II

105TH CONGRESS

1ST SESSION S. 1256

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; to prevent

Federal courts from abstaining from exercising Federal jurisdiction in

actions in which no State law claim is alleged; to permit certification

of unsettled State law questions that are essential to Federal claims

arising under the Constitution; to allow for efficient adjudication of

constitutional claims brought by injured parties in the United States

district courts and the Court of Federal Claims; to clarify when government action is sufficiently final to ripen certain Federal claims arising

under the Constitution; and for other purposes.

IN THE SENATE OF THE UNITED STATES

OCTOBER 6, 1997

Mr. HATCH (for himself, Mr. REID, Mr. COVERDELL, Mr. THURMOND, Mr.

GRAMM, and Mr. BURNS) 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; to

prevent Federal courts from abstaining from exercising

Federal jurisdiction in actions in which no State law

claim is alleged; to permit certification of unsettled State

law questions that are essential to Federal claims arising
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under the Constitution; to allow for efficient adjudication

of constitutional claims brought by injured parties in

the United States district courts and the Court of Federal Claims; to clarify when government action is sufficiently final to ripen certain Federal claims arising under

the Constitution; 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 1997’’.

6 SEC. 2. FINDINGS.

7 Congress finds that—

8 (1) property rights have been abrogated by the

9 application of laws, regulations, and other actions by

10 all levels of government that adversely affect the

11 value and the ability to make reasonable use of pri12 vate property;

13 (2) certain provisions of sections 1346 and

14 1402 and chapter 91 of title 28, United States Code

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

16 the jurisdiction of courts hearing property rights

17 claims, frustrate the ability of a property owner to

18 obtain full relief for violation founded upon the fifth

19 and fourteenth amendments of the United States

20 Constitution;
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1 (3) current law—

2 (A) has no sound basis for splitting juris3 diction between two courts in cases where con4 stitutionally protected property rights are at

5 stake;

6 (B) adds to the complexity and cost of

7 takings and litigation, adversely affecting tax8 payers and property owners;

9 (C) forces a property owner, who seeks

10 just compensation from the Federal Govern11 ment, to elect between equitable relief in the

12 district court and monetary relief (the value of

13 the property taken) in the United States Court

14 of Federal Claims;

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

16 court in complaints against the Federal Govern17 ment, on the ground that the plaintiff should

18 seek just compensation in the Court of Federal

19 Claims;

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

21 of Federal Claims in complaints against the

22 Federal Government, on the ground that the

23 plaintiff should seek equitable relief in district

24 court; and
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1 (F) forces a property owner to first pay to

2 litigate an action in a State court, before a

3 Federal judge can decide whether local govern4 ment has denied property rights safeguarded by

5 the United States Constitution;

6 (4) property owners cannot fully vindicate prop7 erty rights in one lawsuit and their claims may be

8 time barred in a subsequent action;

9 (5) property owners should be able to fully re10 cover for a taking of their private property in one

11 court;

12 (6) certain provisions of section 1346 and 1402

13 and chapter 91 of title 28, United States Code (com14 monly known as the Tucker Act) should be amend15 ed, giving both the district courts of the United

16 States and the Court of Federal Claims jurisdiction

17 to hear all claims relating to property rights in com18 plaints against the Federal Government;

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

20 Code, which denies the Court of Federal Claims ju21 risdiction to entertain a suit which is pending in an22 other court and made by the same plaintiff, should

23 be repealed;

24 (8) Federal and local authorities, through com25 plex, costly, repetitive and unconstitutional permit-
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1 ting, variance, and licensing procedures, have denied

2 property owners their fifth and fourteenth amend3 ment rights under the United States Constitution to

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

5 of others from, their property, and to safeguard

6 those rights, there is a need to determine what con7 stitutes a final decision of an agency in order to

8 allow claimants the ability to protect their property

9 rights in a court of law;

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

11 cases where a property owner seeks redress solely for

12 infringements of rights safeguarded by the United

13 States Constitution, and where no claim of a viola14 tion of State law is alleged; and

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

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

17 amended to clarify when a claim for redress of con18 stitutionally protected property rights is sufficiently

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

20 allegations.

21 SEC. 3. PURPOSES.

22 The purposes of this Act are to—

23 (1) establish a clear, uniform, and efficient ju24 dicial process whereby aggrieved property owners

25 can obtain vindication of property rights guaranteed
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1 by the fifth and fourteenth amendments to the

2 United States Constitution and this Act;

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

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

5 (3) rectify the unduly onerous and expensive re6 quirement that a property owner, seeking redress

7 under section 1979 of the Revised Statutes of the

8 United States (42 U.S.C. 1983) for the infringement

9 of property rights protected by the fifth and four10 teenth amendments of the United States Constitu11 tion, is required to first litigate Federal constitu12 tional issues in a State court before obtaining access

13 to the Federal courts; and

14 (4) provide for uniformity in the application of

15 the ripeness doctrine in cases where constitutionally

16 protected property rights are allegedly infringed, by

17 providing that a final agency decision may be adju18 dicated by a Federal court on the merits after—

19 (A) the pertinent government body denies

20 a meaningful application to develop the land in

21 question; and

22 (B) the property owner seeks a waiver by

23 or brings an appeal to an administrative agency

24 from such denial.
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1 SEC. 4. DEFINITIONS.

2 In this Act, the term—

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

4 or decision taken by a Federal agency or other gov5 ernment agency that at the time of such action, in6 action, or decision adversely affects private property

7 rights;

8 (2) ‘‘district court’’—

9 (A) means a district court of the United

10 States with appropriate jurisdiction; and

11 (B) includes the United States District

12 Court of Guam, the United States District

13 Court of the Virgin Islands, or the District

14 Court for the Northern Mariana Islands;

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

16 agency, independent agency, or instrumentality of

17 the United States, including any military depart18 ment, Government corporation, Government-con19 trolled corporation, or other establishment in the ex20 ecutive branch of the United States Government;

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

22 property or rights in property at the time the taking

23 occurs, including when—

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

25 guideline, policy, or action is passed or promul26 gated; or
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1 (B) the permit, license, authorization, or

2 governmental permission is denied or sus3 pended;

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

5 interests constituting property, as defined by Fed6 eral or State law, protected under the fifth and four7 teenth amendments to the United States Constitu8 tion; and

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

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

11 ownership, alienability, possession, or use of private

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

13 as to require compensation under the fifth amend14 ment to the United States Constitution, including by

15 physical invasion, regulation, exaction, condition, or

16 other means.

17 SEC. 5. PRIVATE PROPERTY ACTIONS.

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

19 under this section to challenge the validity of any Federal

20 agency action that adversely affects the owner’s interest

21 in private property in a district court or the United States

22 Court of Federal Claims.

23 (b) CONCURRENT JURISDICTION.—Notwithstanding

24 any other provision of law and notwithstanding the issues

25 involved, the relief sought, or the amount in controversy,
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1 the district court and the United States Court of Federal

2 Claims shall each have concurrent jurisdiction over both

3 claims for monetary relief and claims seeking invalidation

4 of any Act of Congress or any regulation of a Federal

5 agency affecting private property rights.

6 (c) ELECTION.—The plaintiff may elect to file an ac7 tion under this section in a district court or the United

8 States Court of Federal Claims.

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

10 constitutes express waiver of the sovereign immunity of

11 the United States with respect to an action filed under

12 this section.

13 SEC. 6. STANDING AND EXHAUSTION OF REMEDIES.

14 (a) IN GENERAL.—Subject to subsection (b), any

15 person adversely affected by a Federal agency action shall

16 have standing to challenge and seek judicial review of that

17 action without first exhausting administrative remedies.

18 (b) ADJUDICATION.—

19 (1) IN GENERAL.—Any civil action filed under

20 section 5 shall be ripe for adjudication upon a final

21 decision rendered by the United States, that causes

22 actual and concrete injury to the party seeking re23 dress.

24 (2) FINAL DECISION.—
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1 (A) IN GENERAL.—For purposes of this

2 subsection, a final decision exists if—

3 (i) the United States, acting under

4 Federal statute or regulation, makes a de5 finitive decision regarding the extent of

6 permissible land uses on the property that

7 has allegedly been infringed or taken, with8 out regard to any uses that may be per9 mitted elsewhere; and

10 (ii)(I) one meaningful application to

11 use the property has been submitted for a

12 final decision but is denied; and

13 (II) if the pertinent Federal statute or

14 regulation provides for a right of appeal to

15 or waiver by the pertinent Federal agency

16 from the final decision regarding such

17 property, the party seeking redress has

18 brought 1 appeal or sought 1 waiver from

19 such a final decision.

20 (B) APPEAL OR WAIVER.—For purposes of

21 subparagraph (A)(ii), the party seeking redress

22 shall not be required to apply for such an ap23 peal or waiver if—

24 (i) no such process is available;
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1 (ii) it cannot provide the relief re2 quested; or

3 (iii) the prospects for success are rea4 sonably unlikely and intervention by the

5 district court or the United States Court of

6 Federal Claims under this section is war7 ranted to decide the merits.

8 SEC. 7. APPEALS.

9 The United States Court of Appeals for the Federal

10 Circuit shall have exclusive jurisdiction of any action filed

11 under section 5, regardless of whether the jurisdiction of

12 such action is based in whole or part under such section.

13 SEC. 8. JURISDICTION OF UNITED STATES COURT OF FED14 ERAL CLAIMS AND UNITED STATES DISTRICT

15 COURTS.

16 (a) UNITED STATES COURT OF FEDERAL CLAIMS.—

17 (1) JURISDICTION.—Section 1491(a) of title

18 28, United States Code, is amended—

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

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

21 Court of Federal Claims shall have jurisdiction

22 to render judgment upon any claim against the

23 United States for monetary relief founded ei24 ther upon the Constitution or any Act of Con25 gress or any regulation of an executive depart-
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1 ment or upon any express or implied contract

2 with the United States, in cases not sounding

3 in tort, or for invalidation of any Act of Con4 gress or any regulation of an executive depart5 ment under section 5 of the Citizens Access to

6 Justice Act of 1997.’’;

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

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

9 within its jurisdiction, the Court of Federal

10 Claims shall have the power to grant injunctive

11 and declaratory relief when appropriate.’’; and

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

13 paragraphs:

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

15 the Court of Federal Claims shall also have supple16 mental jurisdiction, concurrent with the courts des17 ignated under section 1346(b), to render judgment

18 upon any related tort claim authorized under section

19 2674.

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

21 the Court of Federal Claims which constitute judi22 cial review of agency action (rather than de novo

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

24 shall apply.’’.
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1 (2) PENDENCY OF CLAIMS IN OTHER

2 COURTS.—

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

4 28, United States Code is repealed.

5 (B) TECHNICAL AND CONFORMING AMEND6 MENT.—The table of sections for chapter 91 of

7 title 28, United States Code, is amended by

8 striking out the item relating to section 1500.

9 (b) DISTRICT COURT JURISDICTION.—Section

10 1346(a) of title 28, United States Code, is amended by

11 adding after paragraph (2) the following:

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

13 Citizens Access to Justice Act of 1997.’’.

14 (c) DISTRICT COURT CIVIL RIGHTS JURISDICTION;

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

16 Code, is amended—

17 (1) by redesignating subsection (b) as sub18 section (e); and

19 (2) by inserting after subsection (a) the follow20 ing new subsections:

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

22 1979 of the Revised Statutes (42 U.S.C. 1983) to redress

23 the deprivation of a property right or privilege secured by

24 the Constitution shall be ripe for adjudication by the dis25 trict courts upon a final decision by any person acting
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1 under color of any statute, ordinance, regulation, custom,

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

3 that causes actual and concrete injury to the party seeking

4 redress.

5 ‘‘(2)(A) For purposes of this subsection, a final deci6 sion exists if—

7 ‘‘(i) 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 de10 finitive decision regarding the extent of permissible

11 uses on the property that has been allegedly in12 fringed or taken, without regard to any uses that

13 may be permitted elsewhere; and

14 ‘‘(ii)(I) one meaningful application to use the

15 property has been submitted but is denied; and

16 ‘‘(II) if the applicable statute, ordinance, regu17 lation, custom, or usage provides for a right of ap18 peal to or waiver by an administrative agency from

19 the final decision regarding the property, the party

20 seeking redress has brought 1 appeal or sought 1

21 waiver from such a final decision.

22 ‘‘(B) For purposes of subparagraph (A)(ii), the party

23 seeking redress shall not be required to apply for such an

24 appeal or waiver if—

25 ‘‘(i) no such process is available;
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1 ‘‘(ii) it cannot provide the relief requested; or

2 ‘‘(iii) the prospects of success are reasonably

3 unlikely and intervention by the United States Dis4 trict Court is warranted to decide the merits.

5 ‘‘(C) For purposes of this subsection, a ‘final deci6 sion’ for a ripe claim under section 1979 of the Revised

7 Statutes (42 U.S.C. 1983) shall not require the party

8 seeking redress to exhaust judicial remedies provided by

9 any State or Territory.

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

11 under subsection (a), in an action where 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 in an action where no claim of a violation of a State

15 law, right, or privilege is alleged, and where a parallel pro16 ceeding in State court arising out of the same operative

17 facts as the district court proceeding is not pending.

18 ‘‘(d) Where the district court has jurisdiction over an

19 action under subsection (a), where the operative facts con20 cern the uses of real property, that cannot be decided

21 without resolution of a significant but unsettled question

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

23 of State law to the highest appellate court of that State.

24 After the State appellate court resolves the question cer25 tified to it, the district court shall proceed with resolving
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1 the merits. The district court shall not certify a question

2 of State law under this subsection unless the question of

3 State law—

4 ‘‘(1) will significantly affect the merits of the

5 injured party’s Federal claim; and

6 ‘‘(2) is so unclear and obviously susceptible to

7 a limiting construction as to render premature a de8 cision on the merits of the constitutional or legal

9 issue in the case.’’.

10 SEC. 9. STATUTE OF LIMITATIONS.

11 The statute of limitations for any action filed under

12 section 5 shall be 6 years from the date of the taking of

13 private property.

14 SEC. 10. ATTORNEY’S FEES AND COSTS.

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

16 filed under section 5, shall award costs of litigation (in17 cluding reasonable attorney and expert witness fees) to

18 any prevailing plaintiff.

19 SEC. 11. RULES OF CONSTRUCTION.

20 Nothing in this Act shall be construed to interfere

21 with the authority of any State to create additional prop22 erty rights.
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1 SEC. 12. EFFECTIVE DATE.

2 This Act shall take effect on the date of enactment

3 of this Act and shall apply to any agency action that oc4 curs on or after such date.

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