H.R. 4772 , styled the Private Property Rights Implementation Act of 2006, combines process and substance. Its process provisions would ease or eliminate certain current hurdles to a federal takings or substantive due process claim being adjudicated in federal court on the merits, where government interference with property rights is alleged. Its substantive provisions would have the effect of facilitating success on the merits when such claims are brought, through "clarifications" of those same takings and substantive due process constraints. The bill was reported by the House Committee on the Judiciary on September 14, 2006 and passed the House on September 29, 2006 (231-181). This report was prepared on the possibility that the Senate may introduce similar legislation during the lame-duck session of 2006, allowing some version of either bill to move toward enactment. Although H.R. 4772 has previous incarnations, the current congressional interest in the bill largely stems from the Supreme Court's 2005 decision in Kelo v. City of New London . That decision dealt with a related, but very different matter. Although H.R. 4772 seeks to facilitate takings lawsuits by land owners aggrieved by government interference, Kelo addressed the permissible public purposes underlying direct condemnation suits by governments seeking to acquire land. Yet to be sure, both Supreme Court decision and bill speak to property rights and aspects of the Fifth Amendment Takings Clause's protection of property rights, and public concerns about property rights kindled by the decision plainly have enhanced interest in the bill. This report comments only on the legal and legally related policy issues raised by H.R. 4772 . H.R. 4772 's process features, as noted, seek to facilitate access to the federal courts by property owners with certain federal constitutional claims. The process features do not affect the property owner's access to state courts for adjudicating those federal claims, which courts remain generally available. Rather, they offer the property owner a second forum for federal claims. The key process features of the bill are as follows: 1. section 2 : in an action under 28 U.S.C. § 1343 in which the facts concern the uses of real property, limits when a federal district can abstain from deciding the action, requires that the court exercise jurisdiction even if the plaintiff has not first pursued his state-court remedies , and limits when the court can " certify " a related question of state law to the state courts (asking the state court to clarify a point of state law and report back to the federal court), and 2. sections 2-4 : provides that takings actions brought under 42 U.S.C. § 1983 (against political subdivisions of states ) or under the Tucker Acts (against the United States) shall be ripe for adjudication upon a " final decision, " which exists if (a) the government makes a definitive decision as to the permissible uses of the property, and (b) one meaningful application to use the property has been denied and the property owner has applied for but been denied one waiver and one appeal, unless unavailable or futile. These process features closely track approaches used in the earlier bills. There are a host of small changes, however. For example, H.R. 1534 (105 th Congress) defines "final decision" to require the property owner to seek, but be denied, one waiver or one appeal. In contrast, H.R. 2372 (106 th Congress) and H.R. 4772 require one waiver and one appeal, seemingly a more demanding ripeness standard. H.R. 4772 's substantive features are as follows: 1. sections 5-6 : takings actions brought under 42 U.S.C. § 1983 (against political subdivisions of states) or under the Tucker Acts (against the United States) are subject to two "clarifications": (1) conditions or exactions on land development approvals shall be subject to the applicable takings test regardless of whether legislative or adjudicatory in nature, or whether in the form of a monetary fee or land dedication, and (2) each subdivided lot in a subdivision shall be regarded as a separate parcel, if so treated under state law, and 2. sections 5-6 : substantive due process actions under 42 U.S.C. § 1983 (against political subdivisions of states) or against the United States, where based on property deprivation, are subject to a "clarification": the judgment shall be based on whether the government action is " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. " These substantive provisions have no counterpart in the earlier bills. Both H.R. 2372 (106 th Congress) and H.R. 4772 impose a "duty of notice to owners"—requiring federal agencies, when they limit the use of property in a manner that may be affected by the bill, to give notice to property owners explaining their rights under the bill. Finally, only H.R. 4772 contains a severability clause, stating that if any of the bill's provisions or their applications are held invalid, other provisions and their applications shall not be affected. Abstention is a discretionary doctrine under which federal judges may decline to decide cases that are otherwise properly before them. Grounded in principles of comity and cooperative federalism, abstention holds that federal courts should not intrude on sensitive state issues unless necessary. Rather, say proponents of abstention, those controversies should be settled in the state courts. Thus, abstention is an exception to the otherwise "virtually unflagging obligation of the federal courts to exercise the jurisdiction given them." Abstention is an option for a federal judge when a local land use regulation is attacked in federal court as a taking. The federal judge may defer to the state courts using any of three types of abstention. Pullman abstention arises in federal-court challenges to state action in which resolution of an unsettled state law issue could eliminate the need to decide (or could narrow) a difficult federal question. Burford abstention counsels against federal adjudication in cases touching on a complex state regulatory scheme concerning important matters of state policy more properly addressed by state courts. Colorado River abstention instructs federal courts not to dismiss or stay a federal action in deference to a concurrent state proceeding except in "exceptional" circumstances. Courts are known to blend the various types of abstention. H.R. 4772 directs that federal courts adjudicating civil rights claims involving real property shall not abstain if the plaintiff does not allege a state law violation and no parallel proceeding is pending in state court. This narrows the grounds on which abstention currently may be invoked. Moreover, it is likely that this would preclude abstention in most cases since plaintiff, to ensure that abstention does not occur, would have only to delete any claims of state law violation from his complaint. In 1985, the Supreme Court announced that a Fifth Amendment takings claim against a state is ripe for federal court adjudication only when the plaintiff has exhausted his state court remedies, if available and not futile. The Court reaffirmed this state exhaustion prerequisite in several later decisions. The requirement has been a perennial bete noir of real estate developers and other property rights advocates, who contend that state courts in many states are less friendly to their interests than federal courts. Some scholars perceive a lesser institutional competence or neutrality in state courts to handle federal constitutional claims, though we are unaware of any authoritative, empirical study on this point. In any event, property owners and developers argue that notwithstanding the availability of state courts for vindicating their Fifth Amendment takings claims, there is a right, given the federal nature of the claim, to being able to file in the first instance in a federal forum as well. Landowners further complain that once the state exhaustion prerequisite is met, relitigating the takings claim in federal court has been barred under any of several legal doctrines. These doctrines, based on federal-state comity and considerations of judicial economy by avoiding duplicative litigation, are the federal Full Faith and Credit Act, res judicata (claim preclusion), collateral estoppel (issue preclusion), and the Rooker-Feldman doctrine. The net effect of each is the same: the landowner gets no "second bite at the apple" in federal court. Nor, says the Supreme Court, does this offend any notion that persons asserting federal rights must have access to federal courts. In a recent takings case raising this issue, the Court noted that it has "repeatedly held ... that issues actually decided in valid state-court judgments may well deprive plaintiffs of the 'right' to have their federal claims relitigated in federal court," and that "[t]his is so even when the plaintiff would have preferred not to litigate in state court, but was required to do so ...." H.R. 4772 proposes to eliminate the state exhaustion requirement, so that a takings claimant could go initially to federal court, bypassing the state courts. The question, however, is whether state exhaustion is mandated by the terms of the Fifth Amendment Takings Clause, in which case Congress cannot eliminate it by statute. The alternative is that the requirement is merely "prudential"—imposed as a matter of judicial discretion—in which case Congress can nullify it by statute. The Supreme Court has come down on both sides of the constitutional versus prudential issue. In the 1985 Supreme Court decision announcing the state exhaustion rule, the Court explained that a property owner aggrieved by a state property use restriction "has not suffered a violation of the Just Compensation Clause" until he unsuccessfully seeks compensation through state procedures, and further that "[t]he nature of the constitutional right" requires state exhaustion first. And in 1999, the Court noted that "had an adequate postdeprivation remedy been available, [the property owner] would have suffered no constitutional injury from the taking alone."