                                                  Filed:   May 20, 1998


                  UNITED STATES COURT OF APPEALS

                      FOR THE FOURTH CIRCUIT



                              No. 96-2136
                           (CA-94-3535-JFM)



United States of America,

                                                 Plaintiff - Appellee,

         versus

Gloria J. Keller, et al,

                                              Defendants - Appellants.




                              O R D E R


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

    On page 5, second full paragraph, line 2 -- the phrase "for
such a trial" is changed to read "for a jury trial."

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

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

                                       For the Court - By Direction



                                          /s/ Patricia S. Connor
                                                      Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

GLORIA J. KELLER; GLADYS I.
POFFINBERGER; EDGAR POFFINBERGER;
CHARLOTTE KELLER,
Defendants-Appellants,                                         No. 96-2136

and

41.98 ACRES OF LAND, MORE OR
LESS, SITUATED IN FREDERICK
COUNTY, MARYLAND; UNKNOWN
OWNERS,
Defendants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CA-94-3535-JFM)

Argued: October 27, 1997

Decided: April 27, 1998

Before LUTTIG, Circuit Judge, CAMPBELL, Senior Circuit Judge
of the United States Court of Appeals for the First Circuit,
sitting by designation, and TRAXLER, United States District Judge
for the District of South Carolina, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Luttig wrote the majority opin-
ion, in which Senior Judge Campbell joined. Judge Traxler wrote a
dissenting opinion.
COUNSEL

ARGUED: R. Edwin Brown, BROWN & STURM, Rockville, Mary-
land, for Appellants. M. Alice Thurston, Environment and Natural
Resources Division, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Appellee. ON BRIEF: Laurie R. Hanig,
BROWN & STURM, Rockville, Maryland, for Appellants. Lois J.
Schiffer, Assistant Attorney General, Joy Ryan, Aimee Jiminez, John
A. Bryson, Environment and Natural Resources Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee.

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

This appeal arises from a condemnation proceeding initiated by the
United States to obtain title to property owned by the defendants-
appellants ("landowners"). Because the landowners believe the dis-
trict court erred in denying their untimely demand for a jury trial on
the issue of just compensation, they appeal that court's determination
of the amount of compensation due them. For the reasons stated
herein, we affirm.

I.

On December 21, 1994, the United States filed a complaint in con-
demnation to obtain, assertedly for the purposes of administering, pre-
serving, and developing the Appalachian National Scenic Trail,
approximately 42 acres of land owned by the landowners. See J.A. at
6. The government simultaneously served the landowners with notice,
and included with the notice a demand for a jury trial on the issue of
just compensation pursuant to FRCP 71A. Id. at 6, 8. The landowners
did not file an answer to the complaint.1
_________________________________________________________________

1 Under FRCP 71A(e), a landowner's failure to answer a complaint in
condemnation constitutes a waiver of objections or defenses to the taking
of his property, but does not foreclose him from presenting evidence as
to the amount of compensation to be paid for the property.

                    2
Several months of negotiations ensued between government coun-
sel and the landowners. Orally and in writing, the government repeat-
edly urged the landowners to retain counsel. See J.A. at 33.
Throughout 1995, the landowners did not obtain counsel, but actively
negotiated on their own behalf.

In January of 1996, the government requested that the condemna-
tion dispute be scheduled for trial in May, J.A. at 30-31, and the court
apparently complied. In early April, as the trial drew near, govern-
ment counsel informed the landowners in writing:

        [N]ow with the trial date approaching, I must change my
        role from being a negotiator to that of advocate. . . .

        As you know, I have suggested on several occasions that
        you get an attorney to represent you. I still believe that is
        good advice. However, I want you to understand that, if you
        wait until shortly before trial to bring in an attorney, your
        attorney will have to prepare quickly. I will not be able to
        agree to delay the trial. Therefore, I suggest that, if you are
        going to change your mind and retain an attorney, you
        should do so within a week.

J.A. at 33. Shortly thereafter, the landowners retained counsel. On
April 18, 1996 -- nearly sixteen months after the initial complaint
was filed -- counsel for the landowners filed a demand for a jury trial
on the issue of just compensation. J.A. at 16-17. Four days later, the
government formally withdrew its demand for a jury trial, and con-
currently filed a motion to "retain" the "non-jury trial setting." J.A. at
18-19.2

The trial was ultimately continued until July 22-23, 1996, to allow
the landowners' counsel time to prepare. On July 8, 1996, the district
court denied the landowners' demand for a jury trial. This denial was
explicitly based on that court's attempt to resolve certain discovery
_________________________________________________________________

2 It is not entirely clear from the record whether the case had in fact
been set for a nonjury trial; while the government had requested a bench
trial for two other cases the same day, it had not specifically made such
a request for this case. See J.A. at 30-31.

                     3
disputes that had arisen (the landowners had failed to disclose in a
timely manner the nature of their expert appraisal reports or the iden-
tity of their trial witnesses, and the government had accordingly
sought to exclude this evidence) in a manner it believed fair to both
parties:

        Frankly, in light of the other motions, I -- there have been
        all kinds of motions filed regarding discovery matters
        because of late production of discovery. So . . . I finally
        decided that the just way to resolve this was to deny the
        untimely request for a jury trial.

        I am going to let things happen today and see where we
        stand in terms of the discovery issues. I want the landowners
        to be able to fully present their case as they see appropriate.
        If it ultimately turns out that I cannot finally decide the
        issues today because of unfair prejudice to the United States
        because of not having been told things in advance, then one
        of the virtues of a nonjury case is that we can postpone it.

        Hopefully, after all is said and done today, the landown-
        ers . . . will be able to express his and their views, and I will
        be able to come to a decision. If not, as I say, one of the ben-
        efits of a nonjury case is that we won't have to worry about
        bringing eight to twelve people back. I will just postpone it
        and see where it goes.

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

II.

The law governing access to jury trials in federal condemnation
proceedings is relatively clear. First, it is settled law that there is no
constitutional right to a jury trial in such a proceeding. See, e.g.,
United States v. Reynolds, 397 U.S. 14, 18 (1970); Bauman v. Ross,
167 U.S. 548, 593 (1897). Rather, the availability of a jury trial in a
condemnation case brought by the United States is governed by FRCP
71A(h), which provides:

                     4
        If the [condemnation] action involves the exercise of the
        power of eminent domain under the law of the United
        States, any tribunal specially constituted by an Act of Con-
        gress governing the case for the trial of the issue of just
        compensation shall be the tribunal for the determination of
        that issue; but if there is no such specially constituted tribu-
        nal any party may have a trial by jury of the issue of just
        compensation by filing a demand therefor within the time
        allowed for answer or within such further time as the court
        may fix, unless the court in its discretion orders that,
        because of the character, location, or quantity of the prop-
        erty to be condemned, or for other reasons in the interest of
        justice, the issue of compensation shall be determined by a
        commission of three persons appointed by it.

It is clear that this rule does not provide an "absolute right" to a jury
trial. Atlantic Seaboard Corp. v. Van Sterkenburg, 318 F.2d 455, 459
(4th Cir. 1963). Not only is a party's access to such a trial restricted
to the issue of just compensation, see Reynolds, 397 U.S. at 19 (so
interpreting FRCP 71A), but a jury trial even on this issue cannot be
obtained if Congress has by statute provided a special tribunal for trial
of the issue, or if the court, in its discretion, orders that the issue be
determined by commission. See United States v. 21.54 Acres of Land,
491 F.2d 301, 304 (4th Cir. 1973); Atlantic Seaboard, 318 F.2d at
459; United States v. Cunningham, 246 F.2d 330, 332 (4th Cir. 1957).

Furthermore, to obtain even the limited access to a jury provided
by the rule, a party must make a timely demand for a jury trial.
Unless otherwise provided by the court, a defendant must make such
a demand within twenty days of service of notice of the government's
complaint. Compare FRCP 71A(h) (Jury demand must be filed
"within the time allowed for answer or within such further time as the
court may fix."), with FRCP 71A(e) (Defendant's answer is due
"within 20 days after the service of notice."). Fourth Circuit precedent
makes clear that where a party makes an untimely demand for a jury
trial, a district court may, in its discretion, deny that demand and
instead conduct a bench trial. Compare Atlantic Seaboard, 318 F.2d
at 457-58 (District court conducted bench trial of all issues, including
that of just compensation, after denying jury demand"on the ground
that it was untimely and the Court was not disposed to exercise its

                    5
discretion to waive the procedural default."), with id. at 459 ("We find
no basis for the contention that the Court's denial of the tardy demand
for a jury was an abuse of its discretion.").

III.

The landowners do not challenge the validity of these general prin-
ciples. Nor do they dispute either the fact that they did not demand
a jury trial until almost sixteen months after receiving notice of the
condemnation complaint, or the fact that the district court neither
extended the deadline for making such a demand nor exercised its dis-
cretion to excuse the landowners' procedural default. Nevertheless,
the landowners argue that the district court wrongfully denied their
demand for a jury trial.

In so arguing, and in attempting to distinguish the principles set
forth above, the landowners rely on the facts that (1) the landowners
were not represented by counsel at the time that they should have
demanded a jury trial, (2) the government did not tell the landowners
that they needed to demand such a trial, and (3) the government ini-
tially demanded a jury trial, and then subsequently withdrew this
demand. On the basis of these facts, the landowners urge us to find
either that they did not knowingly waive their right to a jury trial, or
that the government was estopped from withdrawing its demand for
a jury trial, and to hold, on either or both of these grounds, that the
district court erred in denying their untimely jury demand.

We do not believe, however, that the facts urged by the landowners
required the district court to grant the landowners' belated demand.
As for the fact that the landowners were unrepresented by counsel, we
note simply that this circumstance resulted from the landowners'
deliberate choice not to consult or retain counsel, that the government
repeatedly, and ultimately successfully, urged the landowners to
reconsider this initial decision, see J.A. at 33, and thus that any preju-
dice that may have resulted from the landowners' pro se status can
be ascribed to no one other than the landowners themselves. And as
for the fact that the government did not inform the landowners that
they needed to demand a jury trial, we note primarily that FRCP
71A(d)(2) specifies precisely what information the government must
provide when it serves notice of a condemnation action, that the gov-

                     6
ernment here complied with the requirements of this rule, and that
FRCP 71A(d)(2) simply does not require the government to inform
landowners when or how they may demand a jury trial.

At first blush, the fact that the government initially demanded a
jury trial on the issue of just compensation, and then subsequently
withdrew this demand, appears slightly more problematic. As the
landowners note, FRCP 38(d) states that "[a] demand for trial by jury
made as herein provided may not be withdrawn without the consent
of the parties." (Emphasis added). Although the landowners half-
heartedly argue that the italicized language in this rule refers to a jury
demand made pursuant to any of the Federal Rules of Civil Proce-
dure, and thus that the rule operated to prevent the government from
withdrawing its jury demand without the landowners' consent, we
believe it quite clear that the italicized language refers to a jury
demand made pursuant to the procedures outlined earlier in FRCP 38.3
See FRCP 38(b) (outlining procedures by which "[a]ny party may
demand a trial by jury of any issue triable of right by a jury"). And
in the case sub judice, the government's jury demand was made not
pursuant to FRCP 38(b), but rather pursuant to FRCP 71A(h), which
does not similarly prohibit the withdrawal of a jury demand.

Nor can we, consistent with the language of either FRCP 71A or
FRCP 38, read the requirements of FRCP 38(d) to apply to a condem-
nation proceeding. First, FRCP 71A makes clear that where, as here,
that rule speaks to a procedural issue, it preempts other rules of proce-
dure. See FRCP 71A(a) ("The Rules of Civil Procedure for the United
States District Courts govern the procedure for the condemnation of
real and personal property under the power of eminent domain, except
as otherwise provided in this rule."). Second, and more importantly,
_________________________________________________________________

3 We find unpersuasive the landowners' efforts to distinguish this lan-
guage from that contained in the preceding sentence, which provides that
"[t]he failure of a party to serve and file a demand as required by this
rule constitutes a waiver by the party of trial by jury," FRCP 38(d)
(emphasis added), which indisputably limits the scope of the sentence in
which it is contained to jury demands made pursuant to FRCP 38. If any-
thing, the close proximity between this sentence and the subsequent sen-
tence at issue in this case confirms our understanding that the latter
sentence is also so limited.

                    7
FRCP 38 -- which is, after all, entitled "Jury Trial of Right" --
applies by its terms only to cases where a party has a constitutional
or statutory right to a jury trial. Compare FRCP 38(a) ("The right of
trial by jury as declared by the Seventh Amendment to the Constitu-
tion or as given by a statute of the United States shall be preserved
to the parties inviolate."), with FRCP 38(b) ("Any party may demand
a trial by jury of any issue triable of right by a jury by [following
specified procedures]."). As noted earlier, however, it is settled law
that there is no constitutional right to a jury trial in a condemnation
case. And we do not believe that the limited, conditional access to a
jury contemplated by FRCP 71A(h) constitutes a statutory right to
trial by jury within the meaning of FRCP 38, especially where, as
here, the party seeking to assert such a "right" has not complied with
the requirements of FRCP 71A(h) by, inter alia, making a timely jury
demand. Such a party is not even entitled to a jury determination of
the single issue of just compensation under FRCP 71A(h); a fortiori,
such a party cannot be said to have a statutory right to a jury trial.
Accordingly, such a party's demand for a jury trial simply falls out-
side the purview of FRCP 38.

These considerations make clear that, because the landowners
failed to comply with the procedures outlined in FRCP 71A, they had
no right to a jury trial on the issue of just compensation. Accordingly,
their argument that they did not voluntarily waive this "right" must
fail. And even if the landowners had a constitutional or statutory right
to such a trial, a failure to make a timely jury demand would clearly
constitute waiver. See FRCP 38(d). Nor, given that the government
complied with the express requirements of FRCP 71A-- a rule
which, unlike FRCP 38, does not prohibit the unilateral withdrawal
of a jury demand -- can we find that the government was estopped
from withdrawing its jury demand. To do so, we would be required
either to engraft an implicit limitation upon the plain language of
FRCP 71A, or to import into the rule principles of estoppel from
FRCP 38 or other sources. This we are unwilling to do.4
_________________________________________________________________

4 While the preceding analysis makes clear that the district court was
not required to grant the landowners' belated demand for a jury trial, it
is also clear that the court could have chosen, in its discretion, either to
extend the deadline for making a jury demand, see FRCP 71A(h), or to

                     8
CONCLUSION

For the foregoing reasons, the district court's determination of just
compensation is affirmed.

AFFIRMED

TRAXLER, District Judge, dissenting:

With respect, I dissent. In my view, the government could not with-
draw its timely demand for a jury trial without the landowners' con-
sent. I would remand either for a jury trial on the issue of just
compensation or, if the district judge determines that it is appropriate,
for appointment of a three-person commission to resolve the matter.

I.

As the majority rightly observes, because there is no constitutional
right to a jury trial in land condemnation proceedings, Rule 71A of
the Federal Rules of Civil Procedure dictates when a jury may be
employed in such cases. See United States v. Reynolds, 397 U.S. 14,
18-19 (1970). In fact, it is precisely Rule 71A(h) that restricted the
district court from conducting a bench trial under the circumstances.

It is useful to begin by closely examining the options that Rule 71A
provides a district judge for ascertaining just compensation. In federal
condemnation actions, the district judge alone "is to decide all issues,
legal and factual," save one -- the narrow factual question of just
compensation. Id. at 19; see Fed.R.Civ.P. 71A(h). On this issue, Rule
71A(h) contemplates that just compensation will be settled by one of
four methods, including a jury trial.1 See Fed.R.Civ.P. 71A(h); 13
_________________________________________________________________

waive the landowners' procedural default, see Atlantic Seaboard, 318
F.2d at 457. Given that the district court's decision to deny the jury
demand was made to accommodate the landowners' failure to comply
with their discovery obligations in a timely manner, it cannot seriously be
contended that the district court abused its discretion.

1 Rule 71A(h) generally addresses trial procedure in condemnation
actions. The relevant portion of the rule provides:

                    9
James Wm. Moore et al., Moore's Federal Practice § 71A.11[1][a]
(3d ed. 1997). First, regardless of whether one or both parties wish for
a jury to fix just compensation, the issue will be settled by a special
tribunal if one has been established by Congress. See Fed.R.Civ.P.
71A(h). Second, if no such tribunal exists, then"any party may have
a trial by jury of the issue of just compensation by filing a demand
therefor within the time allowed for answer ...." Id. Provided a timely
demand has been made, "trial by jury [is] the usual and customary
procedure to be followed," United States v. Cunningham, 246 F.2d
330, 332 (4th Cir. 1957) (internal quotation marks omitted); see also
United States v. Hardage, 58 F.3d 569, 576 (10th Cir. 1995) ("Any
party to a condemnation proceeding is ordinarily entitled to a jury
trial to fix the value of the property taken where demand is made as
provided in Rule 71A(h)."). Third, notwithstanding the parties' timely
requests for a jury trial, the court is vested with the discretion to
appoint a three-person commission to determine just compensation if
the property is particularly vast or remote, or other circumstances pre-
vail which would make a jury determination of the issue unwieldy.
See Fed.R.Civ.P. 71A(h); Atlantic Seaboard Corp. v. Van Sterken-
burg, 318 F.2d 455, 459 (4th Cir. 1963) (noting that the district court,
"under certain circumstances, has the right to order the issue tried
before a commission of three persons, despite a timely demand for a
jury"). Finally, if neither party has demanded a jury trial and the court
does not appoint a commission, and assuming that Congress has not
_________________________________________________________________

       If the action involves the exercise of the power of eminent
       domain under the law of the United States, any tribunal specially
       constituted by an Act of Congress governing the case for the trial
       of the issue of just compensation shall be the tribunal for the
       determination of that issue; but if there is no such specially con-
       stituted tribunal any party may have a trial by jury of the issue
       of just compensation by filing a demand therefor within the time
       allowed for answer or within such further time as the court may
       fix, unless the court in its discretion orders that, because of the
       character, location, or quantity of the property to be condemned,
       or for other reasons in the interest of justice, the issue of com-
       pensation shall be determined by a commission of three persons
       appointed by it.

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

                   10
provided a special tribunal, the court may serve as finder of fact on
the issue of just compensation. See Moore at al., supra,
§ 71A.11[1][e] (explaining that "[u]nder Rule 71A(h), if a jury trial
is not demanded by any party, and Congress has not authorized a tri-
bunal, then the court must, by default, conduct a bench trial"). When
no special tribunal is involved, the plain terms of the rule permit the
district judge only two options if a timely jury demand has been
made: to allow a trial by jury or, if appropriate, to appoint a three-
person commission. Thus, if the landowner doubts that the estimated
compensation is an adequate exchange for his land,"he is, with two
exceptions, entitled to have this issue determined by a jury," the first
being when "the court determines that valuation should be resolved
by a commission of three persons, and the second[being] when Con-
gress has expressly established a tribunal to determine the amount of
compensation due." United States v. 21.54 Acres of Land, 491 F.2d
301, 304 (4th Cir. 1973). As I see it, then, the district judge does not
have discretion to insist upon a bench trial on just compensation in
the face of a proper jury demand by one of the parties.2

Here, the district court determined the question of just compensa-
tion without the aid of a jury in large measure because the landowners
failed to make a seasonable jury demand under Rule 71A(h). Thus,
the question is this: whether the landowners, having failed to request
a jury trial within the time allotted by Rule 71A(h), were permitted
to rely upon the government's timely request for a jury trial, i.e.,
whether the district court was empowered to allow the government to
withdraw its timely jury demand without the landowners' consent. If
the government could not withdraw its demand in the absence of the
landowners' consent, the district court did not have the option of con-
_________________________________________________________________

2 The majority cites Atlantic Seaboard for the proposition that when a
party makes an untimely jury demand, the district court may conduct a
bench trial. See Atlantic Seaboard, 318 F.2d at 459. I have no quarrel
with this reading. Atlantic Seaboard, however, simply does not address
the dispositive issue because neither party in that case made a timely
demand for a jury determination of just compensation. In this case, how-
ever, the government made a timely request, and this difference is piv-
otal. Consequently, Atlantic Seaboard does not present the question that
is presented here -- whether a jury demand in a condemnation action
may be withdrawn over the objection of the opposing party.

                    11
ducting a bench trial, limited in its discretion to choosing between a
jury trial and a three-person land commission.

II.

Rule 71A(a) instructs that the Federal Rules of Civil Procedure
apply to federal condemnation actions just as they do to any other
civil proceeding in federal court unless Rule 71A expressly provides
otherwise. Because Rule 71A does not tell us whether a timely jury
demand may be withdrawn unilaterally, as the government did here,
the landowners contend -- correctly, I believe-- that Rule 38(d)
applies and precludes the government from withdrawing its request
for a jury trial without their consent.

Rule 38(d) directs us as follows: "The failure of a party to serve
and file a demand as required by this rule constitutes a waiver by the
party of trial by jury. A demand for trial by jury made as herein pro-
vided may not be withdrawn without the consent of the parties."
Fed.R.Civ.P. 38(d). In view of the straightforward language of Rule
71A(a), I cannot agree with the conclusion of the majority that
because Rule 71A(h) addresses jury demands in a condemnation case,
it preempts the withdrawal provisions of Rule 38(d)-- provisions that
are not specifically covered by Rule 71A(h). Such a conclusion, I
fear, suggests that the mere fact that Rule 71A generally addresses a
procedural topic covered more specifically elsewhere in the rules pre-
cludes courts from consulting the other rules for guidance on issues
that are not specifically addressed by Rule 71A. In my judgment, the
rules regarding the trials of land condemnation actions were intended
to mesh as much as possible with the rules regarding civil trials in
general. Consequently, I believe the better view is that the normal
civil rule regarding the request for, and waiver of, a jury trial supple-
ments the jury trial provisions of Rule 71A(h).

Before Rule 71A became effective on August 1, 1951, land con-
demnation proceedings in federal court were subject to the vagaries
of a patchwork of inconsistent state and federal procedures. See
generally Fed.R.Civ.P. 71A advisory committee's notes, original
report. The Federal Rules of Civil Procedure did not apply to land
condemnation proceedings, governing only appeals from such
actions. See Fed.R.Civ.P. 81(a)(7) (abrogated by Supreme Court

                    12
Order, Apr. 30, 1951); United States v. Theimer, 199 F.2d 501, 503
(10th Cir. 1952). Some federal statutes, for example, authorized the
exercise of the power of eminent domain and directed that courts
employ the procedure used by the state courts in similar circum-
stances, while other statutes merely authorized condemnation without
addressing the appropriate procedure to follow. See Fed.R.Civ.P. 71A
advisory committee's notes, original report; see also 12 Charles Alan
Wright et al., Federal Practice and Procedure § 3041 (2d ed. 1997).
Still other statutes provided comprehensive procedures for certain
types of condemnation actions. See Fed.R.Civ.P. 71A advisory com-
mittee's notes, original report; Wright et al., supra, § 3041.

The adoption of Rule 71A greatly simplified matters, "capp[ing] an
effort to establish a uniform set of procedures governing all federal
condemnation actions." Kirby Forest Indus., Inc. v. United States, 467
U.S. 1, 4 n.2 (1984). The text of the rule now makes clear that "[t]he
Rules of Civil Procedure for the United States District Courts govern
the procedure for the condemnation of real and personal property
under the power of eminent domain, except as otherwise provided" in
Rule 71A itself. Fed.R.Civ.P. 71A(a). The difficulty, of course, often
lies in determining whether Rule 71A has "otherwise provided" for
the determination of a particular issue, displacing another provision
of the Federal Rules that would ordinarily apply. In various instances,
Rule 71A clearly "otherwise provide[s]," prescribing unique proce-
dures for condemnation proceedings. See, e.g., Fed.R.Civ.P.
71A(d)(3)(A) (instructing that a copy of the complaint not be served
upon the landowner); Fed.R.Civ.P. 71A(e) (requiring the landowner
to present all objections and defenses in the answer and prohibiting
any other motion or pleading that asserts a defense); Fed.R.Civ.P.
71A(f) (allowing the plaintiff to amend the complaint without leave
of court "as many times as desired" prior to trial, subject to certain
limitations). Elsewhere, Rule 71A incorporates the provisions of other
rules of procedure by specific reference. See, e.g., Fed.R.Civ.P.
71A(d)(3)(A) (requiring that personal service of the notice of con-
demnation be made upon the landowner in accordance with the provi-
sions of Rule 4); Fed.R.Civ.P. 71A(f) (directing that the plaintiff
follow Rule 5(b) in serving the landowner with notice of the filing of
an amended complaint); Fed.R.Civ.P. 71A(h) (providing that "[i]f a
commission is appointed it shall have the powers of a master provided

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

With respect to some subjects, however, Rule 71A is silent, in
which case the ordinarily applicable rule of procedure, if any, governs
by operation of subsection (a) of Rule 71A. See, e.g., Kirby Forest,
467 U.S. at 18 (holding that a landowner may move to amend an
award of compensation under Rule 60(b)); United States v. 416.81
Acres of Land, 525 F.2d 450, 455 (7th Cir. 1975) (applying the provi-
sions of Rules 26(b)(4) and 37(a)(2) to a land condemnation proceed-
ing); United States v. Evans, 365 F.2d 95, 98 (10th Cir. 1966) (finding
that Rule 54(b) controls finality of judgment that does not resolve all
claims in a condemnation action); Cunningham, 246 F.2d at 333
(explaining that a land commission must make findings of fact in
accordance with the provisions of Rule 52(a)).

In this instance, Rule 71A(h) is silent. It does not address whether
a party may simply withdraw its timely request for a jury trial without
obtaining consent from the opposing party, leaving the district court,
in essence, to proceed as if no jury demand had been made in the first
place. Receiving no express guidance from the text of subsection (h),
I believe we are obliged to apply the directive of subsection (a) of
Rule 71A and look to the other rules of procedure for our answer.
Rule 38, which governs the preservation of the right to a jury trial in
other civil actions, is the obvious place to begin. See Moore et al.,
supra, § 71A.11[1][c] (observing that "Rule 71A does not specifically
address the method of conducting a jury trial in a condemnation pro-
ceeding and, accordingly, the general provisions of the Federal Rules
of Civil Procedure" apply, referring to Rule 38 in particular). The
terms of Rule 38 provide that "[a] demand for trial by jury made as
herein provided may not be withdrawn without the consent of the par-
ties." Fed.R.Civ.P. 38(d). Under the rubric of Rule 38(d), once a party
enters a timely demand for a jury trial, the other parties to the action
may rely on that demand, safe in the knowledge that it will not be
withdrawn without the consent of all the parties, see Bennett v.
Pippin, 74 F.3d 578, 586-87 (5th Cir.), cert. denied, 117 S. Ct. 68
(1996), and that no additional demand is required to secure the use of
a jury, see Fuller v. City of Oakland, 47 F.3d 1522, 1531 (9th Cir.
1995). Because Rule 71A(h) is mute on the question of withdrawal,
the provisions of Rule 38(d) should be imported, requiring the con-

                    14
sent of all interested parties before a timely jury demand on the issue
of just compensation may be withdrawn. To find otherwise would be
to conclude that the drafters of Rule 71A(h), by their silence, altered
the rules for withdrawing a jury demand that apply to every other pro-
ceeding governed by the Federal Rules of Civil Procedure. I believe
the better view -- and one which is compelled by Rule 71A(a) -- is
that the text of Rule 71A(h), by its silence, allows for the application
of the "general framework of the Federal Rules where specific detail
is unnecessary." Fed.R.Civ.P. 71A(a) advisory committee's notes,
original report. Such an interpretation provides, as I believe the
drafters of Rule 71A intended and common sense dictates, a measure
of consistency in the application of Rule 71A with normal rules of
procedure that ordinarily control civil proceedings in federal courts.
A contrary interpretation would create an unwarranted anomaly.3

In light of the landowners' unwillingness to consent, the govern-
ment should not have been permitted to withdraw unilaterally its
timely jury demand. Presented with a timely jury demand, the district
court had but two options under Rule 71A(h): allow a jury to deter-
mine just compensation or, if the court in its discretion decided that
circumstances required it, appoint a three-person commission to make
the determination. See 21.54 Acres of Land, 491 F.2d at 304. Having
not exercised its discretion to appoint a commission, the court was
constrained to permit "the usual and customary" method of determin-
ing just compensation -- trial by jury. See Cunningham, 246 F.2d at
332. The strict terms of the rule simply do not provide a bench trial
as an option for determining the amount of compensation a landowner
should receive in exchange for the condemned property when a timely
jury demand has been made. As a result, the district court erred in not
allowing the landowners a jury trial.4
_________________________________________________________________

3 The majority indicates that it is unwilling "to engraft an implicit limi-
tation upon the plain language of FRCP 71A, or to import into the rule
principles of estoppel from FRCP 38 or other sources." Supra, at 8. Rule
71A(a), however, explicitly directs us to import principles from other
procedural rules if Rule 71A does not "otherwise provide." In my view,
Rule 71A does not address the question sub judice, requiring us to look
to the other rules of procedure.

4 As the majority notes, the district court was genuinely attempting to
provide a framework for trial in which the court could accommodate var-

                    15
III.

I also must diverge from the majority in its conclusion that Rule
38 does not apply in any respect to federal condemnation proceedings
because the rule applies only to jury trials "of right" and that there is
no constitutional or statutory right to have a jury determine just com-
pensation in a condemnation case. See Fed.R.Civ.P. 38(a) (preserving
the right to a jury trial "as declared by ... the Constitution or as given
by a statute of the United States"). Although the landowners certainly
have no right to a jury trial under the Seventh Amendment in condem-
nation cases, see Reynolds, 397 U.S. at 18, I cannot concur that the
absence of a constitutional right to a jury trial in these circumstances
bars the application of Rule 38(d). Under the plain terms of Rule
71A(h), a properly demanded jury trial on the issue of just compensa-
tion "is a matter of right," Hardage, 58 F.3d at 576, provided that
Congress has not created a special tribunal for the case and that the
district court does not appoint a land commission, see Fed.R.Civ.P.
71A(h). When these two exceptions do not apply, a timely demand
for a jury trial is "of right" by Rule 71A(h) and may not be ignored
in favor of a bench trial. The fact that this right-- albeit narrow --
exists by virtue of Rule 71A rather than a federal statute does not pre-
vent the use of Rule 38(d) in this case, since Rule 71A(h) operates as
a statute:

        [Rule 71A(h)] is not an Act of Congress in the ordinary
        sense, but it has the force and effect of a statute. It could not
        have become effective over Congressional objection. It and
        the other rules proposed by the Supreme Court of the United
        States and permitted, with or without change, by the Con-
        gress to become effective are clearly portions of the body of
        federal law.

Washington Metro. Area Transit Auth. v. Two Parcels of Land in
Fairfax Co., Va., 569 F.2d 816, 819 (4th Cir. 1978); see also McCoy
_________________________________________________________________

ious procedural problems that existed, most of which were caused by the
landowners themselves. Under the unique circumstances of this case,
however, I do not believe the solution chosen by the district court was
an option permitted by the rule.

                     16
v. Massachusetts Inst. of Technology, 950 F.2d 13, 21 (1st Cir. 1991)
("The Federal Rules of Civil Procedure ... have the same force and
effect as federal statutory law."). Moreover, the Federal Rules of Civil
Procedure, including Rule 71A, are made effective by operation of the
Rules Enabling Act, see 28 U.S.C.A. § 2072 (West 1994), through
which Congress delegated its procedural rule-making power to the
Supreme Court, see Sibbach v. Wilson & Co., 312 U.S. 1, 9-10
(1941); Mistretta v. United States, 488 U.S. 361, 386-88 (1989). In
promulgating Rule 71A, therefore, the Supreme Court was exercising
a delegated legislative power. Because the entitlement to a jury trial
on just compensation -- as narrow as it is under Rule 71A(h) -- was
created through the exercise of congressional rule-making authority
and pursuant to an Act of Congress, and because the rule carries "the
force and effect" of a statute, Rule 38(d) applies and supplements
Rule 71A(h) where it is silent, providing a ready set of rules and elim-
inating guesswork when a party wishes to withdraw its jury demand.

In sum, Rule 71A(h) does not address the withdrawal of a timely
demand for a jury trial. Thus, we are left with the choice of either
treating the situation in the same manner that it would be treated in
any other civil case under Rule 38(d) or creating a completely differ-
ent rule just for condemnation actions. Because I find the straightfor-
ward directive in Rule 71A(a) instructive and because the creation of
a unique rule would be confusing and unwarranted, I am convinced
that the withdrawal provisions of Rule 38(d) control the outcome in
this case.

For these reasons, I respectfully dissent.

                    17
