IB 

Union Calendar No. 391 

109TH CONGRESS 

2D SESSION H. R. 4772 

[Report No. 109–658] 

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. 

IN THE HOUSE OF REPRESENTATIVES 

FEBRUARY 16, 2006 

Mr. CHABOT (for himself, Mr. GORDON, Mr. GALLEGLY, Mr. FLAKE, Mr. 

SENSENBRENNER, Mr. BOYD, Mr. FEENEY, and Mr. POMBO) introduced 

the following bill; which was referred to the Committee on the Judiciary 

SEPTEMBER 14, 2006 

Additional sponsors: Mr. NEUGEBAUER, Mr. KELLER, Mr. HERGER, Mr. 

SMITH of Texas, Mr. CALVERT, Mr. BROWN of South Carolina, Mr. 

BISHOP of Georgia, Ms. FOXX, Mr. MCHENRY, Mrs. MYRICK, Mr. POE, 

Mr. CONAWAY, Mr. WILSON of South Carolina, Mr. GUTKNECHT, Mr. 

GOODE, Mr. ISSA, Mr. ROHRABACHER, Mr. BARTLETT of Maryland, Mr. 

AKIN, Mr. CARTER, Mr. MARCHANT, Mr. COLE of Oklahoma, Mr. BACHUS, Mr. KLINE, Mr. ETHERIDGE, Mrs. CAPITO, Mr. CANNON, Mr. 

HOLDEN, and Mr. DAVIS of Kentucky 

SEPTEMBER 14, 2006 

Reported with an amendment, committed to the Committee of the Whole 

House on the State of the Union, and ordered to be printed 


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[Strike out all after the enacting clause and insert the part printed in italic] 

[For text of introduced bill, see copy of bill as introduced on February 16, 2006] 

A BILL 

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. 

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 Rights 

5 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 amend9 ed 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 violation 

15 of a State law, right, or privilege, and no parallel pro16 ceeding is pending in State court, at the time the action 


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

2 operative facts as the district court proceeding. 

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

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

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

6 redress does not pursue judicial remedies provided by a 

7 State or territory of the United States. 

8 ‘‘(e) If the district court has jurisdiction over an action 

9 under subsection (a) in which the operative facts concern 

10 the uses of real property and which cannot be decided with11 out resolution of an unsettled question of State law, the dis12 trict court may certify the question of State law to the high13 est appellate court of that State. After the State appellate 

14 court resolves the question so certified, the district court 

15 shall proceed with resolving the merits. The district court 

16 shall not certify a question of State law under this sub17 section unless the question of State law— 

18 ‘‘(1) is necessary to resolve the merits of the Fed19 eral claim of the injured party; and 

20 ‘‘(2) is patently unclear. 

21 ‘‘(f)(1) Any claim or action brought under section 1979 

22 of the Revised Statutes of the United States (42 U.S.C. 

23 1983) to redress the deprivation of a property right or 

24 privilege secured by the Constitution shall be ripe for adju25 dication by the district courts upon a final decision renVerDate Aug 31 2005 05:46 Sep 15, 2006 Jkt 049200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6203 E:\BILLS\H4772.RH H4772

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1 dered by any person acting under color of any statute, ordi2 nance, regulation, custom, or usage, of any State or terri3 tory of the United States, which causes actual and concrete 

4 injury to the party seeking redress. 

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

6 exists if— 

7 ‘‘(A) any person acting under color of any stat8 ute, ordinance, regulation, custom, or usage, of any 

9 State or territory of the United States, makes a defin10 itive decision regarding the extent of permissible uses 

11 on the property that has been allegedly infringed or 

12 taken, without regard to any uses that may be per13 mitted elsewhere; and 

14 ‘‘(B) one meaningful application to use the prop15 erty has been submitted but denied, and the party 

16 seeking redress has applied for but is denied one 

17 waiver and one appeal, if the applicable statute, ordi18 nance, regulation, custom, or usage provides a mecha19 nism for waiver by or appeal to an administrative 

20 agency. 

21 The party seeking redress shall not be required to apply 

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

23 such waiver or appeal is unavailable or can not provide 

24 the relief requested, or if pursuit of such a mechanism would 

25 otherwise be futile.’’. 


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1 SEC. 3. UNITED STATES AS DEFENDANT. 

2 Section 1346 of title 28, United States Code, is amend3 ed by adding at the end the following: 

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

5 is founded upon a property right or privilege secured by 

6 the Constitution, but was allegedly infringed or taken by 

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

8 final decision rendered by the United States, which causes 

9 actual and concrete injury to the party seeking redress. 

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

11 exists if— 

12 ‘‘(A) the United States makes a definitive deci13 sion regarding the extent of permissible uses on the 

14 property that has been allegedly infringed or taken, 

15 without regard to any uses that may be permitted 

16 elsewhere; and 

17 ‘‘(B) one meaningful application to use the prop18 erty has been submitted but denied, and the party 

19 seeking redress has applied for but is denied one 

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

21 United States provides a mechanism for waiver by or 

22 appeal to an administrative agency. 

23 The party seeking redress shall not be required to apply 

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

25 such waiver or appeal is unavailable or can not provide 


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1 the relief requested, or if pursuit of such a mechanism would 

2 otherwise be futile.’’. 

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

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

5 amended by adding at the end the following: 

6 ‘‘(3) Any claim brought under this subsection founded 

7 upon a property right or privilege secured by the Constitu8 tion, but allegedly infringed or taken by the United States, 

9 shall be ripe for adjudication upon a final decision rendered 

10 by the United States, that causes actual and concrete injury 

11 to the party seeking redress. For purposes of this paragraph, 

12 a final decision exists if— 

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

14 decision regarding the extent of permissible uses 

15 on the property that has been allegedly infringed 

16 or taken, without regard to any uses that may 

17 be permitted elsewhere; and 

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

19 property has been submitted but denied, and the 

20 party seeking redress has applied for but is de21 nied one waiver and one appeal, if the applica22 ble statute, ordinance, regulation, custom, or 

23 usage provides a mechanism for waiver by or ap24 peal to an administrative agency. 


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1 The party seeking redress shall not be required to 

2 apply for a waiver or appeal described in subpara3 graph (B) if such waiver or appeal is unavailable or 

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

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

6 SEC. 5. CLARIFICATION FOR CERTAIN CONSTITUTIONAL 

7 PROPERTY RIGHTS CLAIMS. 

8 Section 1979 of the Revised Statutes of the United 

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

10 the following: ‘‘If the party injured seeks to redress the dep11 rivation of a property right or privilege under this section 

12 that is secured by the Constitution by asserting a claim that 

13 concerns— 

14 ‘‘(1) an approval to develop real property that is 

15 subject to conditions or exactions, then the person act16 ing under color of State law is liable if any such con17 dition or exaction, whether legislative or adjudicatory 

18 in nature, including but not limited to the payment 

19 of a monetary fee or a dedication of real property 

20 from the injured 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 Columbia, 

24 then such a claim shall be decided with reference to 

25 each subdivided lot, regardless of ownership, if such a 


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1 lot is taxed, or is otherwise treated and recognized, as 

2 an individual property unit by the State, territory, 

3 or the District of Columbia; or 

4 ‘‘(3) alleged deprivation of substantive due proc5 ess, then the action of the person acting under color 

6 of State law shall be judged as to whether it is arbi7 trary, capricious, an abuse of discretion, or otherwise 

8 not in accordance with law. 

9 For purposes of the preceding sentence, ‘State law’ includes 

10 any law of the District of Columbia or of any territory of 

11 the United States.’’. 

12 SEC. 6. CLARIFICATION FOR CERTAIN CONSTITUTIONAL 

13 PROPERTY RIGHTS CLAIMS AGAINST THE 

14 UNITED STATES. 

15 (a) DISTRICT COURT JURISDICTION.—Section 1346 of 

16 title 28, United States Code, is amended by adding at the 

17 end the following: 

18 ‘‘(i) If a claim brought under subsection (a) is founded 

19 upon a property right or privilege secured by the Constitu20 tion that concerns— 

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

22 permit or authorize uses of real property that is sub23 ject to conditions or exactions, then the United States 

24 is liable if any such condition or exaction, whether 

25 legislative or adjudicatory in nature, including but 


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1 not limited to the payment of a monetary fee or a 

2 dedication of real property from the injured party, is 

3 unconstitutional; 

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

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

6 of any State or territory, or the District of Columbia, 

7 then such a claim against an executive agency shall 

8 be decided with reference to each subdivided lot, re9 gardless of ownership, if such a lot is taxed, or is oth10 erwise treated and recognized, as an individual prop11 erty unit by the State or territory, or the District of 

12 Columbia, as the case may be; or 

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

14 process, then the United States shall be judged as to 

15 whether its action is arbitrary, capricious, an abuse 

16 of discretion, or otherwise not in accordance with law. 

17 In this subsection, the term ‘executive agency’ has the mean18 ing given that term in section 105 of title 5.’’. 

19 (b) COURT OF FEDERAL CLAIMS JURISDICTION.—Sec20 tion 1491 of title 28, United States Code, is amended by 

21 adding at the end the following: 

22 ‘‘(4) If a claim brought under subsection (a) is founded 

23 upon a property right or privilege secured by the Constitu24 tion that concerns— 


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

2 permit or authorize uses of real property that is sub3 ject to conditions or exactions, then the United States 

4 is liable if any such condition or exaction, whether 

5 legislative or adjudicatory in nature, including but 

6 not limited to the payment of a monetary fee or a 

7 dedication of real property from the injured party, is 

8 unconstitutional; 

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

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

11 of any State or territory, or the District of Columbia, 

12 then such a claim against an executive agency shall 

13 be decided with reference to each subdivided lot, re14 gardless of ownership, if such a lot is taxed, or is oth15 erwise treated and recognized, as an individual prop16 erty unit by the State, or territory, or the District of 

17 Columbia, as the case may be; or 

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

19 process, then the United States shall be judged as to 

20 whether its action is arbitrary, capricious, an abuse 

21 of discretion, or otherwise not in accordance with law. 

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

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


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1 SEC. 7. DUTY OF NOTICE TO OWNERS. 

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

3 an agency action limiting the use of private property that 

4 may be affected by the amendments by this Act, the agency 

5 shall, not later than 30 days after the agency takes that 

6 action, give notice to the owners of that property explaining 

7 their rights under such amendments and the procedures for 

8 obtaining any compensation that may be due them under 

9 such amendments. 

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

11 (1) the term ‘‘Federal agency’’ means ‘‘agency’’, 

12 as that term is defined in section 552(f) of title 5, 

13 United States Code; and 

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

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

16 States Code. 

17 SEC. 8. SEVERABILITY AND EFFECTIVE DATE. 

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

19 amendments made by this Act or the application thereof 

20 to any person or circumstance is held invalid, the remain21 der of this Act, the amendments made by this Act, or the 

22 application thereof to other persons not similarly situated 

23 or to other circumstances shall not be affected by such in24 validation. 


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1 (b) EFFECTIVE DATE.—The amendments made by this 

2 Act shall apply to actions commenced on or after the date 

3 of the enactment of this Act. 


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Union Calendar No. 391 

109TH CONGRESS 

2D SESSION H. R. 4772 

[Report No. 109

–658] 

A BILL 

To simplify and expedite access to the Federal 

poses. ing under color of State law, and for other purcies or other government officials or entities actbeen deprived by final actions of Federal agenleges under the United States Constitution have courts for injured parties whose rights and priviSEPTEMBER 14, 2006 

Reported with an amendment, committed to the Comand ordered to be printed mittee of the Whole House on the State of the Union, 


pwalker on PRODPC60 with BILLS