I 

118TH CONGRESS 

1ST SESSION H. R. 6758 

To establish a uniform and more efficient Federal process for protecting 

property owners’ rights guaranteed by the fifth amendment. 

IN THE HOUSE OF REPRESENTATIVES 

DECEMBER 13, 2023 

Mr. LANGWORTHY (for himself, Ms. HAGEMAN, Mr. BIGGS, Mr. BACON, Mr. 

BAIRD, Mr. FINSTAD, Mr. GOSAR, Mr. NEWHOUSE, Ms. TENNEY, Mr. 

VALADAO, Mr. THOMPSON of Pennsylvania, Mr. WEBER of Texas, and 

Mr. ZINKE) introduced the following bill; which was referred to the Committee on the Judiciary 

A BILL 

To establish a uniform and more efficient Federal process 

for protecting property owners’ rights guaranteed by the 

fifth amendment. 

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 ‘‘Defense of Property 

5 Rights Act’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds that— 

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1 (1) the private ownership of property is essen2 tial to a free society and is an integral part of the 

3 American tradition of liberty and limited govern4 ment; 

5 (2) the framers of the United States Constitu6 tion, in order to protect private property and liberty, 

7 devised a framework of Government designed to dif8 fuse power and limit Government; 

9 (3) to further ensure the protection of private 

10 property, the fifth amendment to the United States 

11 Constitution was ratified to prevent the taking of 

12 private property by the Federal Government, except 

13 for public use and with just compensation; 

14 (4) the purpose of the takings clause of the 

15 fifth amendment of the United States Constitution, 

16 as the Supreme Court stated in Armstrong v. United 

17 States, 364 U.S. 40, 49 (1960), is ‘‘to bar Govern18 ment from forcing some people alone to bear public 

19 burdens, which in all fairness and justice, should be 

20 borne by the public as a whole’’; 

21 (5) the agencies, in their efforts to ameliorate 

22 public harms and environmental abuse, have singled 

23 out property holders to shoulder the cost that should 

24 be borne by the public, in violation of the just comVerDate Sep 11 2014 20:48 Jan 03, 2024 Jkt 049200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H6758.IH H6758
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1 pensation requirement of the takings clause of the 

2 fifth amendment of the United States Constitution; 

3 (6) there is a need to both restrain the agencies 

4 in their overzealous regulation of the private sector 

5 and to protect private property, which is a funda6 mental right of the American people; 

7 (7) the incremental, fact-specific approach that 

8 courts now are required to employ in the absence of 

9 adequate statutory language to vindicate property 

10 rights under the fifth amendment of the United 

11 States Constitution has been ineffective and costly 

12 and there is a need for Congress to clarify the law 

13 and provide an effective remedy; 

14 (8) certain provisions of sections 1346 and 

15 1402 and chapter 91 of title 28, United States Code 

16 (commonly known as the Tucker Act), that delin17 eates the jurisdiction of courts hearing property 

18 rights claims, complicates the ability of a property 

19 owner to vindicate a property owner’s right to just 

20 compensation for a governmental action that has 

21 caused a physical or regulatory taking; 

22 (9) current law— 

23 (A) forces a property owner to elect be24 tween equitable relief in the district court and 

25 monetary relief (the value of the property 

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1 taken) in the United States Court of Federal 

2 Claims; 

3 (B) is used to urge dismissal in the district 

4 court on the ground that the plaintiff should 

5 seek just compensation in the Court of Federal 

6 Claims; and 

7 (C) is used to urge dismissal in the Court 

8 of Federal Claims on the ground that the plain9 tiff should seek equitable relief in district court; 

10 (10) property owners cannot fully vindicate 

11 property rights in one court; 

12 (11) property owners should be able to fully re13 cover for a taking of their private property in one 

14 court; 

15 (12) certain provisions of sections 1346 and 

16 1402 and chapter 91 of title 28, United States Code 

17 (commonly known as the Tucker Act) should be 

18 amended, giving both the district courts of the 

19 United States and the Court of Federal Claims ju20 risdiction to hear all claims relating to property 

21 rights; and 

22 (13) section 1500 of title 28, United States 

23 Code, which denies the Court of Federal Claims ju24 risdiction to entertain a suit which is pending in anVerDate Sep 11 2014 20:48 Jan 03, 2024 Jkt 049200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H6758.IH H6758
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1 other court and made by the same plaintiff, should 

2 be repealed. 

3 SEC. 3. PURPOSE. 

4 The purpose of this Act is to— 

5 (1) encourage, support, and promote the private 

6 ownership of property by ensuring the constitutional 

7 and legal protection of private property by the 

8 United States Government; 

9 (2) establish a clear, uniform, and efficient ju10 dicial process whereby aggrieved property owners 

11 can obtain vindication of property rights guaranteed 

12 by the fifth amendment to the United States Con13 stitution and this Act; 

14 (3) amend certain provisions of the Tucker Act, 

15 including the repeal of section 1500 of title 28, 

16 United States Code; 

17 (4) rectify the constitutional imbalance between 

18 the Federal Government and the States; and 

19 (5) require the Federal Government and States 

20 to compensate compensation to property owners for 

21 the deprivation of property rights. 

22 SEC. 4. DEFINITIONS. 

23 For purposes of this Act the term— 

24 (1) ‘‘agency’’ means a department, agency, 

25 independent agency, or instrumentality of the United 

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1 States or an individual State, including any military 

2 department, Government corporation, Government3 controlled corporation, or other establishment in the 

4 executive branch of the United States Government 

5 or an individual State; 

6 (2) ‘‘agency action’’ means any action or deci7 sion taken, permanently or temporarily, by an agen8 cy that— 

9 (A) takes a property right; or 

10 (B) unreasonably impedes the use of prop11 erty or the exercise of property interests or sig12 nificantly interferes with investment-backed ex13 pectations; 

14 (3) ‘‘just compensation’’— 

15 (A) means compensation equal to the full 

16 extent of a property owner’s loss, including the 

17 fair market value of the private property taken 

18 and business losses arising from a taking, 

19 whether the taking is by physical occupation or 

20 through regulation, exaction, or other means; 

21 and 

22 (B) shall include compounded interest cal23 culated from the date of the taking until the 

24 date the agency tenders payment; 

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

2 property or rights in property at the time the taking 

3 occurs, including when— 

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

5 guideline, policy, or action is passed or promul6 gated; or 

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

8 governmental permission is denied or sus9 pended; 

10 (5) ‘‘private property’’ or ‘‘property’’ means all 

11 property protected under the fifth amendment to the 

12 Constitution of the United States, any applicable 

13 Federal or State law, or this Act, and includes— 

14 (A) real property, whether vested or 

15 unvested, including— 

16 (i) estates in fee, life estates, estates 

17 for years, or otherwise; 

18 (ii) inchoate interests in real property 

19 such as remainders and future interests; 

20 (iii) personalty that is affixed to or 

21 appurtenant to real property; 

22 (iv) easements; 

23 (v) leaseholds; 

24 (vi) recorded liens; and 

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1 (vii) contracts or other security inter2 ests in, or related to, real property; 

3 (B) the right to use water or the right to 

4 receive water, including any recorded lines on 

5 such water right; 

6 (C) rents, issues, and profits of land, in7 cluding minerals, timber, fodder, crops, oil and 

8 gas, coal, or geothermal energy; 

9 (D) property rights provided by, or memo10 rialized in, a contract, except that such rights 

11 shall not be construed under this title to pre12 vent the United States from prohibiting the for13 mation of contracts deemed to harm the public 

14 welfare or to prevent the execution of contracts 

15 for— 

16 (i) national security reasons; or 

17 (ii) exigencies that present immediate 

18 or reasonably foreseeable threats or inju19 ries to life or property; 

20 (E) any interest defined as property under 

21 State law; or 

22 (F) any interest understood to be property 

23 based on custom, usage, common law, or mutu24 ally reinforcing understandings sufficiently well25 grounded in law to back a claim of interest; and 

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1 (6) ‘‘taking of private property’’— 

2 (A) means any action whereby private 

3 property is directly taken in part or in whole as 

4 to require compensation under the fifth amend5 ment to the United States Constitution or 

6 under this Act, including by physical invasion, 

7 regulation, exaction, condition, or other means; 

8 and 

9 (B) shall not include— 

10 (i) a condemnation action filed by the 

11 United States in an applicable court; or 

12 (ii) an action filed by the United 

13 States relating to criminal forfeiture. 

14 SEC. 5. COMPENSATION FOR TAKEN PROPERTY. 

15 (a) IN GENERAL.—No agency, shall take private 

16 property in part or in whole except for public purpose and 

17 with just compensation to the property owner. A property 

18 owner shall receive just compensation if— 

19 (1) as a consequence of a decision of any agen20 cy private property (in part or in whole) has been 

21 physically invaded or taken without the consent of 

22 the owner; and 

23 (2)(A) such action does not substantially ad24 vance the stated governmental interest to be 

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1 achieved by the legislation or regulation on which 

2 the action is based; 

3 (B) such action exacts the owner’s constitu4 tional or otherwise lawful right to use the property 

5 or a portion of such property as a condition for the 

6 granting of a permit, license, variance, or any other 

7 agency action without a rough proportionality be8 tween the stated need for the required dedication 

9 and the impact of the proposed use of the property; 

10 (C) such action results in the property owner 

11 being deprived, either temporarily or permanently, of 

12 all or substantially all economically beneficial or pro13 ductive use of the property or that part of the prop14 erty affected by the action without a showing that 

15 such deprivation inheres in the title itself; 

16 (D) such action diminishes the fair market 

17 value of the property which is the subject of the ac18 tion by the lesser of— 

19 (i) 20 percent or more with respect to the 

20 value immediately prior to the governmental ac21 tion; or 

22 (ii) $20,000, or more with respect to the 

23 value immediately prior to the governmental ac24 tion; or 

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1 (E) under any other circumstance where a tak2 ing has occurred within the meaning of the fifth 

3 amendment of the United States Constitution. 

4 (b) BURDEN OF PROOF.—(1) The agency shall bear 

5 the burden of proof in any action described under— 

6 (A) subsection (a)(2)(A), with regard to show7 ing the nexus between the stated governmental pur8 pose of the governmental interest and the impact on 

9 the proposed use of private property; 

10 (B) subsection (a)(2)(B), with regard to show11 ing the proportionality between the exaction and the 

12 impact of the proposed use of the property; and 

13 (C) subsection (a)(2)(C), with regard to show14 ing that such deprivation of value inheres in the title 

15 to the property. 

16 (2) The property owner shall have the burden of 

17 proof in any action described under subsection (a)(2)(D), 

18 with regard to establishing the diminution of value of 

19 property. 

20 SEC. 6. JURISDICTION AND JUDICIAL REVIEW. 

21 (a) IN GENERAL.—A property owner may file a civil 

22 action under this Act to challenge the validity of any agen23 cy action that adversely affects the owner’s interest in pri24 vate property in either the United States District Court 

25 or the United States Court of Federal Claims. This section 

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1 constitutes express waiver of the sovereign immunity of 

2 the United States. Notwithstanding any other provision of 

3 law and notwithstanding the issues involved, the relief 

4 sought, or the amount in controversy, each court shall 

5 have concurrent jurisdiction over both claims for monetary 

6 relief and claims seeking invalidation of any Act of Con7 gress or any agency action defined under this Act affecting 

8 private property rights. The plaintiff shall have the elec9 tion of the court in which to file a claim for relief. 

10 (b) STANDING.—Persons adversely affected by an 

11 agency action taken under this Act shall have standing 

12 to challenge and seek judicial review of that action. 

13 (c) AMENDMENTS TO TITLE 28, UNITED STATES

14 CODE.—(1) Section 1491(a) of title 28, United States 

15 Code, is amended— 

16 (A) in paragraph (1) by amending the first sen17 tence to read as follows: ‘‘The United States Court 

18 of Federal Claims shall have jurisdiction to render 

19 judgment upon any claim against an agency for 

20 monetary relief founded either upon the Constitution 

21 or any Act of Congress or any regulation of an exec22 utive department, or upon any express or implied 

23 contract with an agency, in cases not sounding in 

24 tort, or for invalidation of any Act of Congress or 

25 any regulation of an executive department that adVerDate Sep 11 2014 20:48 Jan 03, 2024 Jkt 049200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H6758.IH H6758
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1 versely affects private property rights in violation of 

2 the fifth amendment of the United States Constitu3 tion’’; 

4 (B) in paragraph (2) by inserting before the 

5 first sentence the following: ‘‘In any case within its 

6 jurisdiction, the Court of Federal Claims shall have 

7 the power to grant injunctive and declaratory relief 

8 when appropriate.’’; and 

9 (C) by adding at the end thereof the following 

10 new paragraphs: 

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

12 the Court of Federal Claims shall also have ancillary 

13 jurisdiction, concurrent with the courts designated in 

14 section 1346(b) of this title, to render judgment 

15 upon any related tort claim authorized under section 

16 2674 of this title. 

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

18 Court of Federal Claims which constitute judicial review 

19 of agency action (rather than de novo proceedings), the 

20 provisions of section 706 of title 5 shall apply.’’. 

21 (2)(A) Section 1500 of title 28, United States Code, 

22 is repealed. 

23 (B) The table of sections for chapter 91 of title 28, 

24 United States Code, is amended by striking out the item 

25 relating to section 1500. 

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1 SEC. 7. STATUTE OF LIMITATIONS. 

2 The statute of limitations for actions brought under 

3 this title shall be 6 years from the date of the taking of 

4 property. 

5 SEC. 8. ATTORNEYS’ FEES AND COSTS. 

6 The court, in issuing any final order in any action 

7 brought under this Act, shall award costs of litigation (in8 cluding reasonable attorney and expert witness fees) to 

9 any prevailing plaintiff. 

10 SEC. 9. ALTERNATIVE DISPUTE RESOLUTION. 

11 (a) IN GENERAL.—Either party to a dispute over a 

12 taking of property as defined under this Act or litigation 

13 commenced under this Act may elect to resolve the dispute 

14 through settlement or arbitration. In the administration 

15 of this section— 

16 (1) such alternative dispute resolution may only 

17 be effectuated by the consent of all parties; 

18 (2) arbitration procedures shall be in accord19 ance with the alternative dispute resolution proce20 dures established by the American Arbitration Asso21 ciation; and 

22 (3) in no event shall arbitration be a condition 

23 precedent or an administrative procedure to be ex24 hausted before the filing of a civil action under this 

25 Act. 

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1 (b) REVIEW OF ARBITRATION.—Appeal from arbitra2 tion decisions shall be to the United States District Court 

3 or the United States Court of Federal Claims in the man4 ner prescribed by law for the claim under this Act. 

5 SEC. 10. RULES OF CONSTRUCTION. 

6 Nothing in this Act shall be construed to interfere 

7 with the authority of any State to create additional prop8 erty rights. 

9 SEC. 11. SEVERABILITY. 

10 If any provision of this Act, an amendment made by 

11 this Act, or the application of such provision or amend12 ment to any person or circumstance is held to be unconsti13 tutional, the remainder of this Act, the amendments made 

14 by this Act, and the application of the provisions of such 

15 to any person or circumstance shall not be affected there16 by. 

17 SEC. 12. EFFECTIVE DATE. 

18 The provisions of this Act shall apply to actions com19 menced on or after the date of the enactment of this Act. 

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