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Calendar No. 459
105th CONGRESS
2d Session
S. 2271
To simplify and expedite access to the Federal courts for injured
parties whose rights and privileges, secured by the United States
Constitution, have been deprived by final actions of Federal agencies,
or other government officials or entities acting under color of State
law, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 7, 1998
Mr. Sessions (for Mr. Hatch) introduced the following bill; which was
read the first time
July 8, 1998
Read the second time and placed on the calendar
_______________________________________________________________________
A BILL
To simplify and expedite access to the Federal courts for injured
parties whose rights and privileges, secured by the United States
Constitution, have been deprived by final actions of Federal agencies,
or other government officials or entities acting under color of State
law, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Property Rights Implementation Act
of 1998''.
SEC. 2. FINDINGS.
Congress finds that--
(1) property rights have been abrogated by the application
of laws, regulations, and other actions by all levels of
government that adversely affect the value and the ability to
make reasonable use of private property;
(2) certain provisions of sections 1346 and 1402 and
chapter 91 of title 28, United States Code (commonly known as
the Tucker Act), that delineate the jurisdiction of courts
hearing property rights claims, frustrate the ability of a
property owner to obtain full relief for violation founded upon
the fifth and fourteenth amendments of the United States
Constitution;
(3) current law--
(A) has no sound basis for splitting jurisdiction
between two courts in cases where constitutionally
protected property rights are at stake;
(B) adds to the complexity and cost of takings and
litigation, adversely affecting taxpayers and property
owners;
(C) forces a property owner, who seeks just
compensation from the Federal Government, to elect
between equitable relief in the district court and
monetary relief (the value of the property taken) in
the United States Court of Federal Claims;
(D) is used to urge dismissal in the district court
in complaints against the Federal Government, on the
ground that the plaintiff should seek just compensation
in the Court of Federal Claims;
(E) is used to urge dismissal in the Court of
Federal Claims in complaints against the Federal
Government, on the ground that the plaintiff should
seek equitable relief in district court; and
(F) forces a property owner to first pay to
litigate an action in a State court, before a Federal
judge can decide whether local government has denied
property rights safeguarded by the United States
Constitution;
(4) property owners cannot fully vindicate property rights
in one lawsuit and their claims may be time barred in a
subsequent action;
(5) property owners should be able to fully recover for a
taking of their private property in one court;
(6) certain provisions of section 1346 and 1402 and chapter
91 of title 28, United States Code (commonly known as the
Tucker Act) should be amended, giving both the district courts
of the United States and the Court of Federal Claims
jurisdiction to hear all claims relating to property rights in
complaints against the Federal Government;
(7) section 1500 of title 28, United States Code, which
denies the Court of Federal Claims jurisdiction to entertain a
suit which is pending in another court and made by the same
plaintiff, should be repealed;
(8) Federal and local authorities, through complex, costly,
repetitive and unconstitutional permitting, variance, and
licensing procedures, have denied property owners their fifth
and fourteenth amendment rights under the United States
Constitution to the use, enjoyment, and disposition of, and
exclusion of others from, their property, and to safeguard
those rights, there is a need to determine what constitutes a
final decision of an agency in order to allow claimants the
ability to protect their property rights in a court of law;
(9) a Federal judge should decide the merits of cases where
a property owner seeks redress solely for infringements of
rights safeguarded by the United States Constitution, and where
no claim of a violation of State law is alleged; and
(10) certain provisions of sections 1343, 1346, and 1491 of
title 28, United States Code, should be amended to clarify when
a claim for redress of constitutionally protected property
rights is sufficiently ripe so a Federal judge may decide the
merits of the allegations.
SEC. 3. PURPOSES.
The purposes of this Act are to--
(1) establish a clear, uniform, and efficient judicial
process whereby aggrieved property owners can obtain
vindication of property rights guaranteed by the fifth and
fourteenth amendments to the United States Constitution and
this Act;
(2) amend the Tucker Act, including the repeal of section
1500 of title 28, United States Code;
(3) rectify the unduly onerous and expensive requirement
that an owner of real property, seeking redress under section
1979 of the Revised Statutes of the United States (42 U.S.C.
1983) for the infringement of property rights protected by the
fifth and fourteenth amendments of the United States
Constitution, is required to first litigate Federal
constitutional issues in a State court before obtaining access
to the Federal courts;
(4) provide for uniformity in the application of the
ripeness doctrine in cases where constitutional rights to use
and enjoy real property are allegedly infringed, by providing
that a final agency decision may be adjudicated by a Federal
court on the merits after--
(A) the pertinent government body denies a
meaningful application to develop the land in question;
and
(B)(i) the property owner seeks a waiver by or
brings an appeal to an administrative agency from such
denial; and
(ii) such waiver or appeal is not approved; and
(5) confirm the proper role of a State or territory to
prevent land uses that are a nuisance under applicable law.
SEC. 4. DEFINITIONS.
In this Act, the term--
(1) ``agency action'' means any action, inaction, or
decision taken by a Federal agency or other government agency
that at the time of such action, inaction, or decision
adversely affects private property rights;
(2) ``district court''--
(A) means a district court of the United States
with appropriate jurisdiction; and
(B) includes the United States District Court of
Guam, the United States District Court of the Virgin
Islands, or the District Court for the Northern Mariana
Islands;
(3) ``Federal agency'' means a department, agency,
independent agency, or instrumentality of the United States,
including any military department, Government corporation,
Government-controlled corporation, or other establishment in
the executive branch of the United States Government;
(4) ``owner'' means the owner or possessor of property or
rights in property at the time the taking occurs, including
when--
(A) the statute, regulation, rule, order,
guideline, policy, or action is passed or promulgated;
or
(B) the permit, license, authorization, or
governmental permission is denied or suspended;
(5) ``private property'' or ``property'' means all
interests constituting property, as defined by Federal or State
law, protected under the fifth and fourteenth amendments to the
United States Constitution; and
(6) ``taking of private property'', ``taking'', or ``take''
means any action whereby restricting the ownership,
alienability, possession, or use of private property is an
object of that action and is taken so as to require
compensation under the fifth amendment to the United States
Constitution, including by physical invasion, regulation,
exaction, condition, or other means.
SEC. 5. PRIVATE PROPERTY ACTIONS.
(a) In General.--An owner may file a civil action under this
section to challenge the validity of any Federal agency action as a
violation of the fifth amendment to the United States Constitution in a
district court or the United States Court of Federal Claims.
(b) Concurrent Jurisdiction.--Notwithstanding any other provision
of law and notwithstanding the issues involved, the relief sought, or
the amount in controversy, the district court and the United States
Court of Federal Claims shall each have concurrent jurisdiction over
both claims for monetary relief and claims seeking invalidation of any
Act of Congress or any regulation of a Federal agency affecting private
property rights.
(c) Election.--The plaintiff may elect to file an action under this
section in a district court or the United States Court of Federal
Claims.
(d) Waiver of Sovereign Immunity.--This section constitutes express
waiver of the sovereign immunity of the United States with respect to
an action filed under this section.
(e) Appeals.--The United States Court of Appeals for the Federal
Circuit shall have exclusive jurisdiction of any action filed under
this section, regardless of whether the jurisdiction of such action is
based in whole or part under this section.
(f) Statute of Limitations.--The statute of limitations for any
action filed under this section shall be 6 years after the date of the
taking of private property.
(g) Attorneys' Fees and Costs.--In issuing any final order in any
action filed under this section, the court may award costs of
litigation (including reasonable attorneys' fees) to any prevailing
plaintiff.
SEC. 6. JURISDICTION OF UNITED STATES COURT OF FEDERAL CLAIMS AND
UNITED STATES DISTRICT COURTS.
(a) United States Court of Federal Claims.--
(1) Jurisdiction.--Section 1491(a) of title 28, United
States Code, is amended--
(A) in paragraph (1) by amending the first sentence
to read as follows: ``The United States Court of
Federal Claims shall have jurisdiction to render
judgment upon any claim against the United States for
monetary relief founded either upon the Constitution or
any Act of Congress or any regulation of an executive
department or upon any express or implied contract with
the United States, in cases not sounding in tort, or
for invalidation of any Act of Congress or any
regulation of an executive department under section 5
of the Citizens Access to Justice Act of 1998.'';
(B) in paragraph (2) by inserting before the first
sentence the following: ``In any case within its
jurisdiction, the Court of Federal Claims shall have
the power to grant injunctive and declaratory relief
when appropriate.''; and
(C) by adding at the end the following new
paragraphs:
``(3) In cases otherwise within its jurisdiction, the Court
of Federal Claims shall also have supplemental jurisdiction,
concurrent with the courts designated under section 1346(b), to
render judgment upon any related tort claim authorized under
section 2674.
``(4) In proceedings within the jurisdiction of the Court
of Federal Claims which constitute judicial review of agency
action (rather than de novo proceedings), the provisions of
section 706 of title 5 shall apply.
``(5)(A) Any claim brought under this subsection founded
upon a constitutional right to use and enjoy real property, but
allegedly infringed or taken by the United States, shall be
ripe for adjudication upon a final decision rendered by the
United States, that causes actual and concrete injury to the
party seeking redress.
``(B) For purposes of this paragraph, a final decision
exists if--
``(i) the United States makes a definitive decision
regarding the extent of permissible uses on real
property that has been allegedly infringed or taken;
and
``(ii) one meaningful application to use the
property has been submitted but has not been approved
within a reasonable time, and the party seeking redress
has applied for one appeal or waiver which has not been
approved within a reasonable time, where the applicable
law of the United States provides a mechanism for
appeal or waiver.
``(C)(i) The party seeking redress shall not be required to
submit any application or reapplication, or apply for any
appeal or waiver required under this section, if the district
court determines that such action would be futile.
``(ii) In this subparagraph, the term `futile' means the
inability of an owner of real property to seek or obtain
approvals to use such real property, and the hardship endured
by such inability, as defined under applicable land use and
environmental law.
``(D) Nothing in this paragraph alters the substantive law
of takings of property, including the burden of proof borne by
the plaintiff.''.
(2) Pendency of claims in other courts.--
(A) In general.--Section 1500 of title 28, United
States Code is repealed.
(B) Technical and conforming amendment.--The table
of sections for chapter 91 of title 28, United States
Code, is amended by striking out the item relating to section 1500.
(b) District Court Jurisdiction.--
(1) Citizen access to justice action.--Section 1346(a) of
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