Bellamy v. United States

7 Cl. Ct. 720, 1985 U.S. Claims LEXIS 1003
United States Court of Claims·Decided April 12, 1985·No. No. 593-83L·Published·Cited by 13 cases

Opinion

OPINION

YOCK, Judge.

In this case, the plaintiffs seek to recover for the alleged failure of the defendant to afford the plaintiffs the opportunity to repurchase real property formerly owned by them, which was condemned by the Government, in 1941, under the Emergency War Powers Act, Act of July 2, 1917, ch. 35, 40 Stat. 241 (codified as amended at 50 U.S.C. § 171 (1940)) (repealed 1956). The defendant has filed a motion to dismiss, and the plaintiff has filed a response in opposition to such motion. For the reasons discussed below, the defendant’s motion to dismiss is granted, and the complaint will be dismissed without prejudice.

Facts

In 1941, the Government acquired by condemnation some 95,497 acres of land, situated in Horry and Georgetown Counties, South Carolina, under the Emergency War Powers Act, supra. Subsequently, the Government turned such land into the Myrtle Beach Aerial Gunnery and Bombing Range. The plaintiffs are the former owners, or the heirs of the former owners, of three tracts of land, constituting 76.5 acres, included in that acquisition. In 1946 or 1947,1 pursuant to the Surplus Property Act of 1944, ch. 479, 58 Stat. 765 (1944) (originally codified at 50 U.S.C.App. §§ 1611-46 (Supp. IV 1941-1945)) (repealed 1949),2 some of this property was excessed and sold to the City of Myrtle Beach, South Carolina, since it was no longer needed by the Federal Government.3 A portion of the [722] plaintiffs’ former property was included in that excessed property. Subsequently, in 1948 or 1949, the plaintiffs allege that the City of Myrtle Beach deeded some of that excessed property back to the defendant, which was then followed by a second declaration of surplus. In any event, the subject real estate is now in the Government’s possession.

In 1981, a portion of the Myrtle Beach U.S. Air Force Base, South Carolina, was determined by the Government to be excess property. This portion consisted of 27.23 acres of land, which had been part of the original 95,497 acres condemned in 1941. On July 27,1983, the General Services Administration issued an invitation for bids on this property.

The plaintiffs contend that they had no notice, actual or constructive, that their property had been excessed in 1946 or 1947, until they began making inquiries in response to the July 27, 1983, invitation for bids, some 30 odd years after a portion of their former property was first excessed pursuant to the Surplus Property Act of 1944. The plaintiffs argue that the defendant acted unconstitutionally in not affording them an opportunity to exercise the repurchase rights of former owners of property acquired by a Government agency after December 31, 1939.4 As the former owners of the property that was condemned in 1941, the plaintiffs claim that the Government should have notified them in 1946 or 1947 of their right to priority in repurchasing their property.5

Further, the plaintiffs assert that the defendant employed a “selective notification” system by notifying some, but not all, of the former owners of the 95,497 acres of land condemned in the 1941 acquisition. Those former owners who received such notification were properly given the opportunity to repurchase their former real property. Subsequently, the defendant deeded some of the condemned property back to the original owners at or below the price for which it was originally acquired by the Government in 1941. The plaintiffs argue that, as a result of this selective notification in 1946 or 1947, the defendant classified the condemnees into two groups: (1) those condemnees who were given an opportunity to retrieve their condemned land when it was excessed, and (2) those condemnees who were not given such an opportunity. According to the plaintiffs, this classification violated the equal protection component embodied in the fifth amendment due process clause. Furthermore, the plaintiffs argue that the defendant’s failure to notify them of their repurchase right deprived the plaintiffs of property without due process of law. The plaintiffs, however, specifically have not alleged that such Governmental action constituted a fifth amendment taking of their former property.

To remedy this perceived injustice, the plaintiffs seek the right to repurchase their former property at or below the price for which it was acquired by the Government in 1941. Alternatively, the plaintiffs seek to recover the current fair market value of such land. Moreover, the plaintiffs seek to recover the fair rental value of the proper[723] ty from the date that it was declared surplus property in 1946 or 1947.

The defendant has responded to the plaintiffs’ complaint by answer, and now by motion to dismiss. In its motion to dismiss, the defendant asserts that the plaintiffs’ claims: (1) do not fall within the jurisdiction of this Court, since they are based on fifth amendment due process and equal protection rights; (2) fail to state a claim upon which relief may be granted, since the statutory provisions upon which they are based have been repealed; and (3) in any event, are barred by the statute of limitations.

Discussion

I. Fifth Amendment Claims

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