
                        17