I
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.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Tucker Act Shuffle
Relief Act of 1997’’.
SEC. 2. JURISDICTION AND JUDICIAL REVIEW.
(a) IN GENERAL.—A property owner may file a civil
action under this Act to challenge the validity of any agen-
cy action that adversely affects the owner’s interest in pri-
vate property in either the United States District Court
or the United States Court of Federal Claims. This section
constitutes express waiver of the sovereign immunity of
the United States. Notwithstanding any other provision of
law and notwithstanding the issues involved, the relief
sought, or the amount in controversy, each court shall
have concurrent jurisdiction over both claims for monetary
relief and claims seeking invalidation of any Act of Con-
gress or any regulation of an agency as defined under this
Act affecting private property rights. The plaintiff shall
have the election of the court in which to file a claim for
relief.
(b) STANDING.—Persons adversely affected by an
agency action taken under this Act shall have standing
to challenge and seek judicial review of that action.
(c) AMENDMENTS TO TITLE 28, UNITED STATES
CODE.—(1) Section 1491(a) of title 28, United States
Code, is amended—
(A) in paragraph (1) by amending the first sen-
tence to read as follows: ‘‘The United States Court
of Federal Claims shall have jurisdiction to render
judgment upon any claim against the United States
for monetary relief founded either upon the Con-
stitution or any Act of Congress or any regulation
of an executive department, or upon any express or
implied contract with the United States, in cases not
sounding in tort, or for invalidation of any Act of
Congress or any regulation of an executive depart-
ment that adversely affects private property rights
in violation of the fifth amendment of the United
States Constitution’’;
(B) in paragraph (2) by inserting before the
first sentence the following: ‘‘In any case within its
jurisdiction, the Court of Federal Claims shall have
the power to grant injunctive and declaratory relief
when appropriate.’’; and
(C) by adding at the end thereof the following
new paragraphs:
‘‘(4) In cases otherwise within its jurisdiction,
the Court of Federal Claims shall also have ancillary
jurisdiction, concurrent with the courts designated in
section 1346(b) of this title, to render judgment
upon any related tort claim authorized under section
2674 of this title.
‘‘(5) In proceedings within the jurisdiction of
the Court of Federal Claims which constitute judi-
cial review of agency action (rather than de novo
proceedings), the provisions of section 706 of title 5
shall apply.’’.
(2)(A) Section 1500 of title 28, United States Code,
is repealed.
(B) The table of sections for chapter 91 of title 28,
United States Code, is amended by striking out the item
relating to section 1500.
SEC. 3. DEFINITIONS.
For purposes of this Act, the term—
(1) ‘‘agency’’ means a department, agency,
independent agency, or instrumentality of the United
States, including any military department, Govern-
ment corporation, Government-controlled corpora-
tion, or other establishment in the executive branch
of the United States Government;
(2) ‘‘agency action’’ means any action or deci-
sion taken by an agency that—
(A) takes a property right; or
(B) unreasonably impedes the use of prop-
erty or the exercise of property interests or sig-
nificantly interferes with investment-backed ex-
pectations;
(3) ‘‘owner’’ means the owner or possessor of
property or rights in property at the time the taking
occurs, including when—
(A) the statute, regulation, rule, order,
guideline, policy, or action is passed or promul-
gated; or
(B) the permit, license, authorization, or
governmental permission is denied or sus-
pended;
(4) ‘‘private property’’ or ‘‘property’’ means all
property protected under the fifth amendment to the
Constitution of the United States, any applicable
Federal or State law, or this Act, and includes—
(A) real property, whether vested or
unvested, including—
(i) estates in fee, life estates, estates
for years, or otherwise;
(ii) inchoate interests in real property
such as remainders and future interests;
(iii) personalty that is affixed to or
appurtenant to real property;
(iv) easements;
(v) leaseholds;
(vi) recorded liens; and
(vii) contracts or other security inter-
ests in, or related to, real property;
(B) the right to use water or the right to
receive water, including any recorded lines on
such water right;
(C) rents, issues, and profits of land, in-
cluding minerals, timber, fodder, crops, oil and
gas, coal, or geothermal energy;
(D) property rights provided by, or memo-
rialized in, a contract, except that such rights
shall not be construed under this title to pre-
vent the United States from prohibiting the for-
mation of contracts deemed to harm the public
welfare or to prevent the execution of contracts
for—
(i) national security reasons; or
(ii) exigencies that present immediate
or reasonably foreseeable threats or inju-
ries to life or property;
(E) any interest defined as property under
State law; or
(F) any interest understood to be property
based on custom, usage, common law, or mutu-
ally reinforcing understandings sufficiently well-
grounded in law to back a claim of interest; and
(5) ‘‘State agency’’ means any State depart-
ment, agency, political subdivision, or instrumental-
ity that—
(A) carries out or enforces a regulatory
program required under Federal law;
(B) is delegated administrative or sub-
stantive responsibility under a Federal regu-
latory program; or
(C) receives Federal funds in connection
with a regulatory program established by a
State pursuant to a Federal requirement,
if the State enforcement of the regulatory program,
or the receipt of Federal funds in connection with a
regulatory program established by a State, is di-
rectly related to the taking of private property seek-
ing to be vindicated under this Act.
SEC. 4. EFFECTIVE DATE.
The provisions of this Act and amendments made by
this Act shall take effect upon enactment.
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