I 

111TH CONGRESS 

2D SESSION H. R. 5624 

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 

JUNE 29, 2010 

Mrs. LUMMIS (for herself, Mr. BISHOP of Utah, Mr. BROUN of Georgia, Mr. 

ROHRABACHER, Mr. HELLER, Mr. SMITH of Nebraska, Mr. HERGER, Mr. 

DAVIS of Kentucky, Mr. POSEY, Mr. MARCHANT, Mr. BURTON of Indiana, Mr. CULBERSON, Mr. ROONEY, Mr. HALL of Texas, Mr. KLINE of 

Minnesota, Mr. FRANKS of Arizona, Mr. BILBRAY, Mr. SHADEGG, Mr. 

CHAFFETZ, Mr. FLAKE, Mr. CONAWAY, Mr. GALLEGLY, and Ms. FOXX) 

introduced the following bill; which was 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 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, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Property Owners Ac3 cess to Court Act of 2010’’. 

4 SEC. 2. JURISDICTION IN CIVIL RIGHTS CASES CON5 CERNING REAL PROPERTY. 

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

7 amended by adding at the end the following: 

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

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

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

11 from exercising or relinquish its jurisdiction to a State 

12 court if the party seeking redress does not allege a viola13 tion of a State law, right, or privilege, and no parallel pro14 ceeding is pending in State court, at the time the action 

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

16 operative facts as the district court proceeding. 

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

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

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

20 redress does not pursue judicial remedies provided by a 

21 State or territory of the United States. 

22 ‘‘(e) If the district court has jurisdiction over an ac23 tion under subsection (a) in which the operative facts con24 cern the uses of real property and which cannot be decided 

25 without resolution of an unsettled question of State law, 

26 the district court may certify the question of State law 


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

2 State appellate court resolves the question so certified, the 

3 district court shall proceed with resolving the merits. The 

4 district court shall not certify a question of State law 

5 under this subsection unless the question of State law— 

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

7 Federal claim of the injured party; and 

8 ‘‘(2) is patently unclear. 

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

10 1979 of the Revised Statutes of the United States (42 

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

12 or privilege secured by the Constitution shall be ripe for 

13 adjudication by the district courts upon a final decision 

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

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

16 territory of the United States, which causes actual and 

17 concrete injury to the party seeking redress. 

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

19 exists if— 

20 ‘‘(A) any person acting under color of any stat21 ute, ordinance, regulation, custom, or usage, of any 

22 State or territory of the United States, makes a de23 finitive decision regarding the extent of permissible 

24 uses on the property that has been allegedly inVerDate Mar 15 2010 16:30 Jun 30, 2010 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H5624.IH H5624

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1 fringed or taken, without regard to any uses that 

2 may be permitted elsewhere; and 

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

4 property has been submitted but denied, and the 

5 party seeking redress has applied for but is denied 

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

7 ordinance, regulation, custom, or usage provides a 

8 mechanism for waiver by or appeal to an administra9 tive agency. 

10 The party seeking redress shall not be required to apply 

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

12 such waiver or appeal is unavailable or cannot provide the 

13 relief requested, or if pursuit of such a mechanism would 

14 otherwise be futile.’’. 

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, which 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) one meaningful application to use the 

7 property has been submitted but denied, and the 

8 party seeking redress has applied for but is denied 

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

10 the United States provides a mechanism for waiver 

11 by or appeal to an administrative 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 cannot provide the 

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

16 otherwise be futile.’’. 

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

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

19 amended by adding at the end the following: 

20 ‘‘(3) Any claim brought under this subsection found21 ed upon a property right or privilege secured by the Con22 stitution, but allegedly infringed or taken by the United 

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

24 rendered by the United States, that causes actual and conVerDate Mar 15 2010 16:30 Jun 30, 2010 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H5624.IH H5624

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1 crete injury to the party seeking redress. For purposes of 

2 this paragraph, a final decision 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 statute, 

12 ordinance, regulation, custom, or usage provides a 

13 mechanism for waiver by or appeal to an administra14 tive agency. 

15 The party seeking redress shall not be required to apply 

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

17 such waiver or appeal is unavailable or can not provide 

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

19 would otherwise be futile.’’. 

20 SEC. 5. CLARIFICATION FOR CERTAIN CONSTITUTIONAL 

21 PROPERTY RIGHTS CLAIMS. 

22 Section 1979 of the Revised Statutes of the United 

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

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

25 deprivation of a property right or privilege under this secVerDate Mar 15 2010 16:30 Jun 30, 2010 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H5624.IH H5624

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1 tion that is secured by the Constitution by asserting a 

2 claim that concerns— 

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

4 is subject to conditions or exactions, then the person 

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

6 condition or exaction, whether legislative or adju7 dicatory in nature, including the payment of a mone8 tary fee or a dedication of real property from the in9 jured party, is unconstitutional; 

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

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

12 of any State or territory, or the District of Colum13 bia, then such a claim shall be decided with ref14 erence to each subdivided lot, regardless of owner15 ship, if such a lot is taxed, or is otherwise treated 

16 and recognized, as an individual property unit by the 

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

18 ‘‘(3) alleged deprivation of substantive due 

19 process, then the action of the person acting under 

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

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

22 otherwise not in accordance with law. 

23 For purposes of the preceding sentence, ‘State law’ in24 cludes any law of the District of Columbia or of any terri25 tory of the United States.’’. 


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1 SEC. 6. CLARIFICATION FOR CERTAIN CONSTITUTIONAL 

2 PROPERTY RIGHTS CLAIMS AGAINST THE 

3 UNITED STATES. 

4 (a) DISTRICT COURT JURISDICTION.—Section 1346 

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

6 the end the following: 

7 ‘‘(i) If a claim brought under subsection (a) is found8 ed upon a property right or privilege secured by the Con9 stitution that concerns— 

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

11 permit or authorize uses of real property that is sub12 ject to conditions or exactions, then the United 

13 States is liable if any such condition or exaction, 

14 whether legislative or adjudicatory in nature, includ15 ing the payment of a monetary fee or a dedication 

16 of real property from the injured party, is unconsti17 tutional; 

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

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

20 of any State or territory, or the District of Colum21 bia, then such a claim against an executive agency 

22 shall be decided with reference to each subdivided 

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

24 or is otherwise treated and recognized, as an indi25 vidual property unit by the State or territory, or the 

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


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

2 process, then the United States shall be judged as 

3 to whether its action is arbitrary, capricious, an 

4 abuse of discretion, or otherwise not in accordance 

5 with law. 

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

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

8 (b) COURT OF FEDERAL CLAIMS JURISDICTION.— 

9 Section 1491(a) of title 28, United States Code, is amend10 ed by adding at the end the following: 

11 ‘‘(4) If a claim brought under subsection (a) is found12 ed upon a property right or privilege secured by the Con13 stitution that concerns— 

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

15 permit or authorize uses of real property that is sub16 ject to conditions or exactions, then the United 

17 States is liable if any such condition or exaction, 

18 whether legislative or adjudicatory in nature, includ19 ing the payment of a monetary fee or a dedication 

20 of real property from the injured party, is unconsti21 tutional; 

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

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

24 of any State or territory, or the District of Colum25 bia, then such a claim against an executive agency 


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1 shall be decided with reference to each subdivided 

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

3 or is otherwise treated and recognized, as an indi4 vidual property unit by the State, or territory, or the 

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

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

7 process, then the United States shall be judged as 

8 to whether its action is arbitrary, capricious, an 

9 abuse of discretion, or otherwise not in accordance 

10 with law. 

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

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

13 SEC. 7. DUTY OF NOTICE TO OWNERS. 

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

15 an agency action limiting the use of private property that 

16 may be affected by the amendments made by this Act, the 

17 agency shall, not later than 30 days after the agency takes 

18 that action, give notice to the owners of that property ex19 plaining their rights under such amendments and the pro20 cedures for obtaining any compensation that may be due 

21 them under such amendments. 

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

23 (1) the term ‘‘Federal agency’’ means ‘‘agen24 cy’’, as that term is defined in section 552(f) of title 

25 5, United States Code; and 


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

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

3 States Code. 

4 SEC. 8. SEVERABILITY AND EFFECTIVE DATE. 

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

6 the amendments made by this Act or the application there7 of to any person or circumstance is held invalid, the re8 mainder of this Act, the amendments made by this Act, 

9 or the application thereof to other persons not similarly 

10 situated or to other circumstances shall not be affected 

11 by such invalidation. 

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

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

14 date of the enactment of this Act. 

Æ 


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