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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 ‘‘Private Property
Rights Implementation Act of 1997’’.
SEC. 2. JURISDICTION IN CIVIL RIGHTS CASES.
Section 1343 of title 28, United States Code, is
amended by adding at the end the following:
‘‘(c) Whenever a district court exercises jurisdiction
under subsection (a) in an action in which the operative
facts concern the uses of real property, it shall not abstain
from exercising or relinquish its jurisdiction to a State
court in an action where no claim of a violation of a State
law, right, or privilege is alleged, and where a parallel pro-
ceeding in State court arising out of the same operative
facts as the district court proceeding is not pending.
‘‘(d) Where the district court has jurisdiction over an
action under subsection (a) in which the operative facts
concern the uses of real property and which cannot be de-
cided without resolution of an unsettled question of State
law, the district court may certify the question of State
law to the highest appellate court of that State. After the
State appellate court resolves the question certified to it,
the district court shall proceed with resolving the merits.
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The district court shall not certify a question of State law
under this subsection unless the question of State law—
‘‘(1) will significantly affect the merits of the
injured party’s Federal claim; and
‘‘(2) is patently unclear.
‘‘(e)(1) Any claim or action brought under section
1979 of the Revised Statutes of the United States (42
U.S.C. 1983) to redress the deprivation of a property right
or privilege secured by the Constitution shall be ripe for
adjudication by the district courts upon a final decision
rendered by any person acting under color of any statute,
ordinance, regulation, custom, or usage, of any State or
territory of the United States, that causes actual and con-
crete injury to the party seeking redress.
‘‘(2)(A) For purposes of this subsection, a final deci-
sion exists if—
‘‘(i) any person acting under color of any stat-
ute, ordinance, regulation, custom, or usage, of any
State or territory of the United States, makes a de-
finitive decision regarding the extent of permissible
uses on the property that has been allegedly in-
fringed or taken;
‘‘(ii)(I) one meaningful application, as defined
by the locality concerned within that State or terri-
tory, to use the property has been submitted but has
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not been approved, and the party seeking redress
has applied for one appeal or waiver which has not
been approved, where the applicable statute, ordi-
nance, custom, or usage provides a mechanism for
appeal to or waiver by an administrative agency; or
‘‘(II) one meaningful application, as defined by
the locality concerned within that State or territory,
to use the property has been submitted but has not
been approved, and the disapproval explains in writ-
ing the use, density, or intensity of development of
the property that would be approved, with any con-
ditions therefor, and the party seeking redress has
resubmitted another meaningful application taking
into account the terms of the disapproval, except
that—
‘‘(aa) if no such reapplication is submitted,
then
a
final
decision
shall
not
have
been
reached for purposes of this subsection, except
as provided in subparagraph (B); and
‘‘(bb) if the reapplication is not approved,
or if the reapplication is not required under
subparagraph (B), then a final decision exists
for purposes of this subsection if the party
seeking redress has applied for one appeal or
waiver with respect to the disapproval, which
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has not been approved, where the applicable
statute, ordinance, custom, or usage provides a
mechanism of appeal or waiver by an adminis-
trative agency; and
‘‘(iii) in a case involving the uses of real prop-
erty, where the applicable statute or ordinance pro-
vides for review of the case by elected officials, the
party seeking redress has applied for but is denied
such review.
‘‘(B) The party seeking redress shall not be required
to apply for an appeal or waiver described in paragraph
(1)(B) if no such appeal or waiver is available, if it cannot
provide the relief requested, or if the application or re-
application would be futile.
‘‘(3) For purposes of this subsection, a final decision
shall not require the party seeking redress to exhaust judi-
cial remedies provided by any State or territory of the
United States.
‘‘(f) Nothing in subsection (c), (d), or (e) alters the
substantive law of takings of property, including the bur-
den of proof borne by the plaintiff.’’.
SEC. 3. UNITED STATES AS DEFENDANT.
Section 1346 of title 28, United States Code, is
amended by adding at the end the following:
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‘‘(h)(1) Any claim brought under subsection (a) that
is founded upon a property right or privilege secured by
the Constitution, but was allegedly infringed or taken by
the United States, shall be ripe for adjudication upon a
final decision rendered by the United States, that causes
actual and concrete injury to the party seeking redress.
‘‘(2) For purposes of this subsection, a final decision
exists if—
‘‘(A) the United States makes a definitive deci-
sion regarding the extent of permissible uses on the
property that has been allegedly infringed or taken;
and
‘‘(B) one meaningful application to use the
property has been submitted but has not been ap-
proved, and the party seeking redress has applied
for one appeal or waiver which has not been ap-
proved, where the applicable law of the United
States provides a mechanism for appeal to or waiver
by an administrative agency.
The party seeking redress shall not be required to apply
for an appeal or waiver described in subparagraph (B) if
no such appeal or waiver is available, if it cannot provide
the relief requested, or if application or reapplication to
use the property would be futile.
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‘‘(3) Nothing in this subsection alters the substantive
law of takings of property, including the burden of proof
borne by the plaintiff.’’.
SEC. 4. JURISDICTION OF COURT OF FEDERAL CLAIMS.
Section 1491(a) of title 28, United States Code, is
amended by adding at the end the following:
‘‘(3) Any claim brought under this subsection found-
ed upon a property right or privilege secured by the Con-
stitution, but allegedly infringed or taken by the United
States, shall be ripe for adjudication upon a final decision
rendered by the United States, that causes actual and con-
crete injury to the party seeking redress. For purposes of
this paragraph, a final decision exists if—
‘‘(A) the United States makes a definitive deci-
sion regarding the extent of permissible uses on the
property that has been allegedly infringed or taken;
and
‘‘(B) one meaningful application to use the
property has been submitted but has not been ap-
proved, and the party seeking redress has applied
for one appeal or waiver which has not been ap-
proved, where the applicable law of the United
States provides a mechanism for appeal or waiver.
The party seeking redress shall not be required to apply
for an appeal or waiver described in subparagraph (B) if
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no such appeal or waiver is available, if it cannot provide
the relief requested, or if application or reapplication to
use the property would be futile. Nothing in this para-
graph alters the substantive law of takings of property,
including the burden of proof borne by the plaintiff.’’.
SEC. 5. DUTY OF NOTICE TO OWNERS.
Whenever a Federal agency takes an agency action
limiting the use of private property that may be affected
by the amendments made by this Act, the agency shall
give notice to the owners of that property explaining their
rights under such amendments and the procedures for ob-
taining any compensation that may be due to them under
such amendments.
SEC. 6. EFFECTIVE DATE.
The amendments made by this Act shall apply to ac-
tions commenced on or after the date of the enactment
of this Act.
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Citizens Access to Jus-
tice Act of 1998’’.
SEC. 2. FINDINGS.
Congress finds that—
(1) property rights have been abrogated by the
application of laws, regulations, and other actions by
all levels of government that adversely affect the value
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and the ability to make reasonable use of private
property;
(2) certain provisions of sections 1346 and 1402
and chapter 91 of title 28, United States Code (com-
monly known as the Tucker Act), that delineate the
jurisdiction of courts hearing property rights claims,
frustrate the ability of a property owner to obtain full
relief for violation founded upon the fifth and four-
teenth amendments of the United States Constitution;
(3) current law—
(A) has no sound basis for splitting juris-
diction between two courts in cases where con-
stitutionally protected property rights are at
stake;
(B) adds to the complexity and cost of
takings and litigation, adversely affecting tax-
payers and property owners;
(C) forces a property owner, who seeks just
compensation from the Federal Government, to
elect between equitable relief in the district court
and monetary relief (the value of the property
taken) in the United States Court of Federal
Claims;
(D) is used to urge dismissal in the district
court in complaints against the Federal Govern-
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ment, on the ground that the plaintiff should
seek just compensation in the Court of Federal
Claims;
(E) is used to urge dismissal in the Court
of Federal Claims in complaints against the
Federal Government, on the ground that the
plaintiff should seek equitable relief in district
court; and
(F) forces a property owner to first pay to
litigate an action in a State court, before a Fed-
eral judge can decide whether local government
has denied property rights safeguarded by the
United States Constitution;
(4) property owners cannot fully vindicate prop-
erty rights in one lawsuit and their claims may be
time barred in a subsequent action;
(5) property owners should be able to fully re-
cover for a taking of their private property in one
court;
(6) certain provisions of section 1346 and 1402
and chapter 91 of title 28, United States Code (com-
monly known as the Tucker Act) should be amended,
giving both the district courts of the United States
and the Court of Federal Claims jurisdiction to hear
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all claims relating to property rights in complaints
against the Federal Government;
(7) section 1500 of title 28, United States Code,
which denies the Court of Federal Claims jurisdiction
to entertain a suit which is pending in another court
and made by the same plaintiff, should be repealed;
(8) Federal and local authorities, through com-
plex, costly, repetitive and unconstitutional permit-
ting, variance, and licensing procedures, have denied
property owners their fifth and fourteenth amendment
rights under the United States Constitution to the
use, enjoyment, and disposition of, and exclusion of
others from, their property, and to safeguard those
rights, there is a need to determine what constitutes
a final decision of an agency in order to allow claim-
ants the ability to protect their property rights in a
court of law;
(9) a Federal judge should decide the merits of
cases where a property owner seeks redress solely for
infringements of rights safeguarded by the United
States Constitution, and where no claim of a viola-
tion of State law is alleged; and
(10) certain provisions of sections 1343, 1346,
and 1491 of title 28, United States Code, should be
amended to clarify when a claim for redress of con-
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stitutionally protected property rights is sufficiently
ripe so a Federal judge may decide the merits of the
allegations.
SEC. 3. PURPOSES.
The purposes of this Act are to—
(1) establish a clear, uniform, and efficient judi-
cial process whereby aggrieved property owners can
obtain vindication of property rights guaranteed by
the fifth and fourteenth amendments to the United
States Constitution and this Act;
(2) amend the Tucker Act, including the repeal
of section 1500 of title 28, United States Code;
(3) rectify the unduly onerous and expensive re-
quirement that a property owner, seeking redress
under section 1979 of the Revised Statutes of the
United States (42 U.S.C. 1983) for the infringement
of property rights protected by the fifth and four-
teenth amendments of the United States Constitution,
is required to first litigate Federal constitutional
issues in a State court before obtaining access to the
Federal courts; and
(4) provide for uniformity in the application of
the ripeness doctrine in cases where constitutionally
protected property rights are allegedly infringed, by
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providing that a final agency decision may be adju-
dicated by a Federal court on the merits after—
(A) the pertinent government body denies a
meaningful application to develop the land in
question; and
(B)(i) the property owner seeks a waiver by
or brings an appeal to an administrative agency
from such denial; and
(ii) such waiver or appeal is not approved.
SEC. 4. DEFINITIONS.
In this Act, the term—
(1) ‘‘agency action’’ means any action, inaction,
or decision taken by a Federal agency or other gov-
ernment agency that at the time of such action, inac-
tion, or decision adversely affects private property
rights;
(2) ‘‘district court’’—
(A) means a district court of the United
States with appropriate jurisdiction; and
(B) includes the United States District
Court of Guam, the United States District Court
of the Virgin Islands, or the District Court for
the Northern Mariana Islands;
(3) ‘‘Federal agency’’ means a department, agen-
cy, independent agency, or instrumentality of the
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United States, including any military department,
Government corporation, Government-controlled cor-
poration, or other establishment in the executive
branch of the United States Government;
(4) ‘‘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 suspended;
(5) ‘‘private property’’ or ‘‘property’’ means all
interests constituting property, as defined by Federal
or State law, protected under the fifth and fourteenth
amendments to the United States Constitution; and
(6) ‘‘taking of private property’’, ‘‘taking’’, or
‘‘take’’ means any action whereby restricting the own-
ership, alienability, possession, or use of private prop-
erty is an object of that action and is taken so as to
require compensation under the fifth amendment to
the United States Constitution, including by physical
invasion, regulation, exaction, condition, or other
means.
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SEC. 5. PRIVATE PROPERTY ACTIONS.
(a) IN GENERAL.—An owner may file a civil action
under this section to challenge the validity of any Federal
agency action as a violation of the fifth amendment to the
United States Constitution in a district court or the United
States Court of Federal Claims.
(b) CONCURRENT
JURISDICTION.—Notwithstanding
any other provision of law and notwithstanding the issues
involved, the relief sought, or the amount in controversy,
the district court and the United States Court of Federal
Claims shall each have concurrent jurisdiction over both
claims for monetary relief and claims seeking invalidation
of any Act of Congress or any regulation of a Federal agen-
cy affecting private property rights.
(c) ELECTION.—The plaintiff may elect to file an ac-
tion under this section in a district court or the United
States Court of Federal Claims.
(d) WAIVER OF SOVEREIGN IMMUNITY.—This section
constitutes express waiver of the sovereign immunity of the
United States with respect to an action filed under this sec-
tion.
(e) APPEALS.—The United States Court of Appeals for
the Federal Circuit shall have exclusive jurisdiction of any
action filed under this section, regardless of whether the ju-
risdiction of such action is based in whole or part under
this section.
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(f) STATUTE OF LIMITATIONS.—The statute of limita-
tions for any action filed under this section shall be 6 years
after the date of the taking of private property.
(g) ATTORNEYS’ FEES AND COSTS.—The court, in
issuing any final order in any action filed under this sec-
tion, shall award costs of litigation (including reasonable
attorneys’ fees) to any prevailing plaintiff.
SEC. 6. JURISDICTION OF UNITED STATES COURT OF FED-
ERAL CLAIMS AND UNITED STATES DISTRICT
COURTS.
(a) UNITED STATES COURT OF FEDERAL CLAIMS.—
(1) JURISDICTION.—Section 1491(a) of title 28,
United States Code, is amended—
(A) in paragraph (1) by amending the first
sentence 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 Constitution 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 department under sec-
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tion 5 of the Citizens Access to Justice Act of
1998.’’;
(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 de-
claratory relief when appropriate.’’; and
(C) by adding at the end the following new
paragraphs:
‘‘(3) In cases otherwise within its jurisdiction,
the Court of Federal Claims shall also have supple-
mental jurisdiction, concurrent with the courts des-
ignated under section 1346(b), to render judgment
upon any related tort claim authorized under section
2674.
‘‘(4) In proceedings within the jurisdiction of the
Court of Federal Claims which constitute judicial re-
view of agency action (rather than de novo proceed-
ings), the provisions of section 706 of title 5 shall
apply.
‘‘(5) Any claim brought under this subsection
founded upon a property right or privilege secured by
the Constitution, but allegedly infringed or taken by
the United States, shall be ripe for adjudication upon
a final decision rendered by the United States, that
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causes actual and concrete injury to the party seeking
redress. For purposes of this paragraph, a final deci-
sion exists if—
‘‘(A) the United States makes a definitive
decision regarding the extent of permissible uses
on the property that has been allegedly infringed
or taken; and
‘‘(B) one meaningful application to use the
property has been submitted but has not been ap-
proved, and the party seeking redress has ap-
plied for one appeal or waiver which has not
been approved, where the applicable law of the
United States provides a mechanism for appeal
or waiver.
The party seeking redress shall not be required to
apply for an appeal or waiver described in subpara-
graph (B) if no such appeal or waiver is available,
if it cannot provide the relief requested, or if applica-
tion or reapplication to use the property would be fu-
tile. Nothing in this paragraph alters the substantive
law of takings of property, including the burden of
proof borne by the plaintiff.’’.
(2) PENDENCY OF CLAIMS IN OTHER COURTS.—
(A) IN GENERAL.—Section 1500 of title 28,
United States Code is repealed.
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(B) TECHNICAL AND CONFORMING AMEND-
MENT.—The table of sections for chapter 91 of
title 28, United States Code, is amended by
striking out the item relating to section 1500.
(b) DISTRICT COURT JURISDICTION.—
(1) CITIZEN ACCESS TO JUSTICE ACTION.—Sec-
tion 1346(a) of title 28, United States Code, is
amended by adding after paragraph (2) the following:
‘‘(3) Any civil action filed under section 5 of the
Citizens Access to Justice Act of 1998.’’.
(2) UNITED
STATES
AS
DEFENDANT.—Section
1346 of title 28, United States Code, is amended by
adding at the end the following:
‘‘(h)(1) Any claim brought under subsection (a) that
is founded upon a property right or privilege secured by
the Constitution, but was allegedly infringed or taken by
the United States, shall be ripe for adjudication upon a
final decision rendered by the United States, that causes
actual and concrete injury to the party seeking redress.
‘‘(2) For purposes of this subsection, a final decision
exists if—
‘‘(A) the United States makes a definitive deci-
sion regarding the extent of permissible uses on the
property that has been allegedly infringed or taken;
and
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‘‘(B) one meaningful application to use the prop-
erty has been submitted but has not been approved,
and the party seeking redress has applied for one ap-
peal or waiver which has not been approved, where
the applicable law of the United States provides a
mechanism for appeal to or waiver by an administra-
tive agency.
The party seeking redress shall not be required to apply
for an appeal or waiver described in subparagraph (B) if
no such appeal or waiver is available, if it cannot provide
the relief requested, or if application or reapplication to use
the property would be futile.
‘‘(3) Nothing in this subsection alters the substantive
law of takings of property, including the burden of proof
borne by the plaintiff.’’.
(c) DISTRICT COURT CIVIL RIGHTS JURISDICTION;
ABSTENTION.—Section 1343 of title 28, United States Code,
is amending by adding at the end the following:
‘‘(c) Whenever a district court exercises jurisdiction
under subsection (a) in an action in which the operative
facts concern the uses of real property, it shall not abstain
from exercising or relinquish its jurisdiction to a State
court in an action where no claim of a violation of a State
law, right, or privilege is alleged, and where a parallel pro-
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ceeding in State court arising out of the same operative
facts as the district court proceeding is not pending.
‘‘(d) Where the district court has jurisdiction over an
action under subsection (a) in which the operative facts con-
cern the uses of real property and which cannot be decided
without resolution of an unsettled question of State law, the
district court may certify the question of State law to the
highest appellate court of that State. After the State appel-
late court resolves the question certified to it, the district
court shall proceed with resolving the merits. The district
court shall not certify a question of State law under this
subsection unless the question of State law—
‘‘(1) will significantly affect the merits of the in-
jured party’s Federal claim; and
‘‘(2) is patently unclear.
‘‘(e)(1) Any claim or action brought under section
1979 of the Revised Statutes of the United States (42 U.S.C.
1983) to redress the deprivation of a property right or
privilege secured by the Constitution shall be ripe for adju-
dication by the district courts upon a final decision ren-
dered by any person acting under color of any statute, ordi-
nance, regulation, custom, or usage, of any State or terri-
tory of the United States, that causes actual and concrete
injury to the party seeking redress.
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‘‘(2)(A) For purposes of this subsection, a final deci-
sion exists if—
‘‘(i) any person acting under color of any stat-
ute, ordinance, regulation, custom, or usage, of any
State or territory of the United States, makes a defin-
itive decision regarding the extent of permissible uses
on the property that has been allegedly infringed or
taken;
‘‘(ii)(I) one meaningful application, as defined
by the locality concerned within that State or terri-
tory, to use the property has been submitted but has
not been approved, and the party seeking redress has
applied for one appeal or waiver which has not been
approved, where the applicable statute, ordinance,
custom, or usage provides a mechanism for appeal to
or waiver by an administrative agency; or
‘‘(II) one meaningful application, as defined by
the locality concerned within that State or territory,
to use the property has been submitted but has not
been approved, and the disapproval explains in writ-
ing the use, density, or intensity of development of the
property that would be approved, with any conditions
therefor, and the party seeking redress has resubmit-
ted another meaningful application taking into ac-
count the terms of the disapproval, except that—
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‘‘(aa) if no such reapplication is submitted,
then a final decision shall not have been reached
for purposes of this subsection, except as pro-
vided in subparagraph (B); and
‘‘(bb) if the reapplication is not approved,
or if the reapplication is not required under sub-
paragraph (B), then a final decision exists for
purposes of this subsection if the party seeking
redress has applied for one appeal or waiver
with respect to the disapproval, which has not
been approved, where the applicable statute, or-
dinance, custom, or usage provides a mechanism
of appeal or waiver by an administrative agen-
cy; and
‘‘(iii) in a case involving the uses of real prop-
erty, where the applicable statute or ordinance pro-
vides for review of the case by elected officials, the
party seeking redress has applied for but is denied
such review.
‘‘(B) The party seeking redress shall not be required
to apply for an appeal or waiver described in paragraph
(1)(B) if no such appeal or waiver is available, if it cannot
provide the relief requested, or if the application or re-
application would be futile.
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‘‘(3) For purposes of this subsection, a final decision
shall not require the party seeking redress to exhaust judi-
cial remedies provided by any State or territory of the
United States.
‘‘(f) Nothing in subsection (c), (d), or (e) alters the sub-
stantive law of takings of property, including the burden
of proof borne by the plaintiff.’’.
SEC. 7. DUTY OF NOTICE TO OWNERS.
Whenever a Federal agency takes an agency action
limiting the use of private property that may be affected
by this Act (including the amendments made by this Act),
the agency shall give notice to the owners of that property
explaining their rights under this Act and the procedures
for obtaining any compensation that may be due to them
under this Act.
SEC. 8. RULES OF CONSTRUCTION.
Nothing in this Act shall be construed to interfere with
the authority of any State to create additional property
rights.
SEC. 9. EFFECTIVE DATE.
This Act shall take effect on the date of enactment of
this Act and shall apply to any agency action that occurs
on or after such date.