[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 2271 Placed on Calendar Senate (PCS)]






                                                       Calendar No. 459
105th CONGRESS
  2d Session
                                S. 2271

   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, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              July 7, 1998

 Mr. Sessions (for Mr. Hatch) introduced the following bill; which was 
                          read the first time

                              July 8, 1998

            Read the second time and placed on the calendar

_______________________________________________________________________

                                 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, 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 ``Property Rights Implementation 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 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 an owner of real property, 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;
            (4) provide for uniformity in the application of the 
        ripeness doctrine in cases where constitutional rights to use 
        and enjoy real property 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)(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; and
            (5) confirm the proper role of a State or territory to 
        prevent land uses that are a nuisance under applicable law.

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 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 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.
    (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 jurisdiction of such action is 
based in whole or part under this section.
    (f) Statute of Limitations.--The statute of limitations 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.--In issuing any final order in any 
action filed under this section, the court may award costs of 
litigation (including reasonable attorneys' fees) to any prevailing 
plaintiff.

SEC. 6. 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 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 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.
            ``(5)(A) Any claim brought under this subsection founded 
        upon a constitutional right to use and enjoy real property, 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 concrete injury to the 
        party seeking redress.
            ``(B) For purposes of this paragraph, a final decision 
        exists if--
                    ``(i) the United States makes a definitive decision 
                regarding the extent of permissible uses on real 
                property that has been allegedly infringed or taken; 
                and
                    ``(ii) one meaningful application to use the 
                property has been submitted but has not been approved 
                within a reasonable time, and the party seeking redress 
                has applied for one appeal or waiver which has not been 
                approved within a reasonable time, where the applicable 
                law of the United States provides a mechanism for 
                appeal or waiver.
            ``(C)(i) The party seeking redress shall not be required to 
        submit any application or reapplication, or apply for any 
        appeal or waiver required under this section, if the district 
        court determines that such action would be futile.
            ``(ii) In this subparagraph, the term `futile' means the 
        inability of an owner of real property to seek or obtain 
        approvals to use such real property, and the hardship endured 
        by such inability, as defined under applicable land use and 
        environmental law.
            ``(D) 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.
                    (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.--
            (1) Citizen access to justice action.--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 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)(A) For purposes of this subsection, a final decision exists 
if--
            ``(i) the United States makes a definitive decision 
        regarding the extent of permissible uses on the property that 
        has been allegedly infringed or taken; and
            ``(ii) one meaningful application to use the property has 
        been submitted but has not been approved within a reasonable 
        time, and the party seeking redress has applied for one appeal 
        or waiver which has not been approved within a reasonable time, 
        where the applicable law of the United States provides a 
        mechanism for appeal to or waiver by an administrative agency.
    ``(B)(i) The party seeking redress shall not be required to submit 
any application or reapplication, or apply for any appeal or waiver 
required under this section, if the district court determines that such 
action would be futile.
    ``(ii) In this subparagraph, the term `futile' means the inability 
of an owner of real property to seek or obtain approvals to use such 
real property, and the hardship endured by such inability, as defined 
under applicable land use and environmental law.
    ``(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), the court shall not abstain from or relinquish 
jurisdiction to a State court because the party seeking redress--
            ``(1) brings a prior or concurrent proceeding before a 
        State, territory, or local tribunal as required under 
        subsection (e)(3);
            ``(2) asserts claims under State or local law pendent to 
        and arising from the same core of operative facts as a claim 
        for the taking or real property; or
            ``(3) asserts a claim for the taking of real property that 
        requires interpretation of State, territory, or local laws.
    ``(d) A district court that exercises jurisdiction under subsection 
(a) in an action in which the operative facts concern the uses of real 
property may abstain where the party seeking redress--
            ``(1) has not submitted a meaningful application, as 
        defined by the locality concerned within that State or 
        territory, to use such real property; and
            ``(2) challenges whether an action of the applicable 
        locality exceeds the authority conferred upon the locality 
        under the applicable zoning or planning enabling statute of the 
        State or territory.
    ``(e)(1) 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 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 appellate court resolves the question certified to it, 
the district court shall proceed with resolving the merits.
    ``(2) In making a decision whether to certify a question of State 
law under this subsection, the district court may consider whether the 
question of State law--
            ``(A) will significantly affect the merits of the injured 
        party's Federal claim; and
            ``(B) is patently unclear.
    ``(f)(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 right or privilege to use and enjoy real property as 
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 
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;
            ``(ii)(I) one meaningful application, as defined by 
        applicable law concerned within that State or territory, to use 
        the property has been submitted but has not been approved 
        within a reasonable time, and the party seeking redress has 
        applied for one appeal or waiver which has not been approved 
        within a reasonable time, 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 within a 
        reasonable time, and the disapproval at a minimum specifies in 
        writing the range of use, density, or intensity of development 
        of the property that would be approved, with any conditions 
        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 within 
                a reasonable time, 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 has not been 
                approved within a reasonable time, where the applicable 
                statute, ordinance, custom, or usage provides a 
                mechanism of appeal or waiver by an administrative 
                agency; and
            ``(iii) in a case involving the uses of real property, 
        where the applicable statute or ordinance provides for review 
        of the case by elected officials, the party seeking redress has 
        applied for but is denied such review.
    ``(B)(i) The party seeking redress shall not be required to submit 
any application or reapplication, or apply for any appeal or waiver as 
required under this subsection, upon determination by the district 
court that such action would be futile.
    ``(ii) In this subparagraph, the term `futile' means the inability 
of an owner of real property to seek or obtain approvals to use such 
real property, and the hardship endured by such inability, as defined 
under applicable land use and environmental law.
    ``(3) For purposes of this subsection, a final decision shall not 
require the party seeking redress to exhaust judicial remedies provided 
by any State or territory of the United States.
    ``(g) Nothing in subsection (c), (d), (e), or (f) alters the 
substantive law of takings of property, including the burden of proof 
borne by the plaintiff.''.

SEC. 7. ATTORNEYS FEES FOR LOCALITIES.

    Section 722(b) of the Revised Statutes (42 U.S.C. 1988(b)) is 
amended--
            (1) by striking ``In any action'' and inserting ``(1) 
        Subject to paragraphs (2) and (3), in any action''; and
            (2) by adding at the end the following:
            ``(2) In an action arising under section 1979 of the 
        Revised Statutes (42 U.S.C. 1983), where the taking of real 
        property is alleged, a district court, in its discretion, may 
        hold the party seeking redress liable for a reasonable 
        attorney's fee and costs where the takings claim is not 
        substantially justified, unless special circumstances make an 
        award of such fees unjust. Whether or not the position of the 
        party seeking redress was substantially justified shall be 
        determined on the basis of any administrative and judicial 
        record, as a whole, which is made in the district court 
        adjudication for which fees and other expenses are sought.
            ``(3) In an action arising under section 1979 of the 
        Revised Statutes (42 U.S.C. 1983) where the taking of real 
        property is alleged, the district court shall decide any motion 
        to dismiss such claim on an expedited basis. Where such a 
        motion is granted and the takings claim is dismissed with 
        prejudice, the non-moving party may be liable for a reasonable 
        attorney's fee and costs at the discretion of the district 
        court, unless special circumstances make an award of such fees 
        unjust.''.

SEC. 8. DUTY OF NOTICE TO DEFENDANTS.

    Section 1979 of the Revised Statutes (42 U.S.C. 1983) is amended--
            (1) by inserting ``(a)'' before ``Every person''; and
            (2) by adding at the end the following:
    ``(b) A party seeking redress under this section for a taking of 
real property without the payment of compensation shall not commence an 
action in district court before 60 days after the date on which written 
notice has been given to any potential defendant.''.

SEC. 9. 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. 10. RULES OF CONSTRUCTION.

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

SEC. 11. 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.
                                     





                                                       Calendar No. 459

105th CONGRESS

  2d Session

                                S. 2271

_______________________________________________________________________

                                 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, and for other purposes.

_______________________________________________________________________

                              July 8, 1998

            Read the second time and placed on the calendar