United States v. Timmons Jr. Brief 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 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