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105TH CONGRESS

1ST SESSION H. R. 992

To end the Tucker Act shuffle.

IN THE HOUSE OF REPRESENTATIVES

MARCH 6, 1997

Mr. SMITH of Texas introduced the following bill; which was referred to the

Committee on the Judiciary

A BILL

To end the Tucker Act shuffle.

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 ‘‘Tucker Act Shuffle

5 Relief Act of 1997’’.

6 SEC. 2. JURISDICTION AND JUDICIAL REVIEW.

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

8 action under this Act to challenge the validity of any agen9 cy action that adversely affects the owner’s interest in pri10 vate property in either the United States District Court

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

12 constitutes express waiver of the sovereign immunity of
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1 the United States. Notwithstanding any other provision of

2 law and notwithstanding the issues involved, the relief

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

4 have concurrent jurisdiction over both claims for monetary

5 relief and claims seeking invalidation of any Act of Con6 gress or any regulation of an agency as defined under this

7 Act affecting private property rights. The plaintiff shall

8 have the election of the court in which to file a claim for

9 relief.

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

11 agency action taken under this Act shall have standing

12 to challenge and seek judicial review of that action.

13 (c) AMENDMENTS TO TITLE 28, UNITED STATES

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

15 Code, is amended—

16 (A) in paragraph (1) by amending the first sen17 tence to read as follows: ‘‘The United States Court

18 of Federal Claims shall have jurisdiction to render

19 judgment upon any claim against the United States

20 for monetary relief founded either upon the Con21 stitution or any Act of Congress or any regulation

22 of an executive department, or upon any express or

23 implied contract with the United States, in cases not

24 sounding in tort, or for invalidation of any Act of
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1 Congress or any regulation of an executive depart2 ment that adversely affects private property rights

3 in violation of the fifth amendment of the United

4 States Constitution’’;

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

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

7 jurisdiction, the Court of Federal Claims shall have

8 the power to grant injunctive and declaratory relief

9 when appropriate.’’; and

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

11 new paragraphs:

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

13 the Court of Federal Claims shall also have ancillary

14 jurisdiction, concurrent with the courts designated in

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

16 upon any related tort claim authorized under section

17 2674 of this title.

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

19 the Court of Federal Claims which constitute judi20 cial review of agency action (rather than de novo

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

22 shall apply.’’.

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

24 is repealed.
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1 (B) The table of sections for chapter 91 of title 28,

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

3 relating to section 1500.

4 SEC. 3. DEFINITIONS.

5 For purposes of this Act, the term—

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

7 independent agency, or instrumentality of the United

8 States, including any military department, Govern9 ment corporation, Government-controlled corpora10 tion, or other establishment in the executive branch

11 of the United States Government;

12 (2) ‘‘agency action’’ means any action or deci13 sion taken by an agency that—

14 (A) takes a property right; or

15 (B) unreasonably impedes the use of prop16 erty or the exercise of property interests or sig17 nificantly interferes with investment-backed ex18 pectations;

19 (3) ‘‘owner’’ means the owner or possessor of

20 property or rights in property at the time the taking

21 occurs, including when—

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

23 guideline, policy, or action is passed or promul24 gated; or
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1 (B) the permit, license, authorization, or

2 governmental permission is denied or sus3 pended;

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

5 property protected under the fifth amendment to the

6 Constitution of the United States, any applicable

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

8 (A) real property, whether vested or

9 unvested, including—

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

11 for years, or otherwise;

12 (ii) inchoate interests in real property

13 such as remainders and future interests;

14 (iii) personalty that is affixed to or

15 appurtenant to real property;

16 (iv) easements;

17 (v) leaseholds;

18 (vi) recorded liens; and

19 (vii) contracts or other security inter20 ests in, or related to, real property;

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

22 receive water, including any recorded lines on

23 such water right;
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1 (C) rents, issues, and profits of land, in2 cluding minerals, timber, fodder, crops, oil and

3 gas, coal, or geothermal energy;

4 (D) property rights provided by, or memo5 rialized in, a contract, except that such rights

6 shall not be construed under this title to pre7 vent the United States from prohibiting the for8 mation of contracts deemed to harm the public

9 welfare or to prevent the execution of contracts

10 for—

11 (i) national security reasons; or

12 (ii) exigencies that present immediate

13 or reasonably foreseeable threats or inju14 ries to life or property;

15 (E) any interest defined as property under

16 State law; or

17 (F) any interest understood to be property

18 based on custom, usage, common law, or mutu19 ally reinforcing understandings sufficiently well20 grounded in law to back a claim of interest; and

21 (5) ‘‘State agency’’ means any State depart22 ment, agency, political subdivision, or instrumental23 ity that—

24 (A) carries out or enforces a regulatory

25 program required under Federal law;
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1 (B) is delegated administrative or sub2 stantive responsibility under a Federal regu3 latory program; or

4 (C) receives Federal funds in connection

5 with a regulatory program established by a

6 State pursuant to a Federal requirement,

7 if the State enforcement of the regulatory program,

8 or the receipt of Federal funds in connection with a

9 regulatory program established by a State, is di10 rectly related to the taking of private property seek11 ing to be vindicated under this Act.

12 SEC. 4. EFFECTIVE DATE.

13 The provisions of this Act and amendments made by

14 this Act shall take effect upon enactment.

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