II

105TH CONGRESS

1ST SESSION S. 1204

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 where no State law claim is alleged; to permit certification of

unsettled State law questions that are essential to resolving Federal

claims arising under the Constitution; and to clarify when government

action is sufficiently final to ripen certain Federal claims arising under

the Constitution.

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 23, 1997

Mr. COVERDELL (for himself, Ms. LANDRIEU, Mrs. HUTCHISON, Mr. CRAIG,

Mr. MACK, Mr. BROWNBACK, Mr. KYL, Mr. BURNS, Mr. HATCH, Mr.

ENZI, Mr. GRAMM, Mr. THURMOND, Mr. DORGAN, and Mr. REID) 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 where no State law claim

is alleged; to permit certification of unsettled State law

questions that are essential to resolving Federal claims
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arising under the Constitution; and to clarify when government action is sufficiently final to ripen certain Federal claims arising under the Constitution.

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 ‘‘Property Owners Ac5 cess to Justice Act of 1997’’.

6 SEC. 2. JURISDICTION IN CIVIL RIGHTS CASES.

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

8 amended by adding at the end the following:

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

10 under subsection (a), it shall not abstain from exercising

11 or relinquish its jurisdiction to a State court in an action

12 where no claim of a violation of a State law, right, or privi13 lege is alleged.

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

15 action under subsection (a) that cannot be decided without

16 resolution of a significant but unsettled question of State

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

18 law to the highest appellate court of that State. After the

19 State appellate court resolves the question certified to it,

20 the district court shall proceed with resolving the merits.

21 The district court shall not certify a question of State law

22 under this subsection unless the question of State law—
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1 ‘‘(1) will significantly affect the merits of the

2 injured party’s Federal claim; and

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

4 a limiting construction as to render premature a de5 cision on the merits of the constitutional or legal

6 issue in the case.

7 ‘‘(e)(1) Any claim or action brought under section

8 1979 of the Revised Statutes of the United States (42

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

10 or privilege secured by the Constitution shall be ripe for

11 adjudication by the district courts upon a final decision

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

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

14 territory of the United States, that causes actual and con15 crete injury to the party seeking redress.

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

17 exists if—

18 ‘‘(A) any person acting under color of any stat19 ute, ordinance, regulation, custom, or usage, of any

20 State or territory of the United States, makes a de21 finitive decision regarding the extent of permissible

22 uses on the property that has been allegedly in23 fringed or taken, without regard to any uses that

24 may be permitted elsewhere; and
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1 ‘‘(B) the applicable statute, ordinance, regula2 tion, custom, or usage provides for a right of appeal

3 or waiver from such decision, and the party seeking

4 redress has applied for, but has been denied, one

5 such appeal or waiver.

6 The party seeking redress shall not be required to apply

7 for an appeal or waiver described in subparagraph (B) if

8 the prospects of success are reasonably unlikely and inter9 vention by the district court is warranted to decide the

10 merits.

11 ‘‘(3) For purposes of this subsection, a final decision

12 shall not require the party seeking redress to exhaust judi13 cial remedies provided by any State or territory of the

14 United States.’’.

15 SEC. 3. UNITED STATES AS DEFENDANT.

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

17 amended by adding at the end the following:

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

19 is founded upon a property right or privilege secured by

20 the Constitution, but was allegedly infringed or taken by

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

22 final decision rendered by the United States, that causes

23 actual and concrete injury to the party seeking redress.

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

25 exists if—
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1 ‘‘(A) the United States makes a definitive deci2 sion regarding the extent of permissible uses on the

3 property that has been allegedly infringed or taken,

4 without regard to any uses that may be permitted

5 elsewhere; and

6 ‘‘(B) an applicable law of the United States

7 provides for a right of appeal or waiver from such

8 decision, and the party seeking redress has applied

9 for, but has been denied, one such appeal or waiver.

10 The party seeking redress shall not be required to apply

11 for an appeal or waiver described in subparagraph (B),

12 if the prospects of success are reasonably unlikely and

13 intervention by the district court or the United States

14 Court of Federal Claims is warranted to decide the

15 merits.’’.

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

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

18 amended by adding at the end the following:

19 ‘‘(3) Any claim brought under this subsection found20 ed upon a property right or privilege secured by the Con21 stitution, but allegedly infringed or taken by the United

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

23 rendered by the United States, that causes actual and con24 crete injury to the party seeking redress. For purposes of

25 this paragraph, a final decision exists if—
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1 ‘‘(A) the United States makes a definitive deci2 sion regarding the extent of permissible uses on the

3 property that has been allegedly infringed or taken,

4 without regard to any uses that may be permitted

5 elsewhere; and

6 ‘‘(B) an applicable law of the United States

7 provides for a right of appeal or waiver from such

8 final decision, and the party seeking redress has ap9 plied for, but has been denied, one such appeal or

10 waiver.

11 The party seeking redress shall not be required to apply

12 for an appeal or waiver described in subparagraph (B) if

13 the prospects of success are reasonably unlikely and inter14 vention by the United States Court of Federal Claims is

15 warranted to decide the merits.’’.

16 SEC. 5. EFFECTIVE DATE.

17 The amendments made by this Act shall apply to

18 actions commenced on or after the date of the enactment

19 of this Act.

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