dissenting:
Judge Hall’s carefully reasoned and elegantly phrased dissent commands my complete concurrence. I add a few words only so not, by silence, to be deemed to have accepted certain aspects of the majority opinion of Judge Butzner and the concurring opinion of Judge Phillips.
With respect to Judge Phillips, I suggest that he places too great reliance on the fact that there is an in rem aspect to a condemnation proceeding. It is not the in rem character on which I rely for my conclusion that there is no “disputed title to real property in which the United States claims an interest,” and hence no jurisdictional foundation under 28 U.S.C. § 2409a for proceeding in the United States District Court, instead of in the Court of Claims. Rather, it is the consideration that, by filing a declaration of taking, the United States under 40 U.S.C. § 258a has obligated itself (a) without right of rescission to take the property and (b) to pay full value amounting to just compensation.1
It has been recognized by the Supreme Court that, where a seizure of property has been wrongful, as in the case of a vesting by the Alien Property Custodian of non-enemy property, the Act’s constitutionality depends on its provision for repayment of just compensation where the Custodian has liquidated the vested assets. Guessefeldt v. McGrath, 342 U.S. 308, 317-18, 72 S.Ct. 338, 343-344, 96 L.Ed. 342 (1952). The ruling, I submit, accepts the legal equality of just compensation with the property itself, and renders the Government’s title good where, as here, just compensation is guaranteed, even though the original seizure was wrongful.
The cases relied on by Judge Phillips in his arguments as to why inadequacy of notice interrupts or creates a dispute with respect to the Government’s title involve private persons not the Government, or *294they involve claims for money only, for just compensation, not assertions of a defect in title. The cases involving private persons have to do with inadequacy of notice in circumstances in which the party not given notice stands to lose his property interest altogether. Here, however, the consequences are by no means so drastic. The party deprived of notice still has his claim for just compensation, i. e., a property interest of an equivalent value in money to the value of the real estate itself.
As to the just compensation claim against the Government, its position uniquely differentiates it from any private party. Its status as the Government and its control of the money supply permit it to make and to fulfill a fundamental promise to pay just compensation which no private party, however well off, can hope to equal.
Furthermore, with respect to Judge Phillips’ concurring opinion, I diffidently suggest that we are concerned here only with ascertaining the intent of Congress not with determining a constitutional right. Even if he were right, that, constitutionally, despite the clear expression of 40 U.S.C. § 258a to the contrary, title could not be fully divested by a proceeding defective as to notice, although a declaration of taking has been filed, nevertheless, Congress obviously did not view matters that way when it enacted 28 U.S.C. § 2409a. On the contrary, Congress was manifestly proceeding on the belief that, following a declaration of taking, all title dispute was over, with ownership indefeasibly vested in the United States, and only the question of what would amount to just compensation open for discussion.2
Regardless of the rights or wrongs of Judge Phillips’ reasoning, therefore, it is clear that Congress did not believe there could be a disputed title by reason of an inadequacy of notice or other defect in the condemnation proceeding, so long as a declaration of taking had been filed obligating the Government to complete acquisition and compelling the Government to pay just compensation. It is a patently true proposition that Congress had a full right to make the type of proceeding the plaintiff has sought to institute one cognizable solely in the Court of Claims. The question is solely where Congress has, in fact, chosen to place jurisdiction. It has opted for the Court of Claims and not for the several United States District Courts (at least where the claim, as here, exceeds $10,000) with respect to the compensation question by its clear retention under 28 U.S.C. § 2409a of jurisdiction in the Court of Claims of compensation questions. The statute states: “This section does not apply . . . to or affect actions which may be or could have been brought under sections 1346, . 1491,3 or . .” Hence, even if Judge Phillips were right and a “disputed title” existed on his analysis it was not such a “disputed title” that Congress had in mind when it enacted 28 U.S.C. § 2409a. The disputed title which Judge Phillips asserts would be an altogether unintended “disputed title.” Congress fully intended that only the compensation issue would be open, see United States v. Haddon, 550 F.2d 677, 680-1, 682 (1st Cir. 1977), and for reasons so compellingly expressed by Judge Hall Congress made evident its determination, where the dispute was restricted to compensation issues, to waive sovereignty only to the extent of permitting suit in the Court of Claims.
With respect to Judge Butzner’s approach, my dissent concerns the meaning he seeks to assign to the word “lien.” I understand it to constitute an interest in property giving the holder some identifiable rights in *295the property, itself. However, merely saying that one has a lien does not make it so if there is not a basis for it, and the fact that title is indisputably vested in the Government following a declaration of taking under 40 U.S.C. § 258a cuts away all foundation for an argument that there is any basis under which the private party may claim an “interest” in the property.
It is, of course, dangerous to ascribe unarticulated motivations to other members of the Court, and especially to Judge Butzner for whose acumen and depth of legal learning I have a great respect dating back over a number of years. Nevertheless, I sense a desire to achieve an apparently fairer result by permitting the kind of suit here involved to proceed in the district court on the claimant’s home grounds, rather than requiring that he go to Washington and the Court of Claims.4 Were I to form an opinion as to wisdom, I suspect that Judge Butzner and I would find ourselves in total agreement. However, I purposely refrain from doing so, since it emphatically, under the doctrine of separation of powers, is not a judge’s function to decide what is wiser and to assume the function of Congress by “supplementing” the language of a statute when it says one thing although it would appear more prudent for it to have said another.5 There is no lien, there is no disputed title, and I respectfully suggest that the claim may be heard only in the Court of Claims.6
In my opinion, Judge Hall correctly analyzed the competing factors, and I join in his dissent.
. Cf. United States v. Sunset Cemetery Co., 132 F.2d 163, 164 (7th Cir. 1942) (“Upon the filing of the declaration of taking, title to the lands in fee simple vests in the United States and the right to just compensation for the same in the persons entitled thereto . . ., Section 258a, and that action irrevocably commits the United States to payment of the ultimate award. . . . Consequently the proceeding may not be subsequently abandoned so as to deprive the owner whose property has been taken of his constitutional right to have the damages assessed and paid in money.” (Emphasis supplied)); Chandler v. United States, 372 F.2d 276, 278-9 (10th Cir. 1967) (“The law is clear that in eminent domain cases the government, after filing a declaration of taking and depositing in court the estimated just compensation, cannot change its mind and divest itself of the title taken.”); with United States v. One Parcel of Land, 131 F.Supp. 443, 445-6 (D.D.C.1955) (“Where no declaration of taking has been filed, no judgment entered and no payment or deposit made of an award of just compensation, title has not vested in the United States and it is free to abandon the taking or reduce the estate at any time, even if it has taken possession, and be liable only for actual use and occupancy without restoration damages. ... In this type of proceeding the Government has the opportunity of determining the price of a property so that it may decide whether it exceeds the expected benefit or is more than it is prepared to pay.....The Government can then decide whether to accept or refuse at the price fixed.”). United States v. Chatham, 323 F.2d 95 (4th Cir. 1963) is not a case which has any pertinence to the issue now confronting us. Quite apart from the far more outrageous inadequacy of notice present in that case, from all that appears, the United States was claiming title on the basis of a final judgment of condemnation, not effective to divest title from the private owner until “complete,” rather than on the basis of a declaration of taking, where, upon filing, title is fully, immediately, and indefeasibly vested in the Government.
. There could in some cases, of course, be a justiciable question as to whether the taking was for a public purpose. Catlin v. United States, 324 U.S. 229, 241, 65 S.Ct. 631, 637, 89 L.Ed. 911 (1945). However, that is not an issue here since inclusion in the Cape Hatteras National Seashore, an undoubted public purpose, is conceded by the claimant.
. 28 U.S.C. § 1491: “The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress,
. It is not uncommon, of course, for judges to supply inadequacies or omissions in briefs or other submissions by the parties, in order to add certainty and completeness to exposition of the law. But there is a difference of some magnitude between citation of an authority to support a single legal proposition and the construction of an entirely novel rationale, as has been done in the instant case. The rationale was not suggested by the party who will benefit. The Government, who will be the loser, will be faced with a decision against it based on a proposition of law on which it has never had the opportunity to present its side of the matter. The new legal concepts may substantially affect condemnations in all fifty states and create manifold problems at which we cannot even guess.
I submit that, quite apart from my arguments as to why the new use of the word “lien,” by which it has been assigned a meaning directly contrary to what it has customarily meant heretofore, such a drastic step should not have been taken without allowing the Government at the very least some opportunity to defend itself, and to point out why the theory, on close examination, may not withstand close scrutiny.
It is extraordinary to see a result in which (1) a plaintiff brings action asserting a basis for removing a cloud “from plaintiff’s title,” (2) the majority agrees that plaintiff has no title, and can acquire none, (3) yet have the majority argue that a suit by plaintiff to quiet the defendant’s title may proceed on the theory that an asserted right of the plaintiff to a money judgment constitutes, somehow, an equitable lien clouding the defendant’s title. It is novel, indeed, to construe a statute purporting to create a right in the plaintiff, insofar as quieting title is concerned, as extending to a suit in no way designed to quiet plaintiff’s title.
The plaintiff’s claim was altogether on a theory rejected by the majority, namely: “that Plaintiff is the owner and is seized in fee simple of . . . that property. . . . ” Brief of Appellant, p. 4. “Plaintiff is still seized of fee simple interest in that property. . . ” Id. p. 13. “Wherefore plaintiff prays judgment that the cloud of said adverse claim of the defendant be removed from his said title to said property and that the plaintiff be declared the owner in fee simple to said property, free from the claim of the defendant, and that the plaintiff is entitled to possession of said property.” Complaint, p. 3. Nowhere in his submissions or in his oral argument was the lien theory ever even alluded to. The Government, therefore, had absolutely no occasion-indeed no true opportunity-to address it.
. Cf. Chief Justice Burger concurring in Bifulco v. United States, 447 U.S.--, -, 100 S.Ct. 2247, 2259, 65 L.Ed.2d 205 (1980):
Rather, the question before the Court is substantially more limited: what do the words of the statute mean? Of course, we must try to discern the intent of Congress. But we perform that task by beginning with the ordinary meaning of the language of the statute. Our compass is not to read a statute to reach what we perceive-or even what we think a reasonable person should perceive-is a “sensible result”; Congress must be taken at its word unless we are to assume the role of statute revisors.
. Since the claim involves more than $10,000, there is no question of concurrent district court jurisdiction. We have no occasion to address whether for a claim of $10,000 or less jurisdiction could under 28 U.S.C. § 1346(a) be entertained by the district court.