Speed v Tallahassee FL Petitioners Reply Brief
Public Court Documents
March 12, 1958

8 pages
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Brief Collection, LDF Court Filings. United States v. Timmons Jr. Brief for Defendants-Appellants, 1981. c0dd83b8-c79a-ee11-be37-000d3a574715. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/72219eb7-f9fe-4497-9cd7-05de603bd8ee/united-states-v-timmons-jr-brief-for-defendants-appellants. Accessed July 01, 2025.
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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 80-7860 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EDGAR TIMMONS, JR.; the group known as PEOPLE ORGANIZED FOR EQUAL RIGHTS; and other unknown1 individuals, Defendants-Appellants. On Appeal From The United States District Court For The Southern District Of Georgia BRIEF FOR DEFENDANTS-APPELLANTS THOMAS ATKINS MARGRETT FORD 10th Floor 1790 Broadway New York, N. Y. 10019 MICHAEL A. FIGURES 1407 Davis Avenue Mobile, Ala. 36601 JACK GREENBERG BILL LANN LEE Suite 2030 10 Columbus Circle New York, N. Y. 10019 CLARENCE MARTIN 109 West Liberty Street P.O. Box 8906 Savannah, Ga. 31412 ORIN ALEXIS 1804 Paulsen Street Savannah, Ga. 31402 Attorneys for Defendants-Appellants UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 80-7860 UNITED STATES OF AMERICA, Plaintiff-Appellee, v . EDGAR•TIMMONS, JR.; the group known as PEOPLE ORGANIZED FOR EQUAL RIGHTS: and other unknown individuals*, Defendants-Appellants. * 1 2 CERTIFICATE OF INTERESTED PERSONS, REQUIRED BY LOCAL RULE 13.6.1 Undersigned counsel of record for defendants-appellants, Edgar Timmons, Jr., et al., certifies that the following listed parties have an interest in the outcome of this case. These representations are made in order that Judges of this Court may evaluate possible disqualification or recusal. 1. The United States of America, plaintiff; 2. Edgar Timmons, Jr., Hercules Anderson, Ted Clark and Christopher McIntosh, and the group known as People Organized for Equal Rights, defendants; and 3. Political class of persons or their predecessors KJ t I who formerly owned land now known as the Harris Neck National Wildlife Refuge in the State of Georgia, counterclaim defend ants. BILL LANN LEE Attorney of Record for Defendants-Appellants t 11 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 80-7860 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EDGAR TIMMONS, JR.; the group known as PEOPLE ORGANIZED FOR EQUAL RIGHTS; and other unknown individuals, Defendants-Appellants. On Appeal From The United States District Court For The Southern District Of Georgia STATEMENT REGARDING ORAL ARGUMENT Undersigned counsel for defendants-appellants Edgar Timmons, Jr., et al., respectfully state that oral argument would be helpful to the Court for the following reasons: 1. Issues of public importance are raised concerning the taking and use of private land by federal and state authorities. The land was owned by black farmers and orig inally acquired by their descendants as freed slaves after the Civil War. The land is now used as part of a national wildlife refuge. i n 2. The appeal concerns when relief may be sought from the enforcement of a judgment that is void or inequitable under Rule 60, Fed. R. Civ. Pro., and thus "presents a clash of two principles of judicial administration founded on sound public policy, namely, that litigation must finally and definitely terminate within a reasonable time and that justice must be done unto the parties." West Virginia Oil & Gas Co. v. George' E. Bruce Lumber Co. , 213 F.2d 702, 704 (5th Cir. 1954). 3. Questions are raised concerning whether statutes of limitations bar independent actions in equity seeking relief from judgment or claims for relief from acts occur ring within applicable statutory periods. 4. Finally, the appeal concerns whether summary judg ment is an appropriate judicial vehicle to resolve these questions. respectfu 11 y submit that significants questions of public importance, judicial administration and legal complex ity are raised and that oral argument should assist the Court in disposing of the appeal. TABLE OF CONTENTS AND CITATIONS Table of Contents Page Statement of Issues ................................... 1 Statement of the Case ................................ 2 Proceedings and Decision Below ................ 2 Statement of Facts ............................... 7 Summary of Argument ................................... 1 15 Argument ................................................. 16 I. The Lower Court Erred By Failing To Determine Whether Relief For A Void Judgment Was Required ...................... 17 II. The Lower Court Erred By Failing To Determine Whether Enforcement Of Judgment Would Be Equitable ............... V __ J 22 III. Applicable Statutes of Limitations Permit The Defenses And Counterclaims ........... 28 IV. It Was Error To Deny The Motion To Join Additional Parties And To Add Counter- c 1aims ......................................... 30 Conclusion .............................................. 32 Certificate of Service ............................... 3 3 Citations Cases Bankers Mortgage Co. v. United States, 423 F.2d 73 (5th C i r .), cert, denied, 399 U.S. 927(1970) 19,26 Bass v. Hoagland, 172 F.2d 205 (5th Ci r . ) , cert, denied, 338 U.S. 816 (1949) ...................... 20 V Carlson v. Green, ___ U.S.___ , 64 L.Ed. 2d 15 (1980) ...................................... 28 Croley v. Matson Navigators C o . , 434 F.2d 73 (5th Cir. 1970)..................................... 26 Ex parte Young, 209 U.S. 123 (1908) .............. 28 Foman v. Davis, 371 U.S. 178 (1963) .............. 31 Funding Systems Leasing Corp. v. Pugh, 530 F.2d 91 (5th Cir . 1976) ................................ 25 Hadden v. Rumsey Prods., Inc. 196 F.2d 92 (2d Cir. 1952) .....................L..................... 19 Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) .... 31 Hanes Supply Co. v. Valley Evaporating C o . , 261 F . 2 d 29 (5th Cir. 1958) .......................... 21 Hazel-Atlas Glass Co. v. Hartford-Empire Co., 3 22 U. S. 238 (1944) ............................... 25 Hicklin v. Edwards, 226 F.2d 410 (8th Cir.1955) 20,22 In re Casco Chemical Co., 335 F.2d 645 (5th Cir. 1964) ................................................. 24 Jones v. Watts, 142 F.2d 575 (5th Cir.), cert. denied, 32 3 U.S. 787 (1944) 19,22 Kennedy v. Silas Mason Co., 334 U.S. 249 (1948) 26 Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689-690 (1948) ......................... 28 McDonald v. Mabee , 243 U.S. 90 (1917) ........... 18 National Surety Co. v. State Bank, 120 F .2d 593 (8th Cir. 1903) .................................... 26 Pennoyer v. Neff, 95 U.S. 714 (1877 ) ............ 18 Rose v. Himely, 4 Cranch. 24 1 (1807) ............ 18 Page Thompson v. Whitman, 18 Wall. 457 (1873) ....... 18 Timmons v. United States, ___ F.2d ____ (5th Cir. November 19, 1979) ................................ 3 Traer v. Clews, 115 U.S. 528 (1885) .............. 29 United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973 ) ............................... 29 United States v, 1,200 Acres of Land in McIntosh County, Georgia, S.D. Ga. Brunswick Division, C i vi 1 No. 56 ...................................... 6,8 Walden v. Craig's Heirs, 14 Pet. 147 (1840) .... 20 i West Virginia Oil & Gas Co. v. George E. Bruce Lumber Co., 213 F.2d 702 (5th Cir. 1954) ..... iv,23,26 Whitehouse v. Rosenbluth Bros. , 32 F.R.D. 247 (E.D. Pr. 1962) .................................... • 22 Windsor v. McVeigh, 93 U.S. 274 (1876) .......... 18,20,22 Constitutional Provisions and Statutes Fifth Amendment ...................................... 4 16 U.S.C. § 688 dd ............... 3 28 U.S.C. § 1291 3 28 U.S.C. § 1343 (4) 4 28 U.S.C. § 1345 3 28 U.S.C. § 1346(2) 4 28 U.S.C. § 2201, 2202 4 28 U.S.C. § 2409 .................................. 4 40 U.S.C. § 258a 9 42 U.S.C. § 1981 ................................... 4 vi i Pages 42 U.S.C. § 1982 ..................................... 4 42 U.S.C. § 1983 ..................................... 4 Freedman's Bureau Act of 1866, 14 Stat. 175 .... 8,29 Code of Georgia Anno. § 3-704 ..................... 29 Other Authorities Rule 8(c) , Fed. R. Civ. P r o ......................... 24 Rule 13, Fed. R. Civ. "Pro. ...................... 30 Rule 15, Fed. R. Civ. Pro. ..................... 30,31 Rule 20, Fed. R. Civ. Pro. ....................... 30 Rule 56, Fed. R. Civ. Pro. ....................... 4 Rule 59, Fed. R. Civ. Pro. ..................... 19 Rule 60, Fed. R. Civ. Pro. ..................... 19,23 50C . F . R . 26.21 ...................... 3 Advisory Committee on Rules of Civil Pro., Report of Proposed Amendments to Rules of Civil Procefure for the District Courts of the United States, 5 F. R. D. 433 (1948) ................................ 23 7 Moore's Fed. Pract. (2d ed. 1979) .............. 18,19,21,23,24 4 Wright & Miller, Fed. Pract. & Pr o ............. 19 7 Wright & Mills, Fed. Pract. & Pro. (1968) .... 31 11 Wright & Miller, Fed. Pract. & Pro. (1969) — vi i i - 2 0,21,24 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 80-7860 UNITED STATES OF AMERICA, Plaintiff-Appellee, v . EDGAR TIMMONS, JR.; the group known as PEOPLE ORGANISED FOR EQUAL RIGHTS; and other unknown individuals, Defendants-Appellants. On Appeal From The United States District Court For The Southern District Of Georgia BRIEF FOR DEFENDANTS-APPELLANTS Statement of Issues 1. Whether summary judgment was properly granted in an ejectment action dismissing defenses and counterclaims seeking to remedy the illegal taking and use of land by the United States and state officials from 1942 to the present, as barred by statutes of limitations, where the record indicates genuine issues of material fact exist con cerning : (a) lack of personal jurisdiction in the original condemnation proceedings; (b) fraud, racial discrimination, and other consid erations which make enforcement of judgment inequitable; and (c) acts complained of occurring within an applic able statute of limitations period? 2. Whether claims may be maintained seeking relief from enforcement of a void judgment?I 3. Whether claims may be maintained seeking relief from enforcement of an inequitable judgment? 4. Whether all claims are barred by statutes of limita tions ? 5. Whether denial of a motion to join additional parties and to add counterclaims was error? Statement of the Case Proceedings and Decision Below The court below granted summary judgment that statutes of limitations barred former black owners of land included in the Harris Neck National Wildlife Refuge, McIntosh County, Georgia (hereinafter "Harris Neck") from seeking judicial remedy for asserted wrongful, discriminatory and fraudulent taking and use of their land, and, therefore, that the govern ment was entitled to ejectment and a permanent injunction that 2 defendant owners be enjoined from occupying the land in ques tion. This Court has jurisdiction to hear the appeal pursuant to 28 U.S.C. § 1291. On April 30, 1979, the United States filed a civil action in the Southern District of Georgia, Brunswick Division, to eject certain black persons from unlawful occupation of 1/ Harris Neck for three days. (R. 1) The complaint recited that the government became owner of Harris Neck by virtue of nine judgments entered by the Brunswick Division in 1948, and that the property was deeded to McIntosh County in 1948 2/ and reverted to the government in 1961. Defendants' answer, defense, counterclaim and class action, in pertinent part, denied that the government was in lawful possession of Harris Neck, and asserted that the land 1/ Jurisdiction was asserted under 28 U.S.C. § 1345 in order to enforce 16 U.S.C. § 688dd and 50 C.F.R. 26.21. 2/ The district court immediately issued an ex parte tem porary restraining order. (R. 2) On May 2d, an order to show cause why defendants should not be held in contempt for failure to obey the court's order was issued and several defendants who remained at Harris Neck were arrested. (R. 4, 12) Motions to vacate the court's orders were denied, and defendants found in contempt (R. 13, 14, 15 and 17 (transcript set forth in Vol. Ill of the Record on Appeal)). The find ing of contempt was affirmed on November 19, 1979, in a sep arate appeal, ___ F.2d ___ (5th Cir.), and is not an issue here. 3 w was originally conveyed to their families as newly emanci pated freedmen, after the Civil War, and wrongfully taken and used by the government and McIntosh County continuously from 1942 to the present. (R. 21) As defenses, the answer asserted, inter alia, that (1) the 1942 condemnation and 1948 final judgment denied former owners adequate notice and opportunity for judicial hearing, and just compensation in violation of the Fifth Amendment's due process clause; (2) black owners were treated discriminatorily and paid less for their land than white owners, in violation of due pro cess; (3) the original taking was in bad faith and fraudulent in violation of due process; and (4) civil rights guarantees embodied in 42 U.S.C. §§ 1981, 1982 and 1983 were violated. In addition, parallel counterclaims were asserted on behalf of a class of persons or their predecessors who formerly owned land now known as Harris Neck to enforce rights guaran teed by the Fifth Amendment and civil rights acts and obtain return of the land, or, in the alternative, compensation, 3/ and damages. The government filed a motion for summary judgment pur suant to Rule 56, Fed. R. Civ. Pro., on the ground that there 3 / Jurisdiction for the counterclaims was asserted under 28 U.S.C. §§ 1346(2), 1343(4), 2201, 2202 and 2409. 4 w United States deserved judgment as a matter of law. (R. 24) A motion to dismiss counterclaims on the grounds that they were insufficient as a matter of law, barred by time and 4/ barred by former judgment was also filed. (R. 25) An enlargement of time was granted b a s e d on the need to develop recently discovered information from federal and state officials concerning the taking and use of the land.i. (R. 27) In addition, depositions of elderly witnesses were taken. (R. 29, 30) Defendant owners then filed a motion in opposition to plaintiff's motions to dismiss and for summary judgment on the grounds that a material issue of fact as to title of Harris Neck was demonstrated, sufficient facts giv ing rise to several cause of action against the government which are not time barred were alleged, and facts were alleged were no genuine issues as to any material fact and that the 4/ Attached to the motions were a register of landowners' names, acreage, price, etc., apparently prepared at the time of the original taking in 1942 (Exhibit A), and a map of Harris Neck Army Air Field, dated 1945 (Exhibit B). Id. No other exhibits or affidavits were offered in support of the motions. Neither motion asserted that the defenses or counter claims were barred by the affirmative defense of laches. After defendant owners noted that the defense had been waived (R. 31, Memorandum in Opposition at VI), the government filed a supplemental motion for summary judgment on the basis of laches. (R. 35) 5 statute of limitation and discriminatory acts giving rise to compensable injuries. (R. 31) Supporting depositions and voluminous recently-discovered documentary evidence were 1/attached to the memorandum in support. (Id_.) There was no hearing. On June 23, 1980, the district court granted the govern ment summary judgmdht because the former owners' claims were barred by statutes of limitations, but permitted defendants to bring any other issues to the Court's attention. (R. 40) Thereafter, defendants filed a motion for leave to file amended answer, defense, counterclaim and class action 'w' by adding counterclaims that the iMcIntosh County and certain county officials entered into a conspiracy to defraud the United States and black owners by preventing the return of the land to original black owners from 1947 until 1961, and that the taking of the Harris Neck land and present use by the Assistant Secretary of the Interior for Fish, Wildlife raising material issues of fact as to the application of a 5/ On the same day, defendants also filed a motion for relief from judgment, consolidation, and evidentiary hearing in the original condemnation act, United States v. 1,200 Acres of Land in McIntosh County, Georgia, S.D. Ga., Brunswick Division, Civil No. 56, pursuant to Rule 60 (b) (4) and (6) , Fed. R. Civ. Pro. To date, an opposition was filed, but no action has been taken on the motion. 6 and Parks was in violation of the original statutory public purpose of farming by former slaves and their heirs. (R. 47) A conforming motion to join as additional parties McIntosh County, the estate of a former county official, and the Assistant Secretary of the Interior was also filed. (R. 49) These motions were denied by the court. (R. 53) On August 25th, the court below essentially reinstituted its prior summary judgment order, and ruled the United States entitled « to ejectment and an injunction that former black owners be permanently enjoined from occupying Harris Neck and be per mitted only those privileges extended to the general public. (R. 54) Timely notice of appeal was filed. (R. 55) 6/ Statement of Facts The lands now known as Harris Neck were acquired by defendants' predecessors in interest from General Sherman and Tillson through the Freedmen's Bureau soon after the Civil 6/ For purposes of summary judgment, the lower court con strued undisputed facts in favor of defendants. (R. 54, at 2-3) These facts are principally contained in (a) defend ants' answer, defense, counterclaim and class action (R. 21); (b) defendants' motion in opposition to plaintiff's motions to dismiss and for summary judgment (R. 31); (c) depositions and documentary evidence marshalled in support of the oppo sition (id.); and (d) defendants' motion for leave to file amended answer, defense, counterclaim and class action (R. 47) 7 War. (R. 54, at 2) In January 1855, General Sherman issued Field Order No. 15, setting aside certain land in Georgia and South Carolina, including Harris Neck, as moderate size plots for newly emancipated slaves to use as farms. (R. 47, at 3) Section 9 of the Freeamen's Bureau Act, enacted in July 1865, directed that each of the former slaves having a valid claim under Sherman's order be given a warrant per mitting him or her to lease, and ultimately purchase at nominal cost, twenty acres of land. 14 Stat. 175. (Id.) Both Order No. 15 and Section 9 had the purpose and effect of devoting the covered land to what Congress considered a vital public purpose: farming by former slaves and their heirs in order to assure the economic and political freedom of blacks. For the next 76 years, most of the land at Harris Neck remained in black hands, and was utilized for the purposes intended by Congress. (JEd. ) The land was used for subsistence farming by defendants or their predecessors, which consisted of a black community of about 30 families. The families also relied on fishing of the adjacent coastal waters. (See,R. 31, Memorandum at 2.) In July 1942, the United States, upon short notice, con demned the land in order to build an emergency wartime airfield in United States v. 1,200 Acres of Land, filed in the U. S. District Court for the S.D. of Georgia, Brunswick 8 sJ Division, Nq . 56. (R. 54, at 2) Upon less than 48 hours' notice, the land, consisting of nearly 1,200 acres and ulti mately 2,686.9 acres, was condemned through declarations of taking, pursuant to 40 U.S.C. § 258a, and defendant black owners and their predecessors ordered to leave their land under threat and duress of physical removal. (R. 21, at S 17) Declarations of taking were not filed until January 1943. Written judgments of final condemnation, moreover, were not filed until 1948. (R. 1, R. 21, at f 39) The declaration of taking and condemnation proceedings were appar ently uncontested. Allegations of inadequate notice and opportunity for hearing to the owners are supported by depo sitions of four surviving owners that no written notice or opportunity to oppose the taking was ever given them, and that, indeed, they were never personally served with any notice of proceedings or other court papers. Instead, black owners relied on the oral promises by an agent of the government that the land would be returned to them after the yconclusion of the war. (R. 21, at 5[ 19) It is alleged that Harris Neck was condemned despite 7/ R. 31, Memorandum, Exhibit A, deposition of Jesse Grant at 6-11, 13-15, 17-18, 22-23; Exhibit B, deposition of James Campbell at 4-5, 7-10, deposition of Evelyn Greer at 5-7; Exhibit C, deposition of Christopher McIntosh at 6-8, 9-12. 9 written reports by the Army Corps of Engineers questioning the need or suitability of the land for aeronautical pur poses. (R. 21, at ^ 18) It is also alleged that black owners received amounts in compensation well below the prevailing fair market value (and in some instances, no money) (R. 21, at m 34-35), and that black owners were discriminatorily compensated less than similarly situated white owners. (R. 21, at 5H 41-44) Prior to final condemnation judgments in 1948, the government's need for Harris Neck ended. The lower court found: After World War II, the airstrip was closed. In 1948 the property was declared surplus under the authority of the War Sur plus Property Act of 1944, 58 Stat. 765. The property was conveyed to McIntosh County for use as a municipal airport in 1948. It is doubtful whether the County ever intended to use the property as an airport. It appears likely that an attempt was made to mislead the United States into conveying the property to McIntosh County instead of to the other pri ority holders [i.e ., the former owners]. (R. 54, at 2-3) The Surplus Property Act of 1944, Pub. L. 44-457 was a congressional measure to aid the reconversion from a war to a peace economy through the distribution of government surplus property. Section 23 of the Act provided that surplus real property be classified for agricultural or other use and that certain real property not disposed of to 10 w federal agencies or states was to be offered in substan tially identical tracts for purchase to the person from whom the property was acquired. Section 23 (b), (c) and (d) (1) 8/ (A). In August 1946, the War Assets Administration reported that: Harris Neck "is recommended for classification as Pasture Land, as this was and is its highest and best use ... and after declaration as surplus there was no interest shown in the territory surrounding it for future use as an airport." The Civil Aeronautics Administration and the Surplus Airport Disposal Committee also had recommended that 9/ the property be classified as non-airport property. Local McIntosh officials had earlier stated their interest in acquiring all of Harris Neck "for resale to individual prop erty owners who originally owned the land and were desirous of reacquiring same [because t]he acquisition by the county of the airport facilities for use as a public airport was considered impractical on account of its inaccessibility to 10/ population areas in the county due to its remote location. 8/ Section 23 is set forth at R. 27, Exhibit A, and R. 31, Memorandum, Exhibit D. 9/ See R. 27, Exhibit A, Memorandum of War Assets Admin istration, entitled "Real Property Classification," dated August 20, 1946, also set forth at R. 31, Memorandum, Exhibit E. See also, R. 31, Exhibit F, letter to Manley from Borsari and Mott, dated July 25, 1946. 10/ See R. 31, Exhibit F, Memorandum of Asst. Adm. for Air ports entitled "Harris Neck Army Airfield, Georgia," undated. 11 There was also an effort by county officials to acquire Harris W 1 1 / Neck for purported use by a Methodist Church. McIntosh County was able to obtain reclassification of 900 acres of Harris Neck for use as airport property to be devoted to use 12/ as a municipal airport. Eventually, the Civil Aeronautics Administration recommended in April 1948 that the entire area be transferred to McIntosh County for use as a local airport, and non-aviation revenue producing purposes for maintenance l and development of the airport on the basis of representa- 13/ tions by county officials. The land was transferred by 14/ quitclaim deed in June 1948. Meanwhile, black former owners sought the assistance of county officials and leading white citizens, including County Attorney Varner, County Commissioner Davis and Sheriff 11/ See R. 27, Exhibit B (correspondence), and R. 31, Memo randum, Exhibit I, letter to War Assets Administration from McIntosh County Commissioners, dated December 10, 1946. 12/ See R. 27, Exhibit A, "Certificate," signed by Roberts, dated May 12, 1947; letter to Deputy Administrator Robinson, War Assets Administration, from Borsari, dated February 17, 1947. 13/ R. 31, Memorandum, Exhibit C, Memorandum entitled "Harris Neck Airfield, Euloria, McIntosh County, Georgia," etc., from Spencer dated April 21, 1948. 14/ See, R. 1, J 3. 12 Poppell to petition for the return of their land. These officials assured them that efforts would be taken in their behalf, and some of the black farmers paid for representa- 16/ tion. However, no efforts were made in their behalf, and, indeed, the county attorney argued to federal officials against classification of any portion of Harris Neck as sur plus agricultural property to be returned to their original 17/-- Lblack owners. 15/ 15/ r . 31, Memorandum, Exhibit A , deposition of Jesse Grant at 15-16, 18-25; Exhibit B, deposition of James Campbell at 10-12; Exhibit C, deposition of Christopher McIntosh at 12-15. 16/ Id. 17/ "We believe that the classification of this property as farm land shows that those responsible for this classification gave no thought and time in making this determination and conducted no sur vey to show such a result. For your information, for many years prior to the acquisition of this land by the War Department, it was owned, occupied and used exclusively by negroes, except for three or four white families. The land was used by those people for residential purposes and for patching and gardening. It was not used as farm land and no actual bona-fide farming was ever conducted on the land for at least thirty years prior to the time it was acquired by the Government. The owners and occupants of this land made their liv ing by trapping, fishing, hunting, crabbing and oystering and these same people now living nearby still pursue this method of earning a living. None of them want the land back for farming pur poses as they never used it for such, only subsis- v— ■> fence gardening. It is not farm land0" 13 For the next 13 years, McIntosh County failed to live up to the purposes of the transfer, and widespread looting of Harris Neck facilities was permitted, condoned and partici pated in by county officials. Federal officials knew, but tolerated this course of behavior until 1961. McIntosh County did not make good use of the airport facilities. In 1961, amid accu sation of corruption against certain officials of McIntosh County, a notice of reversion to the United States was published in 1961. 18/ R. 54, at 3. After reversion to the United States, Harris Neck was converted into a national wildlife refuge in 1962. In 1979, defendant black former owners occupied Harris Neck and the United States brought this ejectment action. In 17/ Continued R. 27, Exhibit B, letter to Abbott of the War Assets Admin istration from Varner, dated August 4, 1947, p. 5, also included as R. 31, Memorandum, Exhibit K. 18/ Documentary evidence from federal officials contained in R. 31, Memorandum, Exhibit N, indicate that: The airport was never operated as a*municipal airport, although there was spo radic use of the runways. The .runways were often overrun with straying livestock. Local air traffic was principally served by another nearby airfield. Airport facilities were never - maintained. Buildings, fixtures and equipment were carted away. The non-airport portion of Harris Neck was never used to gen erate revenue for the airport's maintenance. Officials such as Sheriff Poppell and Commissioner Davis obtained sweetheart lease arrangements. Federal officials repeatedly found the county in default of its responsibilities and recommended can celling the transfer to McIntosh County from 1949 forward. Nothing shows any benefit to black former owners. 14 the course of defending the action, defendants discovered for the first time the history of the taking and use of Harris Neck by federal and county officials. SUMMARY OF ARGUMENT Summary judgment was inappropriate where an undisputed factual record supports colorable claims of voidness of the condemnation judgments for lack of personal jurisdiction, inequity resulting from enforcement of the taking and use of Harris Neck by federal and state officials and acts within applicable statutes of limitations. 1. The district court erred by ignoring genuine issues of material fact concerning whether personal jurisdiction was absent in the condemnation of Harris Neck, and that such void judgments can be attacked at any time. Neither statutes of limitations nor laches bar such claims. 2. The district court erred by ignoring genuine issues of material fact concerning whether equitable considerations would make enforcement of the taking and use by federal offi cials unjust. The court declined to follow Rule 60, Fed. R. Civ. Pro., and settled legal principles which permit proceed ings in the nature of independent actions in equity for relief against judgment in such circumstances. Statutes of limita tions do not bar such claims, and laches cannot be raised as a defense. 3. In any event, applicable statutes of limitations permit judicial remedy of independent statutory and constitu tional claims. 4. Joinder of additional parties and leave to add counterclaims was erroneously denied. ARGUMENT Summary judgment was inappropriate. The record contains factual allegations and supporting documentation of lack of personal jurisdiction sufficient to raise genuine issues of material fact as to whether the original condemnation judg ments were void. Defendant black owners asserted and pre sented evidence that there was inadequate notice and opportunity for hearing, see, supra at p. 7. Infra at part I. The record also reveals factual allegations and supporting documentation of fraud, discrimination, and other equitable considerations sufficient to raise genuine issues of material fact as to whether enforcement of the condemnation judgments would be inequitable. Defendant black owners asserted and presented evidence that the original taking was infected with (a) fraud ulent representations that the land would be returned after the war, (b) questions about the suitability of the land for aeronautical purposes, (c) unjust or no compensation, (d) ra cially discriminatory compensation, (e) lapse of the need for 16 the taking prior to final condemnation judgments, (f) fraud and deception by county officials to transfer land to McIntosh County instead of black owners, (g) corrupt abuse of the land by county officials and toleration by federal officials for 1948 through 1961, and (h) use of the land, originally dedicated to the public purpose of farming by freedmen and their descendants, for an unrelated purpose, see supra at p. 14, n. 18. Infra at part II. The districti. court, however, erroneously ignored these issues of material fact going to the underlying enforceability of the original condemnation judgments, and proceeded on the assumption that the original judgments must be enforced. The court's conclusion that applicable statutes of limitations bar all independent statutory and constitutional claims was erroneous. Infra at part III. The denial of the motion to join additional parties and leave to amend complaint was also erroneous. Infra at part IV. I. The Lower Court Erred By Failing To Determine Whether Relief For A Void _______ Judgment Was Required_______ The district court simply ignored well-pleaded defenses and counterclaims to ejectment, and supporting evidence that the original condemnation judgments were void for failure to 17 accord black former owners notice and opportunity to be heard. Consequently, the court altogether failed to determine whether relief from a void judgment was required. This was error. It is axiomatic that a void judgment is subject to collateral attack in any proceeding in any court at any time where the validity of the judgment comes in issue and is appropriately challenged. See, 7 Moore's Fed. Pract. n 60.25, 60.41 (2d”’ed. 1979). Thus, the jurisdiction of another court which originally condemned or otherwise adjudged ownership of property in dispute has always been subject to attack in a proper subsequent proceeding. See, e . g . , Rose v. Himelv, 4 Cranch. 241 (1807); Thompson v. Whitman, 18 Wall. vw / 457 (1873). Here, void condemnation judgments are a proper defense in an ejectment action. In particular, allegations going to failure of the original court to provide adequate notice and opportunity to be heard in violation of due pro cess are matters of personal jurisdiction that go to the validity of a prior judgment and are the proper subject of collateral attack. See, e.g., McDonald v. Mabee, 243 U.S. 90 (1917); Pennoyer v. Neff, 95 U.S. 714 (1877); Windsor v. McVeigh, 93 U.S. 274 (1876). These principles of collateral attack are unchanged by the Federal Rules of Civil Procedure, which set forth various alternative and overlapping means to 18 E. q. ,challenge void judgments in the rendering court. 7 Moore's Fed. Pract. 60.25 [3], 60.41 [2], supra; see, 4 Wright & Miller, Fed. Pract. & Pro. 1074 (1969). In any event, where, as here, the collateral attack is marshalled in the same district court that rendered the original condem nation judgment and as a defense in an ejectment action, the challenge may be treated as a Rule 60(4) motion in relief of void judgment or an independent action in equity for relief from judgment. See, Bankers Mortgage Co. v. United States, 423 F.2d 73, 77, n. 7 (5th Cir.), cert. denied, 399 U.S. 927 (1970); Hadden v. Rumsey Prods., Inc., 196 F.2d 92, 95 (2d Cir. 1952); Jones v. Watts, 142 F.2d 575, 576-577 (5th Cir.), 20/ cert. denied, 323 U.S. 787 (1944). The applicable general rule, and controlling law of the circuit, is that "a judgment, whether in a civil or crimi nal case, reached without due process of law is without juris diction and void, and attackable collaterally by habeas corpus 19/ 19/ E.g., 59(a), motion for new trial within 10 days; 59(e), motion to alter or amend judgment within 10 days, appeal from original judgment; 60(b)(4), motion for relief from void judg ment at any time; 60(b), independent action in equity to enjoin enforcement of the judgment at any time. 2 0 / In fact, a protective Rule 60(4) motion was filed in the original condemnation proceeding. See supra at p. 6, n. 5. A challenge to a void condemnation judgment has a basis in the independent action in equity. See infra at part II. 19 if for crime, or by resistance to its enforcement if a civil judgment for money, because the United States is forbidden by the fundamental law to take either life, liberty or property without due process of law, and its courts are included in this prohibition." Bass v. Hoagland, 172 F.2d 205, 209 (5th Cir. 1949), cert. denied, 338 U.S. 816 (1949). The res judicata and statute of limitations considerations relied upon by the district court to find absence of any judicial remedy are wholly inapplicable. A void judgment by its nature is legally ineffective and creates no binding obliga tions. "A sentence of a court pronounced against a party without hearing him or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal." Windsor v . McVeigh, supra, 93 U.S. at 277. A court has no discretion to decide whether to set such a judgment aside. "Service of pro cess or notice is necessary to enable a court to exercise jurisdiction in a case; and if jurisdiction is taken in a case in which there has been no process or notice, the proceed ing is a nullity. It is not only voidable but it is absolutely void." Walden v. Craig's Heirs, 14 Pet. 147, 154 (1840), quoted in, Hicklin v. Edwards, 226 F.2d 410, 413 (8th Cir. . 1955); see, 11 Wright & Miller, Fed. Pract. & Pro. § 2862, n. 73 and accompanying text, supra. Nor need the party attacking the void judgment show that he has a meritorious claim or 20 or defense or other equities on his behalf. See, 11 Wright & Miller, Fed. Pract. & Pro. § 2862, n. 74 and accompanying text, supra; 7 Moore's Fed. Pract. 60.25 [2], n. 38 and accompanying text. By the same token, there is no time limit on an attack on a judgment that is void, nor can such a judgment acquire validity or be cured because of laches of a party. See, 11 Wright & Miller, Fed. Pract. & Pro. § 2862, nn. 7 5 and 76 and accompanying text, supra;* 7 Moore's Fed.I Pract. 51 60.25 [4] n. 5 and accompanying text, supra. Summary judgment is inappropriate, as Judge Tuttle put it, where the trial court fails to address "the truth or falsity of the jurisdictional allegations" going to the enforceability of a prior judgment. Hanes Supply Co. v. Valley Evaporating Co., 261 F.2d 29, 34-35 (5th Cir. 1958) (held defendant was entitled to show, when suit was brought on the judgment in the district court of its residence, that no agree ment to arbitrate had been made by it, or if so, none to arbitrate at the place where the arbitration was held, and that the judgment based on the purported arbitration was void for want of proper venue, and that the existence of a written provision in the contract to settle by arbitration was a fact question). The rule is that "[A] personal judgment for money cannot be rendered, and is void, if the court rendering it has not acquired jurisdiction of the defendant by a lawful service, unless service is waived by appearance or otherwise. If these appellants can by proper and sufficient evidence show they were never served they are entitled to a remedy." Jones v. Watts, 142 F.2d 575, 576 (5th Cir.), cert, denied, 323 U.S. 787 (1944). Similarly, where "[t]he motion filed by [default judgment debtor] supported by the affidavits to the effect that she had had no summons served upon her and had no knowledge of The pendency of the action constituted a sufficient presentation to the court of her claim that the default judgment against her was void" for trial of the issue. Hicklm v_._Edwards_, 226 F.2d 410, 413 (8th cir. 1955). See ~ '' ^ d ^ 2 ^ e _ ^ _ k o s e n u i u r n Jams. , 32 F.R.D. 247 (E.D. Pa. 1962). indeed, although final notice and opportunity for hearing were formally provided, a judgment is void where the unjustified striking of the appearance of a party in fact denies an opportunity for a hearing, Windsor v, 93 U.S. 274 (1876). Summary judgment is therefore erroneous and black former owners are entitled to trial of their defense and counterclaim that the condemnation judgments were void. II. The Lower Court Erred By Failing To Determine Whether Enforcement Of — Judgment Would Be Inequitable in addition to failing to accord a trial of claims that 22 the condemnation judgments were void for lack of personal jurisdiction, the lower court also failed to accord a trial of defense and counterclaims, in the nature of an independent action in equity, that the enforcement of the original judg ments would be inequitable. Rule 60, Fed. R. Civ. Pro., concerning relief from judgment or order, expressly provides, in pertinent part, that " [tjhis rule does not limit the power of a court to entertain an independent action to relieve a C party from a judgment, order, or proceeding" and that "the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action." Rule 60(b). The Federal Rules of Civil Procedure, thus, on their face preserve the preexisting independent action in equity. See, generally, 7 Moore's Fed. Pract., supra at 60.36; 11 Wright & Miller, Fed. Pract. & Pro., supra at § 2868. Such an action is "governed by principles which the courts have historically applied to the independent action in equity to reform a judgment." West Virginia Oil & Gas Co. v. George E. Bruce Lumber Co., 213 F.2d 702, 704 (5th Cir. 1954); Advisory Com. on Rules of Civ. Pro., Report of Proposed Amendments to Rules of Civil Procedure for the District Courts of the United States, 5 F.R.D. 433, 479 (1948). The office of the independent action in equity is that " [i]f a judgment be given in an action at common law, the 23 Chancellor may not alter or meddle with the judgment, but he may proceed against the person for corrupt conscience, because he takes advantage of the law against conscience." Anon. (1626) Litt. 37, 124 Eng. Rep. 124, quoted in 7 Moore's Fed. Pract., supra at 51 60.36, n. 1 and accompanying text. The action is an alternative basis for seeking relief from void judgments, but also provides a basis to attack valid judgments on established equitable principles. See, 7 Moore's Fed. Pract., supra at 51 60.36, at nn. 23-27 and accompanying text; 60.37 [1], nn. 43-44 and accompanying text. Where, as here, the principles of the independent action are used defen sively in an ejectment action, and, in any event, asserted in v'— / the same court that rendered the original condemnation judg ments being challenged, no jurisdictional problems arise. See, 7 Moore's Fed. Pract., supra at 5J5I 60.36, nn. 11, 15 and 32 and accompanying text; 60.38; 11 Wright & Miller, Fed. Pract. & Pro., supra at § 2868, n. 23 and accompanying text. There is no time limit save laches, as applicable, on when the action may be brought. In re Casco Chemical Co., 335 F.2d 645, 652 (5th Cir. 1964); see, 11 Wright & Miller, Fed. Pract. & Pro., supra at § 2868, nn. 19-20, and accompanying text. Here, although the lower court did not rule on laches, the affirmative defense was not properly pleaded, see supra at p. 5 n. 4, as required by Rule 8(c), Fed. R. Civ. Pro., 24 Funding Systems Leasing Corp. v. Pugh, 530 F.2d 91, 95 (5th Cir. 1976), and does not apply where relief from a void judg ment, supra at p. 21, or fraud is sought. Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 245 (1944) ("surely it cannot be that preservation of the integrity of the judi cial process must always await upon the diligence of litigants"). In any event, much of the course of conduct complained of was only recently discovered in government documents in defense of l the ejectment action. See supra at p. 15. The lower court's reliance on res judicata and statutes of limitations consider ations, therefore, is wholly inapplicable. " [T]he desire of courts to repair an injustice wrought by a judgment will over come the necessity for finality where it is against conscience to execute that judgment" in an independent action in equity. West Virginia Oil & Gas Co. v. George E. Bruce Lumber Co., supra, 213 F.2d at 704. It was error to grant summary judgment in the instant case, thus precluding trial of genuine issues of material fact that enforcement of condemnation judgments would be inequi table. The indispensable elements of such a cause of action are (1) a judgment which ought not, in equity and good conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of the defendant; and (5) the absence of any ade quate remedy at law. Bankers Mortgage Co. v. United States, 423 F.2d 73, 79 (5th Cir. 1970), quoting National Surety Co. v. State Bank, 120 Fed. 593, 599 (8th Cir. 1903). Plainly, summary judgment pre cludes a party from making "a substantial showing of equitable right," West Virginia Oil & Gas Co. v. George E. Bruce Lumberl Co., supra, 213 F.2d at 705, when the elements of a cause of action turn on such complex factual matters and elusive legal concepts as whether enforcement of a judgment will be con trary to "equity" and "good conscience," whether there is a "good defense" to the condemnation, whether "fraud, accident or mistake" prevented raising the defense, and whether there is absence of "fault or negligence" on the part of the party seeking relief. For instance, "equity" and "good con science" are matters which obviously require balancing of possibly competing and complicated facts which require consid- 4 eration. See, Kennedy v. Silas Mason Co., 334 U.S. 249, 256- 257 (1948). "Fraud" and "negligence," as concepts which involve determination of states of mind, are treated cautiously by courts. See, e .g., Croley v. Matson Navigating Co., 434 F.2d 73, 77 (5th Cir. 1970). Moreover, here, factual asser tions are made which, if proved at trial, would establish the 26 Whether black owners had effective S-/ need for a remedy. E .g ., notice and an opportunity to be heard in the condemnation proceedings? Whether oral representations that their land would be returned to them after the war were "fraud" or "mistake" requiring relief? Whether such representations caused black owners not to contest condemnation? Whether the land was suitable for aeronautical purposes? Whether there was unjust or no compensation? Whether lapse of the * need for the taking, i.e ., the end of the war, prior to final judgment makes enforcement inequitable or unjust under all the circumstances? Whether the "fraud," "bad faith," or other acts of state officials and their toleration by federal officials precludes enforcement as inequitable or unjust under all the circumstances? Whether use of the land as a national wildlife refuge, as opposed to farming by black owners to which it was once dedicated, is inequitable or unjust under all the circumstances? Summary judgment is therefore erroneous and black former owners are entitled to trial of their defenses and counter claims that enforcement of the condemnation judgments would be inequitable or unjust. KJ 27 III. Applicable Statutes Of Limitations Permit _____ The Defenses And Counterclaims______ Defendant black owners allege not only that the original condemnation judgments are void and subject to attack because their enforcement is inequitable and unjust, but also that the failure of federal officials, along with conspiring McIntosh County officials, to return the land to black owners after the wartime use of th<£ land ended through 1961, and the continuing improper present federal use of the land for a wildlife refuge, was independently actionable under the Fifth Amendment and civil rights acts. The lower court did rule on this part of the defenses and counterclaims, but erred in rul— 21/ ing that statutes of limitations bar all such claims. R. 54. With respect to the asserted racially discriminatory civil rights conspiracy from the end of the war to 1961 engaged in by county officials and permitted by federal offi cials to keep the land away from black owners and in the hands 21/ The lower court adverted to, but did not rule on, sover eign immunity as a defense. R. 54, pp. 6-7, n. 4. Sovereign immunity, however, is clearly not a defense for county offi cials or for federal officials under the Fifth Amendment here, see, e_;_g_. , Davis v. Passman, 442 U.S. 228 (1979); Carlson v . Green, ___U.S. ____, 64 L.Ed.2d 15 (1980). With respect to statutory civil rights claims against the government, the district court failed to consider whether officials acted unconstitutionally or ultra vires the powers conferred upon them, as is alleged. Ex parte Young, 209 U.S. 123 (1908); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689- 690 (1948). 28 vy of white county officials notwithstanding the void and inequi table condemnation and the Surplus Property Act of 1944, this was a single continuous course of unlawful conduct that did not end until 1961 when the land reverted to the United States. It is thus within the applicable 20 year period of limitations for actions "accruing to individuals under statutes." Code of Georgia Anno. § 3-704. United States v. Georgia Power Co., 474 F .2d 906, 924 (£th Cir. 1973). In any event, any statute i. of limitations period should be tolled or the government estopped from raising the bar because the acts complained of were undertaken in secret, unknown and learned by black owners only with the unearthing of documentary evidence in the defense of the ejectment action. Traer v. Clews, 115 U.S. 528 (1885); American Nat. Bank v. Fidelity & D. Co., 131 Ga. 854, 63 S.E. 622 (1909). In addition, the last counterclaim concerning the con tinued use of the land in contravention of Congressiona 1 will as expressed in the Freedmen's Bureau Act of 1866 directed that Harris Neck be used for the public purpose of farming by former slaves and their descendants. See infra at p. 31. If, as we contend, the statute creates the ongoing duty we assert, federal officials are presently in violation of the law, and no limitations apply. Laches, which the court below did not address, is discussed supra at pp. 24-25. 29 IV. \_' It Was Error To Deny The Motion To Join Additional Parties And To Add Counterclaims____ The lower court denied the motion to join as additional parties the county defendants pursuant to Rules 13(h) and 20 and the parallel motion for leave to amend to add counter claims against county officials for conspiracy to defraud the United States arid black, former owners pursuant to Rule 15. Supra at 6-7. Referring to the two-part Rule*20(a) test, the lower court conceded that "the Harris Neck defendants' claims against the United States and the McIntosh County defendants arguably arose out of the same series of occur rences," but that "[t]he facts involved in the claim against the United States, although historically related, are different from the facts needed to prove the claim against the McIntosh County defendants." R. 54, at p. 2. This simply misreads the record in which the fraud alleged was perpetrated by county officials in 1947-1961 against the United States and black owners, supra at p. 14, n. 18, and was inextricably tied to the inequitable and unjust taking and use of the land jointly engaged in by federal and state officials in this period. Joinder would enhance judicial economy because the trial of the fraud perpetrated by county officials is interlocked with, for instance, the inequitable toleration of the fraud by the 30 V J A « United States and the inequitable and unjust ousting of black owners. See, 7 Wright & Miller, Fed. Pract. & Proc., supra at § 1653. With respect to leave to amend to add the counterclaim against the county defendants, denial was error because leave "should be freely given when justice so requires." Foman v . Davis, 371 U.S. 178, 182 (1963). It was also error for the district court to deny leave to amend the complaint pursuant to Rule 15, Fed. R. Civ. Pro. to add an additional counterclaim that administrative taking and use of the land by federal and state authorities was con trary to the Congressional decision to dedicate the land to the original public purpose of farming by freedmen. See supra at pp. 7-8. Leave to amend "shall be freely given when jus tice so requires." Foman v. Davis, supra. The lower court conceded "[t]his proposed claim [only] alleges a new theory for recovery although no new facts are alleged," but found it "futile."(R. 53, p. 4) However, genuine issues of material fact are raised whether the wrongful taking and use alleged violate the will of Congress and, thus, due process. See, Hampton v. Mow Sun Wong, 426 U.S. 88, 103 (1976). \_<■* 31 CONCLUSION u « ; ¥ The orders of the district court of June 23, 1980, August 21, 1980, and August 25, 1980, should ve vacated, and defendant former black farmers permitted the opportunity to prove their defenses and counterclaims. Respectfully submitted, JACK GREENBERG BILL LANN LEE Suite 2030 10 Columbus Circle New York, N. Y. 10019 CLARENCE MARTIN 109 West Liberty Street P.O. Box 8906 Savannah, Ga. 31412 THOMAS ATKINS MARGRETT FORD 10th Floor 1790 Broadway New York, N. Y. 10019 MICHAEL A. FIGURES 1407 Davis Avenue Mobile, Ala. 36601 ORIN ALEXIS 1804 Paulsen Street Savannah, Ga. 31402 Attorneys for Defendants-Appellants 32 CERTIFICATE OF SERVICE Undersigned counsel for defendants-appellants Edgar Timmons, Jr., et al., certifies on this 16th day of January, 1981, that copies of the Brief for Defendants-Appellants and Record Excerpts were served on counsel for the parties by prepaid first class U. S. mail, addressed to: James C. Kilbourne Attorney^ Appellate Section Land and Natural Resources Division U. S. Department of Justice 9th and Penna. Ave., N.W. Washington, D. C. 20530 S| yi i -'''Ll ! Attorney of Record « 1 \ 9 33