[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 1256 Introduced in Senate (IS)]







105th CONGRESS
  1st Session
                                S. 1256

   To simplify and expedite access to the Federal courts for injured 
   parties whose rights and privileges, secured by the United States 
Constitution, have been deprived by final actions of Federal agencies, 
 or other government officials or entities acting under color of State 
law; to prevent Federal courts from abstaining from exercising Federal 
  jurisdiction in actions in which no State law claim is alleged; to 
    permit certification of unsettled State law questions that are 
 essential to Federal claims arising under the Constitution; to allow 
for efficient adjudication of constitutional claims brought by injured 
 parties in the United States district courts and the Court of Federal 
  Claims; to clarify when government action is sufficiently final to 
 ripen certain Federal claims arising under the Constitution; and for 
                            other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 6, 1997

  Mr. Hatch (for himself, Mr. Reid, Mr. Coverdell, Mr. Thurmond, Mr. 
  Gramm, and Mr. Burns) introduced the following bill; which was read 
          twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To simplify and expedite access to the Federal courts for injured 
   parties whose rights and privileges, secured by the United States 
Constitution, have been deprived by final actions of Federal agencies, 
 or other government officials or entities acting under color of State 
law; to prevent Federal courts from abstaining from exercising Federal 
  jurisdiction in actions in which no State law claim is alleged; to 
    permit certification of unsettled State law questions that are 
 essential to Federal claims arising under the Constitution; to allow 
for efficient adjudication of constitutional claims brought by injured 
 parties in the United States district courts and the Court of Federal 
  Claims; to clarify when government action is sufficiently final to 
 ripen certain Federal claims arising under the Constitution; and for 
                            other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Citizens Access to Justice Act of 
1997''.

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 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 (commonly 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 fourteenth amendments of the United States 
        Constitution;
            (3) current law--
                    (A) has no sound basis for splitting jurisdiction 
                between two courts in cases where constitutionally 
                protected property rights are at stake;
                    (B) adds to the complexity and cost of takings and 
                litigation, adversely affecting taxpayers 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 Government, 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 Federal 
                judge can decide whether local government has denied 
                property rights safeguarded by the United States 
                Constitution;
            (4) property owners cannot fully vindicate property rights 
        in one lawsuit and their claims may be time barred in a 
        subsequent action;
            (5) property owners should be able to fully recover 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 (commonly 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 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 complex, costly, 
        repetitive and unconstitutional permitting, 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 claimants 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 violation 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 constitutionally 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 judicial 
        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 requirement 
        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 
        fourteenth 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 providing that a 
        final agency decision may be adjudicated 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) the property owner seeks a waiver by or brings 
                an appeal to an administrative agency from such denial.

SEC. 4. DEFINITIONS.

    In this Act, the term--
            (1) ``agency action'' means any action, inaction, or 
        decision taken by a Federal agency or other government agency 
        that at the time of such action, inaction, 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, agency, 
        independent agency, or instrumentality of the United States, 
        including any military department, Government corporation, 
        Government-controlled corporation, 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 promulgated; 
                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 ownership, 
        alienability, possession, or use of private property 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.

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 that 
adversely affects the owner's interest in private property 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 agency affecting private 
property rights.
    (c) Election.--The plaintiff may elect to file an action 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 section.

SEC. 6. STANDING AND EXHAUSTION OF REMEDIES.

    (a) In General.--Subject to subsection (b), any person adversely 
affected by a Federal agency action shall have standing to challenge 
and seek judicial review of that action without first exhausting 
administrative remedies.
    (b) Adjudication.--
            (1) In general.--Any civil action filed under section 5 
        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) Final decision.--
                    (A) In general.--For purposes of this subsection, a 
                final decision exists if--
                            (i) the United States, acting under Federal 
                        statute or regulation, makes a definitive 
                        decision regarding the extent of permissible 
                        land uses on the property that has allegedly 
                        been infringed or taken, without regard to any 
                        uses that may be permitted elsewhere; and
                            (ii)(I) one meaningful application to use 
                        the property has been submitted for a final 
                        decision but is denied; and
                            (II) if the pertinent Federal statute or 
                        regulation provides for a right of appeal to or 
                        waiver by the pertinent Federal agency from the 
                        final decision regarding such property, the 
                        party seeking redress has brought 1 appeal or 
                        sought 1 waiver from such a final decision.
                    (B) Appeal or waiver.--For purposes of subparagraph 
                (A)(ii), the party seeking redress shall not be 
                required to apply for such an appeal or waiver if--
                            (i) no such process is available;
                            (ii) it cannot provide the relief 
                        requested; or
                            (iii) the prospects for success are 
                        reasonably unlikely and intervention by the 
                        district court or the United States Court of 
                        Federal Claims under this section is warranted 
                        to decide the merits.

SEC. 7. APPEALS.

    The United States Court of Appeals for the Federal Circuit shall 
have exclusive jurisdiction of any action filed under section 5, 
regardless of whether the jurisdiction of such action is based in whole 
or part under such section.

SEC. 8. JURISDICTION OF UNITED STATES COURT OF FEDERAL 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 section 5 
                of the Citizens Access to Justice Act of 1997.'';
                    (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 the following new 
                paragraphs:
            ``(3) In cases otherwise within its jurisdiction, the Court 
        of Federal Claims shall also have supplemental jurisdiction, 
        concurrent with the courts designated 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 review of agency 
        action (rather than de novo proceedings), the provisions of 
        section 706 of title 5 shall apply.''.
            (2) Pendency of claims in other courts.--
                    (A) In general.--Section 1500 of title 28, United 
                States Code is repealed.
                    (B) Technical and conforming amendment.--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.--Section 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 1997.''.
    (c) District Court Civil Rights Jurisdiction; Abstention.--Section 
1343 of title 28, United States Code, is amended--
            (1) by redesignating subsection (b) as subsection (e); and
            (2) by inserting after subsection (a) the following new 
        subsections:
    ``(b)(1) Any claim or action brought under section 1979 of the 
Revised Statutes (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 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 concrete injury to the party seeking redress.
    ``(2)(A) For purposes of this subsection, a final decision exists 
if--
            ``(i) any person acting under color of any statute, 
        ordinance, regulation, custom, or usage, of any State or 
        territory of the United States, makes a definitive decision 
        regarding the extent of permissible uses on the property that 
        has been allegedly infringed or taken, without regard to any 
        uses that may be permitted elsewhere; and
            ``(ii)(I) one meaningful application to use the property 
        has been submitted but is denied; and
            ``(II) if the applicable statute, ordinance, regulation, 
        custom, or usage provides for a right of appeal to or waiver by 
        an administrative agency from the final decision regarding the 
        property, the party seeking redress has brought 1 appeal or 
        sought 1 waiver from such a final decision.
    ``(B) For purposes of subparagraph (A)(ii), the party seeking 
redress shall not be required to apply for such an appeal or waiver 
if--
            ``(i) no such process is available;
            ``(ii) it cannot provide the relief requested; or
            ``(iii) the prospects of success are reasonably unlikely 
        and intervention by the United States District Court is 
        warranted to decide the merits.
    ``(C) For purposes of this subsection, a `final decision' for a 
ripe claim under section 1979 of the Revised Statutes (42 U.S.C. 1983) 
shall not require the party seeking redress to exhaust judicial 
remedies provided by any State or Territory.
    ``(c) Whenever a district court exercises jurisdiction under 
subsection (a), in an action where 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 proceeding 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), where the operative facts concern the uses of 
real property, that cannot be decided without resolution of a 
significant but 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. 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 so unclear and obviously susceptible to a limiting 
        construction as to render premature a decision on the merits of 
        the constitutional or legal issue in the case.''.

SEC. 9. STATUTE OF LIMITATIONS.

    The statute of limitations for any action filed under section 5 
shall be 6 years from the date of the taking of private property.

SEC. 10. ATTORNEY'S FEES AND COSTS.

    The court, in issuing any final order in any action filed under 
section 5, shall award costs of litigation (including reasonable 
attorney and expert witness fees) to any prevailing plaintiff.

SEC. 11. RULES OF CONSTRUCTION.

    Nothing in this Act shall be construed to interfere with the 
authority of any State to create additional property rights.

SEC. 12. 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.
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