IIB 

109TH CONGRESS 

2D SESSION H. R. 4772 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 30 (legislative day, SEPTEMBER 29), 2006 

Received 

NOVEMBER 13, 2006 

Read twice and referred to the Committee on the Judiciary 

AN ACT 

To simplify and expedite access to the Federal courts for 

injured parties whose rights and privileges under 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. 


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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 ‘‘Private Property 

5 Rights Implementation Act of 2006’’. 

6 SEC. 2. JURISDICTION IN CIVIL RIGHTS CASES CON7 CERNING REAL PROPERTY. 

8 Section 1343 of title 28, United States Code, is 

9 amended by adding at the end the following: 

10 ‘‘(c) Whenever a district court exercises jurisdiction 

11 under subsection (a) in an action in which the operative 

12 facts concern the uses of real property, it shall not abstain 

13 from exercising or relinquish its jurisdiction to a State 

14 court if the party seeking redress does not allege a viola15 tion of a State law, right, or privilege, and no parallel pro16 ceeding is pending in State court, at the time the action 

17 is filed in the district court, that arises out of the same 

18 operative facts as the district court proceeding. 

19 ‘‘(d) In an action in which the operative facts concern 

20 the uses of real property, the district court shall exercise 

21 jurisdiction under subsection (a) even if the party seeking 

22 redress does not pursue judicial remedies provided by a 

23 State or territory of the United States. 

24 ‘‘(e) If the district court has jurisdiction over an ac25 tion under subsection (a) in which the operative facts conVerDate Aug 31 2005 22:09 Nov 14, 2006 Jkt 059196 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H4772.RFS H4772

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1 cern the uses of real property and which cannot be decided 

2 without resolution of an unsettled question of State law, 

3 the district court may certify the question of State law 

4 to the highest appellate court of that State. After the 

5 State appellate court resolves the question so certified, the 

6 district court shall proceed with resolving the merits. The 

7 district court shall not certify a question of State law 

8 under this subsection unless the question of State law— 

9 ‘‘(1) is necessary to resolve the merits of the 

10 Federal claim of the injured party; and 

11 ‘‘(2) is patently unclear. 

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

13 1979 of the Revised Statutes of the United States (42 

14 U.S.C. 1983) to redress the deprivation of a property right 

15 or privilege secured by the Constitution shall be ripe for 

16 adjudication by the district courts upon a final decision 

17 rendered by any person acting under color of any statute, 

18 ordinance, regulation, custom, or usage, of any State or 

19 territory of the United States, which causes actual and 

20 concrete injury to the party seeking redress. 

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

22 exists if— 

23 ‘‘(A) any person acting under color of any stat24 ute, ordinance, regulation, custom, or usage, of any 

25 State or territory of the United States, makes a deVerDate Aug 31 2005 22:09 Nov 14, 2006 Jkt 059196 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H4772.RFS H4772

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1 finitive decision regarding the extent of permissible 

2 uses on the property that has been allegedly in3 fringed or taken, without regard to any uses that 

4 may be permitted elsewhere; and 

5 ‘‘(B) one meaningful application to use the 

6 property has been submitted but denied, and the 

7 party seeking redress has applied for but is denied 

8 one waiver and one appeal, if the applicable statute, 

9 ordinance, regulation, custom, or usage provides a 

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

12 The party seeking redress shall not be required to apply 

13 for a waiver or appeal described in subparagraph (B) if 

14 such waiver or appeal is unavailable or can not provide 

15 the relief requested, or if pursuit of such a mechanism 

16 would otherwise be futile.’’. 

17 SEC. 3. UNITED STATES AS DEFENDANT. 

18 Section 1346 of title 28, United States Code, is 

19 amended by adding at the end the following: 

20 ‘‘(h)(1) Any claim brought under subsection (a) that 

21 is founded upon a property right or privilege secured by 

22 the Constitution, but was allegedly infringed or taken by 

23 the United States, shall be ripe for adjudication upon a 

24 final decision rendered by the United States, which causes 

25 actual and concrete injury to the party seeking redress. 


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

2 exists if— 

3 ‘‘(A) the United States makes a definitive deci4 sion regarding the extent of permissible uses on the 

5 property that has been allegedly infringed or taken, 

6 without regard to any uses that may be permitted 

7 elsewhere; and 

8 ‘‘(B) one meaningful application to use the 

9 property has been submitted but denied, and the 

10 party seeking redress has applied for but is denied 

11 one waiver and one appeal, if the applicable law of 

12 the United States provides a mechanism for waiver 

13 by or appeal to an administrative agency. 

14 The party seeking redress shall not be required to apply 

15 for a waiver or appeal described in subparagraph (B) if 

16 such waiver or appeal is unavailable or can not provide 

17 the relief requested, or if pursuit of such a mechanism 

18 would otherwise be futile.’’. 

19 SEC. 4. JURISDICTION OF COURT OF FEDERAL CLAIMS. 

20 Section 1491(a) of title 28, United States Code, is 

21 amended by adding at the end the following: 

22 ‘‘(3) Any claim brought under this subsection found23 ed upon a property right or privilege secured by the Con24 stitution, but allegedly infringed or taken by the United 

25 States, shall be ripe for adjudication upon a final decision 


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1 rendered by the United States, that causes actual and con2 crete injury to the party seeking redress. For purposes of 

3 this paragraph, a final decision exists if— 

4 ‘‘(A) the United States makes a definitive 

5 decision regarding the extent of permissible 

6 uses on the property that has been allegedly in7 fringed or taken, without regard to any uses 

8 that may be permitted elsewhere; and 

9 ‘‘(B) one meaningful application to use the 

10 property has been submitted but denied, and 

11 the party seeking redress has applied for but is 

12 denied one waiver and one appeal, if the appli13 cable statute, ordinance, regulation, custom, or 

14 usage provides a mechanism for waiver by or 

15 appeal to an administrative agency. 

16 The party seeking redress shall not be required to 

17 apply for a waiver or appeal described in subpara18 graph (B) if such waiver or appeal is unavailable or 

19 can not provide the relief requested, or if pursuit of 

20 such a mechanism would otherwise be futile.’’. 

21 SEC. 5. CLARIFICATION FOR CERTAIN CONSTITUTIONAL 

22 PROPERTY RIGHTS CLAIMS. 

23 Section 1979 of the Revised Statutes of the United 

24 States (42 U.S.C. 1983) is amended by adding at the end 

25 the following: ‘‘If the party injured seeks to redress the 


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1 deprivation of a property right or privilege under this sec2 tion that is secured by the Constitution by asserting a 

3 claim that concerns— 

4 ‘‘(1) an approval to develop real property that 

5 is subject to conditions or exactions, then the person 

6 acting under color of State law is liable if any such 

7 condition or exaction, whether legislative or adju8 dicatory in nature, including but not limited to the 

9 payment of a monetary fee or a dedication of real 

10 property from the injured party, is unconstitutional; 

11 ‘‘(2) a subdivision of real property pursuant to 

12 any statute, ordinance, regulation, custom, or usage 

13 of any State or territory, or the District of Colum14 bia, then such a claim shall be decided with ref15 erence to each subdivided lot, regardless of owner16 ship, if such a lot is taxed, or is otherwise treated 

17 and recognized, as an individual property unit by the 

18 State, territory, or the District of Columbia; or 

19 ‘‘(3) alleged deprivation of substantive due 

20 process, then the action of the person acting under 

21 color of State law shall be judged as to whether it 

22 is arbitrary, capricious, an abuse of discretion, or 

23 otherwise not in accordance with law. 


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1 For purposes of the preceding sentence, ‘State law’ in2 cludes any law of the District of Columbia or of any terri3 tory of the United States.’’. 

4 SEC. 6. CLARIFICATION FOR CERTAIN CONSTITUTIONAL 

5 PROPERTY RIGHTS CLAIMS AGAINST THE 

6 UNITED STATES. 

7 (a) DISTRICT COURT JURISDICTION.—Section 1346 

8 of title 28, United States Code, is amended by adding at 

9 the end the following: 

10 ‘‘(i) If a claim brought under subsection (a) is found11 ed upon a property right or privilege secured by the Con12 stitution that concerns— 

13 ‘‘(1) an approval from an executive agency to 

14 permit or authorize uses of real property that is sub15 ject to conditions or exactions, then the United 

16 States is liable if any such condition or exaction, 

17 whether legislative or adjudicatory in nature, includ18 ing but not limited to the payment of a monetary fee 

19 or a dedication of real property from the injured 

20 party, is unconstitutional; 

21 ‘‘(2) a subdivision of real property pursuant to 

22 any statute, ordinance, regulation, custom, or usage 

23 of any State or territory, or the District of Colum24 bia, then such a claim against an executive agency 

25 shall be decided with reference to each subdivided 


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1 lot, regardless of ownership, if such a lot is taxed, 

2 or is otherwise treated and recognized, as an indi3 vidual property unit by the State or territory, or the 

4 District of Columbia, as the case may be; or 

5 ‘‘(3) an alleged deprivation of substantive due 

6 process, then the United States shall be judged as 

7 to whether its action is arbitrary, capricious, an 

8 abuse of discretion, or otherwise not in accordance 

9 with law. 

10 In this subsection, the term ‘executive agency’ has the 

11 meaning given that term in section 105 of title 5.’’. 

12 (b) COURT OF FEDERAL CLAIMS JURISDICTION.— 

13 Section 1491 of title 28, United States Code, is amended 

14 by adding at the end the following: 

15 ‘‘(4) If a claim brought under subsection (a) is found16 ed upon a property right or privilege secured by the Con17 stitution that concerns— 

18 ‘‘(A) an approval from an executive agency to 

19 permit or authorize uses of real property that is sub20 ject to conditions or exactions, then the United 

21 States is liable if any such condition or exaction, 

22 whether legislative or adjudicatory in nature, includ23 ing but not limited to the payment of a monetary fee 

24 or a dedication of real property from the injured 

25 party, is unconstitutional; 


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1 ‘‘(B) a subdivision of real property pursuant to 

2 any statute, ordinance, regulation, custom, or usage 

3 of any State or territory, or the District of Colum4 bia, then such a claim against an executive agency 

5 shall be decided with reference to each subdivided 

6 lot, regardless of ownership, if such a lot is taxed, 

7 or is otherwise treated and recognized, as an indi8 vidual property unit by the State, or territory, or the 

9 District of Columbia, as the case may be; or 

10 ‘‘(C) an alleged deprivation of substantive due 

11 process, then the United States shall be judged as 

12 to whether its action is arbitrary, capricious, an 

13 abuse of discretion, or otherwise not in accordance 

14 with law. 

15 In this paragraph, the term ‘executive agency’ has the 

16 meaning given that term in section 105 of title 5.’’. 

17 SEC. 7. DUTY OF NOTICE TO OWNERS. 

18 (a) IN GENERAL.—Whenever a Federal agency takes 

19 an agency action limiting the use of private property that 

20 may be affected by the amendments by this Act, the agen21 cy shall, not later than 30 days after the agency takes 

22 that action, give notice to the owners of that property ex23 plaining their rights under such amendments and the pro24 cedures for obtaining any compensation that may be due 

25 them under such amendments. 


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1 (b) DEFINITIONS.—For purposes of subsection (a)— 

2 (1) the term ‘‘Federal agency’’ means ‘‘agen3 cy’’, as that term is defined in section 552(f) of title 

4 5, United States Code; and 

5 (2) the term ‘‘agency action’’ has the meaning 

6 given that term in section 551 of title 5, United 

7 States Code. 

8 SEC. 8. SEVERABILITY AND EFFECTIVE DATE. 

9 (a) SEVERABILITY.—If any provision of this Act or 

10 the amendments made by this Act or the application there11 of to any person or circumstance is held invalid, the re12 mainder of this Act, the amendments made by this Act, 

13 or the application thereof to other persons not similarly 

14 situated or to other circumstances shall not be affected 

15 by such invalidation. 

16 (b) EFFECTIVE DATE.—The amendments made by 

17 this Act shall apply to actions commenced on or after the 

18 date of the enactment of this Act. 

Passed the House of Representatives September 29, 

2006. 

Attest: KAREN L. HAAS, 

Clerk. 


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