99–007

107TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 107–444

REFERRAL OF H.R. 1258

MAY 7, 2002.—Referred to the Private Calendar and ordered to be printed

Mr. SENSENBRENNER, from the Committee on the Judiciary,

submitted the following

R E P O R T

[To accompany H. Res. 103]

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the

resolution (H. Res. 103) referring the bill (H.R. 1258), entitled ‘‘A

bill for the relief of Sarabeth M. Davis, Robert S. Borders, Victor

Maron, Irving Berke, and Adele E. Conrad’’, to the chief judge of

the United States Court of Federal Claims for a report thereon,

having considered the same, reports favorably thereon without

amendment and recommends that the resolution be agreed to.

CONTENTS

Page

Purpose and Summary ............................................................................................ 1

Background and Need for the Legislation ............................................................. 1

Hearings ................................................................................................................... 2

Committee Consideration ........................................................................................ 2

Committee Oversight Findings ............................................................................... 3

Performance Goals and Objectives ......................................................................... 3

New Budget Authority and Tax Expenditures ...................................................... 3

Congressional Budget Office Cost Estimate .......................................................... 3

Constitutional Authority Statement ...................................................................... 4

Agency Views ........................................................................................................... 5

Markup Transcript .................................................................................................. 6

PURPOSE AND SUMMARY

The resolution would refer H.R. 1258 to the U.S. Court of Federal Claims for an evaluation of this claim as well as a determination of any amount of appropriate compensation.

BACKGROUND AND NEED FOR THE LEGISLATION

In 1976, the Los Caballeros Center partnership bought 9 acres

of property adjacent to the U.S. Army’s Los Alamitos, California reVerDate 11-MAY-2000 07:57 May 08, 2002 Jkt 099007 PO 00000 Frm 00001 Fmt 6659 Sfmt 6601 E:\HR\OC\HR444.XXX pfrm11 PsN: HR444
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serve center. In 1980, with the approval of the U.S. Army and the

City of Los Alamitos, the land was developed. In November 1989,

the partnership agreed to sell the property to Grace Church for

$14.7 million. On February 12, 1990, 2 days before the closing of

escrow, the Army informed the City Council that part of the property was now in the Army’s proposed new ‘‘Clear Zone’’—the area

around the base that the military recommends local governments

keep free from any development to ensure the safety of aircraft operations. Later that year, it was clarified that the property was not

in the Clear Zone at that time, but a preliminary study recommended the property be included in the Clear Zone. Four years

later, the Army finally issued a new Clear Zone plan which excluded the property from any restriction on commercial development. Unfortunately, because of the Army’s delay of 4 years on a

decision and the City Council’s refusal to allow any rezoning of the

property, the partnership was forced into financial ruin. In May

1992, the partnership was forced to file Chapter 11 bankruptcy. Finally, in August 1995, the partnership lost the property to foreclosure. In 1996, the partnership estimated their losses at $21 million. The five claimants covered by the bill and resolution are now

elderly and have lost what would have provided for their retirement.

The partnership initially pursued a claim against the Federal

Government under the Federal Tort Claims Act. The Army denied

the claim stating that the claim was a taking of private property

rather than a tort claim. They advised the partnership to file a

takings claim under the Tucker Act. Per Army instructions, the

partnership filed a takings claim in August 1995. However, in June

1996, when the case came before the Court of Federal Claims, the

Justice Department (representing the Department of the Army) argued successfully that the claim was not a takings claim, but a tort

claim. By then, the time limit on the partnership’s ability to file an

appeal of the Federal Tort Claims Act denial by the Department

of the Army had expired.

In its decision, the Court of Federal Claims dismissed the case

on jurisdictional grounds, yet felt compelled to express it’s sympathy for the partnership stating ‘‘The procedural history of this

case shows that the military effectively mislead [sic] plaintiffs in

this matter . . . Congress did not intend those jurisdictional limits

to be manipulated to prevent a claimant from recovering compensation against the Government.’’

In a July 21, 2000, letter from the Department of the Army, Secretary Caldera stated ‘‘I regrettably conclude that I am unable to

provide any relief to the claimants under existing law. Particularly

in view of the Court of Federal Claims decision regarding this matter, however, I believe this may be an instance where private relief

legislation is appropriate.’’

HEARINGS

No hearings were held on H. Res. 103.

COMMITTEE CONSIDERATION

On November 1, 2001, the Subcommittee on Immigration and

Claims met in open session and ordered favorably reported the resVerDate 11-MAY-2000 07:57 May 08, 2002 Jkt 099007 PO 00000 Frm 00002 Fmt 6659 Sfmt 6601 E:\HR\OC\HR444.XXX pfrm11 PsN: HR444
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olution H. Res. 103 by voice vote, a quorum being present. On April

24, 2002, the Committee met in open session and ordered favorably

reported the resolution H. Res. 103 without amendment by voice

vote, a quorum being present.

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the

House of Representatives, the Committee reports that the findings

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report.

PERFORMANCE GOALS AND OBJECTIVES

H. Res. 103 does not authorize funding. Therefore, clause 3(c) of

rule XIII of the Rules of the House of Representatives is inapplicable.

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of House rule XIII is inapplicable because this legislation does not provide new budgetary authority or increased tax

expenditures.

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of rule XIII of the Rules of the

House of Representatives, the Committee sets forth, with respect to

the resolution, H. Res. 103, the following estimate and comparison

prepared by the Director of the Congressional Budget Office under

section 402 of the Congressional Budget Act of 1974:

U.S. CONGRESS,

CONGRESSIONAL BUDGET OFFICE,

Washington, DC, April 29, 2002.

Hon. F. JAMES SENSENBRENNER, Jr., Chairman,

Committee on the Judiciary,

House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H. Res. 103, a resolution referring the bill (H.R. 1258) entitled ‘‘A bill for the relief of Sarabeth

M. Davis, Robert S. Borders, Victor Maron, Irving Berke, and Adele

E. Conrad,’’ to the chief judge of the United States Court of Federal

Claims for a report thereon.

If you wish further details on this estimate, we will be pleased

to provide them. The CBO staff contact is Deborah Reis, who can

be reached at 226–2860.

Sincerely,

DAN L. CRIPPEN, Director.

Enclosure

cc: Honorable John Conyers, Jr.

Ranking Member

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H. Res. 103—A resolution referring the bill (H.R. 1258), entitled ‘‘A

bill for the relief of Sarabeth M. Davis, Robert S. Borders, Victor Maron, Irving Berke, and Adele E. Conrad,’’ to the chief

judge of the United States Court of Federal Claims for a report

thereon.

H. Res. 103 would refer H.R. 1258, a private relief bill introduced

in the House of Representatives on March 27, 2002, to the chief

judge of the United States Court of Federal Claims. The chief judge

would then report to the Congress on the court’s findings of fact

and conclusions of law regarding the claims addressed in H.R.

1258, along with the amount, if any, legally or equitably due to the

claimants.

CBO estimates that H. Res. 103 would have no significant impact on the Federal budget. Payment to the claimants of any

amount based on the report of the Court of Federal Claims would

depend on further Congressional action. The resolution would not

affect receipts or direct spending; therefore, pay-as-you-go procedures would not apply.

The CBO staff contact for this estimate is Deborah Reis, who can

be reached at 226–2860. This estimate was approved by Peter H.

Fontaine, Deputy Assistant Director for Budget Analysis.

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House

of Representatives, the Committee finds the authority for this legislation in article 1, section 8 of the Constitution.

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AGENCY VIEWS

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MARKUP TRANSCRIPT

BUSINESS MEETING

WEDNESDAY, APRIL 24, 2002

HOUSE OF REPRESENTATIVES,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The Committee met, pursuant to notice, at 10:09 a.m., in Room

2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr. [Chairman of the Committee] presiding.

Chairman SENSENBRENNER. [Presiding.] The Committee will be

in order.

[Intervening business.]

Chairman SENSENBRENNER. Okay. The next item on the agenda

is the adoption of H.R. 486 for the relief of Barbara Makuch, H.R.

487 for the relief of Eugene Makuch, and H. Res. 103 referring the

bill H.R. 1258 to the chief judge of the U.S. Court of Federal

Claims for a report thereon. Without objection, the bills will be considered en bloc.

[The resolution, H. Res. 103, follows:]

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Chairman SENSENBRENNER. The Chair recognizes the gentleman

from Pennsylvania for a motion.

Mr. GEKAS. Mr. Chairman, the Subcommittee on Immigration

and Claims reports favorably the bills H.R. 486, H.R. 487, and H.

Res. 103 and moves their favorable recommendation to the full

House.

Chairman SENSENBRENNER. Without objection, they will be considered as read and open for amendment at any point. Without objection, statements can be placed in the record at this point.

Are there any amendments to either of the bills? If not, the

Chair notes the presence of a reporting quorum. The question is

on——

Ms. JACKSON LEE. Sorry, Mr. Chairman. Could you repeat the

bills that you—are you doing these en bloc?

Chairman SENSENBRENNER. H.R. 486, H.R. 487, and H. Res. 103

en bloc.

Ms. JACKSON LEE. Mr. Chairman?

Chairman SENSENBRENNER. The gentlewoman from Texas.

Ms. JACKSON LEE. Let me just add my support and I will offer

a statement in the record for those three bills. Thank you.

Chairman SENSENBRENNER. The Chair notes the presence of a

reporting quorum. The question is on reporting the three bills favorably. Those in favor will signify by saying aye? Those opposed,

no?

The ayes appear to have it. The ayes have it, and the bills are

favorably reported. Without objection, the Chairman is authorized

to move to go to conference pursuant to House rules. Without objection, the staff is directed to make any technical and conforming

changes, and all Members will be given 2 days, as provided by

House rules, in which to submit additional supplemental, dissenting, or minority views.

At this point in time, because the gentleman from California, Mr.

Berman, had an appointment, the Committee stands in recess subject—okay. Then the Chair recognizes the gentleman from North

Carolina, Mr. Coble.

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