I 

115TH CONGRESS 

2D SESSION H. R. 7178 

To establish a uniform and more efficient Federal process for protecting 

property owners’ rights guaranteed by the fifth amendment. 

IN THE HOUSE OF REPRESENTATIVES 

NOVEMBER 27, 2018 

Mr. REED (for himself, Mr. GOSAR, Mr. BRAT, and Mr. KING of Iowa) introduced the following bill; which was referred to the Committee on the Judiciary 

A BILL 

To establish a uniform and more efficient Federal process 

for protecting property owners’ rights guaranteed by the 

fifth amendment. 

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 ‘‘Defense of Property 

5 Rights Act’’. 

6 SEC. 2. FINDINGS. 

7 The Congress finds that— 

8 (1) the private ownership of property is essen9 tial to a free society and is an integral part of the 


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1 American tradition of liberty and limited govern2 ment; 

3 (2) the framers of the United States Constitu4 tion, in order to protect private property and liberty, 

5 devised a framework of Government designed to dif6 fuse power and limit Government; 

7 (3) to further ensure the protection of private 

8 property, the fifth amendment to the United States 

9 Constitution was ratified to prevent the taking of 

10 private property by the Federal Government, except 

11 for public use and with just compensation; 

12 (4) the purpose of the takings clause of the 

13 fifth amendment of the United States Constitution, 

14 as the Supreme Court stated in Armstrong v. United 

15 States, 364 U.S. 40, 49 (1960), is ‘‘to bar Govern16 ment from forcing some people alone to bear public 

17 burdens, which in all fairness and justice, should be 

18 borne by the public as a whole’’; 

19 (5) the agencies, in their efforts to ameliorate 

20 public harms and environmental abuse, have singled 

21 out property holders to shoulder the cost that should 

22 be borne by the public, in violation of the just com23 pensation requirement of the takings clause of the 

24 fifth amendment of the United States Constitution; 


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1 (6) there is a need to both restrain the agencies 

2 in their overzealous regulation of the private sector 

3 and to protect private property, which is a funda4 mental right of the American people; 

5 (7) the incremental, fact-specific approach that 

6 courts now are required to employ in the absence of 

7 adequate statutory language to vindicate property 

8 rights under the fifth amendment of the United 

9 States Constitution has been ineffective and costly 

10 and there is a need for Congress to clarify the law 

11 and provide an effective remedy; 

12 (8) certain provisions of sections 1346 and 

13 1402 and chapter 91 of title 28, United States Code 

14 (commonly known as the Tucker Act), that delin15 eates the jurisdiction of courts hearing property 

16 rights claims, complicates the ability of a property 

17 owner to vindicate a property owner’s right to just 

18 compensation for a governmental action that has 

19 caused a physical or regulatory taking; 

20 (9) current law— 

21 (A) forces a property owner to elect be22 tween equitable relief in the district court and 

23 monetary relief (the value of the property 

24 taken) in the United States Court of Federal 

25 Claims; 


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1 (B) is used to urge dismissal in the district 

2 court on the ground that the plaintiff should 

3 seek just compensation in the Court of Federal 

4 Claims; and 

5 (C) is used to urge dismissal in the Court 

6 of Federal Claims on the ground that the plain7 tiff should seek equitable relief in district court; 

8 (10) property owners cannot fully vindicate 

9 property rights in one court; 

10 (11) property owners should be able to fully re11 cover for a taking of their private property in one 

12 court; 

13 (12) certain provisions of sections 1346 and 

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

15 (commonly known as the Tucker Act) should be 

16 amended, giving both the district courts of the 

17 United States and the Court of Federal Claims ju18 risdiction to hear all claims relating to property 

19 rights; and 

20 (13) section 1500 of title 28, United States 

21 Code, which denies the Court of Federal Claims ju22 risdiction to entertain a suit which is pending in an23 other court and made by the same plaintiff, should 

24 be repealed. 


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1 SEC. 3. PURPOSE. 

2 The purpose of this Act is to— 

3 (1) encourage, support, and promote the private 

4 ownership of property by ensuring the constitutional 

5 and legal protection of private property by the 

6 United States Government; 

7 (2) establish a clear, uniform, and efficient ju8 dicial process whereby aggrieved property owners 

9 can obtain vindication of property rights guaranteed 

10 by the fifth amendment to the United States Con11 stitution and this Act; 

12 (3) amend certain provisions of the Tucker Act, 

13 including the repeal of section 1500 of title 28, 

14 United States Code; 

15 (4) rectify the constitutional imbalance between 

16 the Federal Government and the States; and 

17 (5) require the Federal Government and States 

18 to compensate property owners for the deprivation of 

19 property rights. 

20 SEC. 4. DEFINITIONS. 

21 For purposes of this Act the term— 

22 (1) ‘‘agency’’ means a department, agency, 

23 independent agency, or instrumentality of the United 

24 States or an individual State, including any military 

25 department, Government corporation, Government26 controlled corporation, or other establishment in the 


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1 executive branch of the United States Government 

2 or an individual State; 

3 (2) ‘‘agency action’’ means any action or deci4 sion taken, permanently or temporarily, by an agen5 cy that— 

6 (A) takes a property right; or 

7 (B) unreasonably impedes the use of prop8 erty or the exercise of property interests or sig9 nificantly interferes with investment-backed ex10 pectations; 

11 (3) ‘‘just compensation’’— 

12 (A) means compensation equal to the full 

13 extent of a property owner’s loss, including the 

14 fair market value of the private property taken 

15 and business losses arising from a taking, 

16 whether the taking is by physical occupation or 

17 through regulation, exaction, or other means; 

18 and 

19 (B) shall include compounded interest cal20 culated from the date of the taking until the 

21 date the agency tenders payment; 

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

23 property or rights in property at the time the taking 

24 occurs, including when— 


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

2 guideline, policy, or action is passed or promul3 gated; or 

4 (B) the permit, license, authorization, or 

5 governmental permission is denied or sus6 pended; 

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

8 property protected under the fifth amendment to the 

9 Constitution of the United States, any applicable 

10 Federal or State law, or this Act, and includes— 

11 (A) real property, whether vested or 

12 unvested, including— 

13 (i) estates in fee, life estates, estates 

14 for years, or otherwise; 

15 (ii) inchoate interests in real property 

16 such as remainders and future interests; 

17 (iii) personalty that is affixed to or 

18 appurtenant to real property; 

19 (iv) easements; 

20 (v) leaseholds; 

21 (vi) recorded liens; and 

22 (vii) contracts or other security inter23 ests in, or related to, real property; 


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1 (B) the right to use water or the right to 

2 receive water, including any recorded lines on 

3 such water right; 

4 (C) rents, issues, and profits of land, in5 cluding minerals, timber, fodder, crops, oil and 

6 gas, coal, or geothermal energy; 

7 (D) property rights provided by, or memo8 rialized in, a contract, except that such rights 

9 shall not be construed under this title to pre10 vent the United States from prohibiting the for11 mation of contracts deemed to harm the public 

12 welfare or to prevent the execution of contracts 

13 for— 

14 (i) national security reasons; or 

15 (ii) exigencies that present immediate 

16 or reasonably foreseeable threats or inju17 ries to life or property; 

18 (E) any interest defined as property under 

19 State law; or 

20 (F) any interest understood to be property 

21 based on custom, usage, common law, or mutu22 ally reinforcing understandings sufficiently well23 grounded in law to back a claim of interest; and 

24 (6) ‘‘taking of private property’’— 


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1 (A) means any action whereby private 

2 property is directly taken in part or in whole as 

3 to require compensation under the fifth amend4 ment to the United States Constitution or 

5 under this Act, including by physical invasion, 

6 regulation, exaction, condition, or other means; 

7 and 

8 (B) shall not include— 

9 (i) a condemnation action filed by the 

10 United States in an applicable court; or 

11 (ii) an action filed by the United 

12 States relating to criminal forfeiture. 

13 SEC. 5. COMPENSATION FOR TAKEN PROPERTY. 

14 (a) IN GENERAL.—No agency shall take private 

15 property in part or in whole except for public purpose and 

16 with just compensation to the property owner. A property 

17 owner shall receive just compensation if— 

18 (1) as a consequence of a decision of any agen19 cy private property (in part or in whole) has been 

20 physically invaded or taken without the consent of 

21 the owner; and 

22 (2)(A) such action does not substantially ad23 vance the stated governmental interest to be 

24 achieved by the legislation or regulation on which 

25 the action is based; 


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1 (B) such action exacts the owner’s constitu2 tional or otherwise lawful right to use the property 

3 or a portion of such property as a condition for the 

4 granting of a permit, license, variance, or any other 

5 agency action without a rough proportionality be6 tween the stated need for the required dedication 

7 and the impact of the proposed use of the property; 

8 (C) such action results in the property owner 

9 being deprived, either temporarily or permanently, of 

10 all or substantially all economically beneficial or pro11 ductive use of the property or that part of the prop12 erty affected by the action without a showing that 

13 such deprivation inheres in the title itself; 

14 (D) such action diminishes the fair market 

15 value of the property which is the subject of the ac16 tion by the lesser of— 

17 (i) 20 percent or more with respect to the 

18 value immediately prior to the governmental ac19 tion; or 

20 (ii) $20,000, or more with respect to the 

21 value immediately prior to the governmental ac22 tion; or 

23 (E) under any other circumstance where a tak24 ing has occurred within the meaning of the fifth 

25 amendment of the United States Constitution. 


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1 (b) BURDEN OF PROOF.—(1) The agency shall bear 

2 the burden of proof in any action described under— 

3 (A) subsection (a)(2)(A), with regard to show4 ing the nexus between the stated governmental pur5 pose of the governmental interest and the impact on 

6 the proposed use of private property; 

7 (B) subsection (a)(2)(B), with regard to show8 ing the proportionality between the exaction and the 

9 impact of the proposed use of the property; and 

10 (C) subsection (a)(2)(C), with regard to show11 ing that such deprivation of value inheres in the title 

12 to the property. 

13 (2) The property owner shall have the burden of 

14 proof in any action described under subsection (a)(2)(D), 

15 with regard to establishing the diminution of value of 

16 property. 

17 SEC. 6. JURISDICTION AND JUDICIAL REVIEW. 

18 (a) IN GENERAL.—A property owner may file a civil 

19 action under this Act to challenge the validity of any agen20 cy action that adversely affects the owner’s interest in pri21 vate property in either the United States District Court 

22 or the United States Court of Federal Claims. This section 

23 constitutes express waiver of the sovereign immunity of 

24 the United States. Notwithstanding any other provision of 

25 law and notwithstanding the issues involved, the relief 


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1 sought, or the amount in controversy, each court shall 

2 have concurrent jurisdiction over both claims for monetary 

3 relief and claims seeking invalidation of any Act of Con4 gress or any agency action defined under this Act affecting 

5 private property rights. The plaintiff shall have the elec6 tion of the court in which to file a claim for relief. 

7 (b) STANDING.—Persons adversely affected by an 

8 agency action taken under this Act shall have standing 

9 to challenge and seek judicial review of that action. 

10 (c) AMENDMENTS TO TITLE 28, UNITED STATES

11 CODE.—(1) Section 1491(a) of title 28, United States 

12 Code, is amended— 

13 (A) in paragraph (1) by amending the first sen14 tence to read as follows: ‘‘The United States Court 

15 of Federal Claims shall have jurisdiction to render 

16 judgment upon any claim against an agency for 

17 monetary relief founded either upon the Constitution 

18 or any Act of Congress or any regulation of an exec19 utive department, or upon any express or implied 

20 contract with an agency, in cases not sounding in 

21 tort, or for invalidation of any Act of Congress or 

22 any regulation of an executive department that ad23 versely affects private property rights in violation of 

24 the fifth amendment of the United States Constitu25 tion’’; 


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1 (B) in paragraph (2) by inserting before the 

2 first sentence the following: ‘‘In any case within its 

3 jurisdiction, the Court of Federal Claims shall have 

4 the power to grant injunctive and declaratory relief 

5 when appropriate.’’; and 

6 (C) by adding at the end thereof the following 

7 new paragraphs: 

8 ‘‘(4) In cases otherwise within its jurisdiction, 

9 the Court of Federal Claims shall also have ancillary 

10 jurisdiction, concurrent with the courts designated in 

11 section 1346(b) of this title, to render judgment 

12 upon any related tort claim authorized under section 

13 2674 of this title. 

14 ‘‘(5) In proceedings within the jurisdiction of 

15 the Court of Federal Claims which constitute judi16 cial review of agency action (rather than de novo 

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

18 shall apply.’’. 

19 (2)(A) Section 1500 of title 28, United States Code, 

20 is repealed. 

21 (B) The table of sections for chapter 91 of title 28, 

22 United States Code, is amended by striking out the item 

23 relating to section 1500. 


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1 SEC. 7. STATUTE OF LIMITATIONS. 

2 The statute of limitations for actions brought under 

3 this title shall be 6 years from the date of the taking of 

4 property. 

5 SEC. 8. ATTORNEYS’ FEES AND COSTS. 

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

7 brought under this Act, shall award costs of litigation (in8 cluding reasonable attorney and expert witness fees) to 

9 any prevailing plaintiff. 

10 SEC. 9. ALTERNATIVE DISPUTE RESOLUTION. 

11 (a) IN GENERAL.—Either party to a dispute over a 

12 taking of property as defined under this Act or litigation 

13 commenced under this Act may elect to resolve the dispute 

14 through settlement or arbitration. In the administration 

15 of this section— 

16 (1) such alternative dispute resolution may only 

17 be effectuated by the consent of all parties; 

18 (2) arbitration procedures shall be in accord19 ance with the alternative dispute resolution proce20 dures established by the American Arbitration Asso21 ciation; and 

22 (3) in no event shall arbitration be a condition 

23 precedent or an administrative procedure to be ex24 hausted before the filing of a civil action under this 

25 Act. 


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1 (b) REVIEW OF ARBITRATION.—Appeal from arbitra2 tion decisions shall be to the United States District Court 

3 or the United States Court of Federal Claims in the man4 ner prescribed by law for the claim under this Act. 

5 SEC. 10. RULES OF CONSTRUCTION. 

6 Nothing in this Act shall be construed to interfere 

7 with the authority of any State to create additional prop8 erty rights. 

9 SEC. 11. SEVERABILITY. 

10 If any provision of this Act, an amendment made by 

11 this Act, or the application of such provision or amend12 ment to any person or circumstance is held to be unconsti13 tutional, the remainder of this Act, the amendments made 

14 by this Act, and the application of the provisions of such 

15 to any person or circumstance shall not be affected there16 by. 

17 SEC. 12. EFFECTIVE DATE. 

18 The provisions of this Act shall apply to actions com19 menced on or after the date of the enactment of this Act. 

Æ 


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