II

106TH CONGRESS

1ST SESSION S. 1028

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

MAY 13, 1999

Mr. HATCH introduced the following bill; which was read twice and referred

to the Committee on the Judiciary

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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Citizens Access to Jus5 tice Act of 1999’’.
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1 SEC. 2. FINDINGS.

2 Congress finds that—

3 (1) property rights have been abrogated by the

4 application of laws, regulations, and other actions by

5 all levels of government that adversely affect the

6 value and the ability to make reasonable use of pri7 vate property;

8 (2) certain provisions of sections 1346 and

9 1402 and chapter 91 of title 28, United States Code

10 (commonly known as the Tucker Act), that delineate

11 the jurisdiction of courts hearing property rights

12 claims, frustrate the ability of a property owner to

13 obtain full relief for violation founded upon the fifth

14 and fourteenth amendments of the United States

15 Constitution;

16 (3) current law—

17 (A) has no sound basis for splitting juris18 diction between two courts in cases where con19 stitutionally protected property rights are at

20 stake;

21 (B) adds to the complexity and cost of

22 takings and litigation, adversely affecting tax23 payers and property owners;

24 (C) forces a property owner, who seeks

25 just compensation from the Federal Govern26 ment, to elect between equitable relief in the
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1 district court and monetary relief (the value of

2 the property taken) in the United States Court

3 of Federal Claims;

4 (D) is used to urge dismissal in the district

5 court in complaints against the Federal Govern6 ment, on the ground that the plaintiff should

7 seek just compensation in the Court of Federal

8 Claims;

9 (E) is used to urge dismissal in the Court

10 of Federal Claims in complaints against the

11 Federal Government, on the ground that the

12 plaintiff should seek equitable relief in district

13 court; and

14 (F) forces a property owner to first pay to

15 litigate an action in a State court, before a

16 Federal judge can decide whether local govern17 ment has denied property rights safeguarded by

18 the United States Constitution;

19 (4) property owners cannot fully vindicate prop20 erty rights in one lawsuit and their claims may be

21 time barred in a subsequent action;

22 (5) property owners should be able to fully re23 cover for a taking of their private property in one

24 court;
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1 (6) certain provisions of section 1346 and 1402

2 and chapter 91 of title 28, United States Code (com3 monly known as the Tucker Act) should be amend4 ed, giving both the district courts of the United

5 States and the Court of Federal Claims jurisdiction

6 to hear all claims relating to property rights in com7 plaints against the Federal Government;

8 (7) section 1500 of title 28, United States

9 Code, which denies the Court of Federal Claims ju10 risdiction to entertain a suit which is pending in an11 other court and made by the same plaintiff, should

12 be repealed;

13 (8) Federal and local authorities, through com14 plex, costly, repetitive and unconstitutional permit15 ting, variance, and licensing procedures, have denied

16 property owners their fifth and fourteenth amend17 ment rights under the United States Constitution to

18 the use, enjoyment, and disposition of, and exclusion

19 of others from, their property, and to safeguard

20 those rights, there is a need to determine what con21 stitutes a final decision of an agency in order to

22 allow claimants the ability to protect their property

23 rights in a court of law;

24 (9) a Federal judge should decide the merits of

25 cases where a property owner seeks redress solely for
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1 infringements of rights safeguarded by the United

2 States Constitution, and where no claim of a viola3 tion of State law is alleged; and

4 (10) certain provisions of sections 1343, 1346,

5 and 1491 of title 28, United States Code, should be

6 amended to clarify when a claim for redress of con7 stitutionally protected property rights is sufficiently

8 ripe so a Federal judge may decide the merits of the

9 allegations.

10 SEC. 3. PURPOSES.

11 The purposes of this Act are to—

12 (1) establish a clear, uniform, and efficient ju13 dicial process whereby aggrieved property owners

14 can obtain vindication of property rights guaranteed

15 by the fifth and fourteenth amendments to the

16 United States Constitution and this Act;

17 (2) amend the Tucker Act, including the repeal

18 of section 1500 of title 28, United States Code;

19 (3) rectify the unduly onerous and expensive re20 quirement that an owner of real property, seeking

21 redress under section 1979 of the Revised Statutes

22 of the United States (42 U.S.C. 1983) for the in23 fringement of property rights protected by the fifth

24 and fourteenth amendments of the United States

25 Constitution, is required to first litigate Federal con-
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1 stitutional issues in a State court before obtaining

2 access to the Federal courts;

3 (4) provide for uniformity in the application of

4 the ripeness doctrine in cases where constitutional

5 rights to use and enjoy real property are allegedly

6 infringed, by providing that a final agency decision

7 may be adjudicated by a Federal court on the merits

8 after—

9 (A) the pertinent government body denies

10 a meaningful application to develop the land in

11 question; and

12 (B)(i) the property owner seeks available

13 waivers and administrative appeals from such

14 denial; and

15 (ii) such waiver or appeal is not approved;

16 and

17 (5) confirm the proper role of a State or terri18 tory to prevent land uses that are a nuisance under

19 applicable law.

20 SEC. 4. DEFINITIONS.

21 In this Act, the term—

22 (1) ‘‘agency action’’ means any action, inaction,

23 or decision taken by a Federal agency or other gov24 ernment agency that at the time of such action, in-
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1 action, or decision adversely affects private property

2 rights;

3 (2) ‘‘district court’’—

4 (A) means a district court of the United

5 States with appropriate jurisdiction; and

6 (B) includes the United States District

7 Court of Guam, the United States District

8 Court of the Virgin Islands, or the District

9 Court for the Northern Mariana Islands;

10 (3) ‘‘Federal agency’’ means a department,

11 agency, independent agency, or instrumentality of

12 the United States, including any military depart13 ment, Government corporation, Government-con14 trolled corporation, or other establishment in the ex15 ecutive branch of the United States Government;

16 (4) ‘‘owner’’ means the owner or possessor of

17 property or rights in property at the time the taking

18 occurs, including when—

19 (A) the statute, regulation, rule, order,

20 guideline, policy, or action is passed or promul21 gated; or

22 (B) the permit, license, authorization, or

23 governmental permission is denied or sus24 pended;
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1 (5) ‘‘private property’’ or ‘‘property’’ means all

2 interests constituting property, as defined by Fed3 eral or State law, protected under the fifth and four4 teenth amendments to the United States Constitu5 tion; and

6 (6) ‘‘taking of private property’’, ‘‘taking’’, or

7 ‘‘take’’ means any action whereby restricting the

8 ownership, alienability, possession, or use of private

9 property is an object of that action and is taken so

10 as to require compensation under the fifth amend11 ment to the United States Constitution, including by

12 physical invasion, regulation, exaction, condition, or

13 other means.

14 SEC. 5. PRIVATE PROPERTY ACTIONS.

15 (a) IN GENERAL.—An owner may file a civil action

16 under this section to challenge the validity of any Federal

17 agency action as a violation of the fifth amendment to the

18 United States Constitution in a district court or the

19 United States Court of Federal Claims.

20 (b) CONCURRENT JURISDICTION.—Notwithstanding

21 any other provision of law and notwithstanding the issues

22 involved, the relief sought, or the amount in controversy,

23 the district court and the United States Court of Federal

24 Claims shall each have concurrent jurisdiction over both

25 claims for monetary relief and claims seeking invalidation
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1 of any Act of Congress or any regulation of a Federal

2 agency affecting private property rights.

3 (c) ELECTION.—The plaintiff may elect to file an ac4 tion under this section in a district court or the United

5 States Court of Federal Claims.

6 (d) WAIVER OF SOVEREIGN IMMUNITY.—This section

7 constitutes express waiver of the sovereign immunity of

8 the United States with respect to an action filed under

9 this section.

10 (e) APPEALS.—The United States Court of Appeals

11 for the Federal Circuit shall have exclusive jurisdiction of

12 any action filed under this section, regardless of whether

13 the jurisdiction of such action is based in whole or part

14 under this section.

15 (f) STATUTE OF LIMITATIONS.—The statute of limi16 tations for any action filed under this section shall be 6

17 years after the date of the taking of private property.

18 (g) ATTORNEYS’ FEES AND COSTS.—In issuing any

19 final order in any action filed under this section, the court

20 may award costs of litigation (including reasonable attor21 neys’ fees) to any prevailing plaintiff.

22 SEC. 6. JURISDICTION OF UNITED STATES COURT OF FED23 ERAL CLAIMS AND UNITED STATES DISTRICT

24 COURTS.

25 (a) UNITED STATES COURT OF FEDERAL CLAIMS.—
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1 (1) JURISDICTION.—Section 1491(a) of title

2 28, United States Code, is amended—

3 (A) in paragraph (1) by amending the first

4 sentence to read as follows: ‘‘The United States

5 Court of Federal Claims shall have jurisdiction

6 to render judgment upon any claim against the

7 United States for monetary relief founded ei8 ther upon the Constitution or any Act of Con9 gress or any regulation of an executive depart10 ment or upon any express or implied contract

11 with the United States, in cases not sounding

12 in tort, or for invalidation of any Act of Con13 gress or any regulation of an executive depart14 ment under section 5 of the Citizens Access to

15 Justice Act of 1999.’’;

16 (B) in paragraph (2) by inserting before

17 the first sentence the following: ‘‘In any case

18 within its jurisdiction, the Court of Federal

19 Claims shall have the power to grant injunctive

20 and declaratory relief when appropriate.’’; and

21 (C) by adding at the end the following new

22 paragraphs:

23 ‘‘(3) In cases otherwise within its jurisdiction,

24 the Court of Federal Claims shall also have supple25 mental jurisdiction, concurrent with the courts des-
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1 ignated under section 1346(b), to render judgment

2 upon any related tort claim authorized under section

3 2674.

4 ‘‘(4) In proceedings within the jurisdiction of

5 the Court of Federal Claims which constitute judi6 cial review of agency action (rather than de novo

7 proceedings), the provisions of section 706 of title 5

8 shall apply.

9 ‘‘(5)(A) Any claim brought under this sub10 section to redress the deprivation of a right or privi11 lege to use and enjoy real property as secured by the

12 Constitution, shall be ripe for adjudication upon a

13 final decision rendered by the United States, that

14 causes actual and concrete injury to the party seek15 ing redress.

16 ‘‘(B) For purposes of this paragraph, a final

17 decision exists if—

18 ‘‘(i) the United States makes a definitive

19 decision regarding the extent of permissible

20 uses on real property that has been allegedly in21 fringed or taken; and

22 ‘‘(ii) one meaningful application as defined

23 by applicable law to use the property has been

24 submitted but has not been approved within a

25 reasonable time, and the party seeking redress
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1 has applied for one appeal and one waiver

2 which has not been approved within a reason3 able time, where the applicable law of the

4 United States provides a mechanism for appeal

5 to or waiver by an administrative agency.

6 ‘‘(C)(i) The party seeking redress shall not be

7 required to submit any application or apply for any

8 appeal or waiver required under this section, if the

9 district court determines that such action would be

10 futile.

11 ‘‘(ii) In this subparagraph, the term ‘futile’

12 means the inability of an owner of real property to

13 seek or obtain approvals to use such real property,

14 and the hardship endured by such inability, as de15 fined under applicable land use, zoning, and plan16 ning law.

17 ‘‘(D) Nothing in this paragraph alters the sub18 stantive law of takings of property, including the

19 burden of proof borne by the plaintiff.’’.

20 (2) PENDENCY OF CLAIMS IN OTHER

21 COURTS.—

22 (A) IN GENERAL.—Section 1500 of title

23 28, United States Code is repealed.

24 (B) TECHNICAL AND CONFORMING AMEND25 MENT.—The table of sections for chapter 91 of
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1 title 28, United States Code, is amended by

2 striking out the item relating to section 1500.

3 (b) DISTRICT COURT JURISDICTION.—

4 (1) CITIZEN ACCESS TO JUSTICE ACTION.—Sec5 tion 1346(a) of title 28, United States Code, is

6 amended by adding after paragraph (2) the fol7 lowing:

8 ‘‘(3) Any civil action filed under section 5 of the

9 Citizens Access to Justice Act of 1999.’’.

10 (2) UNITED STATES AS DEFENDANT.—Section

11 1346 of title 28, United States Code, is amended by

12 adding at the end the following:

13 ‘‘(h)(1) Any claim brought under subsection (a) to

14 redress the deprivation of a right or privilege to use and

15 enjoy real property as secured by the Constitution shall

16 be ripe for adjudication upon a final decision rendered by

17 the United States, that causes actual and concrete injury

18 to the party seeking redress.

19 ‘‘(2)(A) For purposes of this subsection, a final deci20 sion exists if—

21 ‘‘(i) the United States makes a definitive deci22 sion regarding the extent of permissible uses on the

23 property that has been allegedly infringed or taken;

24 and
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1 ‘‘(ii) one meaningful application as defined by

2 applicable law to use the property has been sub3 mitted but has not been approved within a reason4 able time, and the party seeking redress has applied

5 for one appeal and one waiver which has not been

6 approved within a reasonable time, where the appli7 cable law of the United States provides a mechanism

8 for appeal to or waiver by an administrative agency.

9 ‘‘(B)(i) The party seeking redress shall not be re10 quired to submit any application or apply for any appeal

11 or waiver required under this section, if the district court

12 determines that such action would be futile.

13 ‘‘(ii) In this subparagraph, the term ‘futile’ means

14 the inability of an owner of real property to seek or obtain

15 approvals to use such real property, and the hardship en16 dured by such inability, as defined under applicable land

17 use, zoning, and planning law.

18 ‘‘(3) Nothing in this subsection alters the substantive

19 law of takings of property, including the burden of proof

20 borne by the plaintiff.’’.

21 (c) DISTRICT COURT CIVIL RIGHTS JURISDICTION;

22 ABSTENTION.—Section 1343 of title 28, United States

23 Code, is amending by adding at the end the following:
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1 ‘‘(c) Whenever a district court exercises jurisdiction

2 under subsection (a), the court shall not abstain from or

3 relinquish jurisdiction to a State court in an action if—

4 ‘‘(1) no claim of a violation of a State law or

5 privilege is alleged; and

6 ‘‘(2) a parallel proceeding in State court arising

7 out of the same core of operative facts as the district

8 court proceeding is not pending.

9 ‘‘(d) A district court that exercises jurisdiction under

10 subsection (a) in an action in which the operative facts

11 concern the uses of real property may abstain where the

12 party seeking redress—

13 ‘‘(1) has not submitted a meaningful applica14 tion, as defined by applicable law, to use such real

15 property; and

16 ‘‘(2) challenges whether an action of the appli17 cable locality exceeds the authority conferred upon

18 the locality under the applicable zoning or planning

19 enabling statute of the State or territory.

20 ‘‘(e)(1) Where the district court has jurisdiction over

21 an action under subsection (a) in which the operative facts

22 concern the uses of real property and which cannot be de23 cided without resolution of an unsettled question of State

24 law, the district court may certify the question of State

25 law to the highest appellate court of that State. After the
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1 State appellate court resolves the question certified to it,

2 the district court shall proceed with resolving the merits.

3 ‘‘(2) In making a decision whether to certify a ques4 tion of State law under this subsection, the district court

5 may consider whether the question of State law—

6 ‘‘(A) will significantly affect the merits of the

7 injured party’s Federal claim; and

8 ‘‘(B) is patently unclear.

9 ‘‘(f)(1) Any claim or action brought under section

10 1979 of the Revised Statutes of the United States (42

11 U.S.C. 1983) to redress the deprivation of a right or privi12 lege to use and enjoy real property as secured by the Con13 stitution shall be ripe for adjudication by the district

14 courts upon a final decision rendered by any person acting

15 under color of any statute, ordinance, regulation, custom,

16 or usage, of any State or territory of the United States,

17 that causes actual and concrete injury to the party seeking

18 redress.

19 ‘‘(2)(A) For purposes of this subsection, a final deci20 sion exists if—

21 ‘‘(i) any person acting under color of any stat22 ute, ordinance, regulation, custom, or usage, of any

23 State or territory of the United States, makes a de24 finitive decision regarding the extent of permissible
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1 uses on the property that has been allegedly in2 fringed or taken;

3 ‘‘(ii)(I) one meaningful application, as defined

4 by applicable law to use the property has been sub5 mitted but has not been approved within a reason6 able time, and the party seeking redress has applied

7 for one appeal or waiver which has not been ap8 proved within a reasonable time, where the applica9 ble statute, ordinance, custom, or usage provides a

10 mechanism for appeal to or waiver by an administra11 tive agency; or

12 ‘‘(II) one meaningful application, as defined by

13 applicable law, to use the property has been sub14 mitted but has not been approved within a reason15 able time, and the disapproval at a minimum speci16 fies in writing the range of use, density, or intensity

17 of development of the property that would be ap18 proved, with any conditions therefor, and the party

19 seeking redress has resubmitted another meaningful

20 application taking into account the terms of the dis21 approval, except that—

22 ‘‘(aa) if no such reapplication is submitted,

23 then a final decision shall not have been

24 reached for purposes of this subsection, except

25 as provided in subparagraph (B); and
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1 ‘‘(bb) if the reapplication is not approved

2 within a reasonable time, or if the reapplication

3 is not required under subparagraph (B), then a

4 final decision exists for purposes of this sub5 section if the party seeking redress has applied

6 for one appeal or waiver with respect to the dis7 approval, which has not been approved within a

8 reasonable time, where the applicable statute,

9 ordinance, custom, or usage provides a mecha10 nism of appeal or waiver by an administrative

11 agency; and

12 ‘‘(iii) in a case involving the uses of real prop13 erty, where the applicable statute or ordinance pro14 vides for review of the case by elected officials, the

15 party seeking redress has applied for but is denied

16 such review.

17 ‘‘(B)(i) The party seeking redress shall not be re18 quired to submit any application or reapplication, or apply

19 for any appeal or waiver as required under this subsection,

20 upon determination by the district court that such action

21 would be futile.

22 ‘‘(ii) In this subparagraph, the term ‘futile’ means

23 the inability of an owner of real property to seek or obtain

24 approvals to use such real property, and the hardship en-
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1 dured by such inability, as defined under applicable land

2 use, zoning, and planning law.

3 ‘‘(3) For purposes of this subsection, a final decision

4 shall not require the party seeking redress to exhaust judi5 cial remedies provided by any State or territory of the

6 United States.

7 ‘‘(g) Nothing in subsection (c), (d), (e), or (f) alters

8 the substantive law of takings of property, including the

9 burden of proof borne by the plaintiff.’’.

10 SEC. 7. ATTORNEYS FEES FOR LOCALITIES.

11 Section 722(b) of the Revised Statutes (42 U.S.C.

12 1988(b)) is amended—

13 (1) by striking ‘‘In any action’’ and inserting

14 ‘‘(1) Subject to paragraphs (2) and (3), in any ac15 tion’’; and

16 (2) by adding at the end the following:

17 ‘‘(2) In an action arising under section 1979 of

18 the Revised Statutes (42 U.S.C. 1983), where the

19 taking of real property is alleged, a district court, in

20 its discretion, may hold the party seeking redress

21 liable for a reasonable attorney’s fee and costs where

22 the takings claim is not substantially justified, un23 less special circumstances make an award of such

24 fees unjust. Whether or not the position of the party

25 seeking redress was substantially justified shall be
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1 determined on the basis of any administrative and

2 judicial record, as a whole, which is made in the dis3 trict court adjudication for which fees and other ex4 penses are sought.

5 ‘‘(3) In an action arising under section 1979 of

6 the Revised Statutes (42 U.S.C. 1983) where the

7 taking of real property is alleged, the district court

8 shall decide any motion to dismiss such claim on an

9 expedited basis. Where such a motion is granted and

10 the takings claim is dismissed with prejudice, the

11 non-moving party may be liable for a reasonable at12 torney’s fee and costs at the discretion of the district

13 court, unless special circumstances make an award

14 of such fees unjust.’’.

15 SEC. 8. DUTY OF NOTICE TO DEFENDANTS.

16 Section 1979 of the Revised Statutes (42 U.S.C.

17 1983) is amended—

18 (1) by inserting ‘‘(a)’’ before ‘‘Every person’’;

19 and

20 (2) by adding at the end the following:

21 ‘‘(b) A party seeking redress under this section for

22 a taking of real property without the payment of com23 pensation shall not commence an action in district court

24 before 60 days after the date on which written notice has

25 been given to any potential defendant.’’.
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1 SEC. 9. DUTY OF NOTICE TO OWNERS.

2 Whenever a Federal agency takes an agency action

3 limiting the use of private property that may be affected

4 by this Act (including the amendments made by this Act),

5 the agency shall give notice to the owners of that property

6 explaining their rights under this Act and the procedures

7 for obtaining any compensation that may be due to them

8 under this Act.

9 SEC. 10. RULES OF CONSTRUCTION.

10 Nothing in this Act shall be construed to interfere

11 with the authority of any State to create additional prop12 erty rights.

13 SEC. 11. EFFECTIVE DATE.

14 This Act shall take effect on the date of enactment

15 of this Act and shall apply to any agency action that oc16 curs on or after such date.

Æ