[Congressional Record Volume 143, Number 137 (Monday, October 6, 1997)]
[Senate]
[Pages S10428-S10429]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HATCH (for himself, Mr. Reid, Mr. Coverdell, Mr. Thurmond, 
        Mr. Gramm, and Mr. Burns):
  S. 1256. A bill to simplify and expedite access to the Federal courts 
for injured parties whose rights and privileges, secured by the U.S. 
Constitution, have been deprived by final actions of Federal Agencies, 
or other Government officials 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 U.S. 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; to the Committee on the 
Judiciary.


               the citizens access to justice act of 1997

  Mr. HATCH. Mr. President, I am pleased today to introduce the 
Citizens Access to Justice Act of 1997. Many Members of the Senate have 
as a paramount concern the protection of individual rights protected by 
our Constitution.
  One particular right--the right to own and use private property free 
from arbitrary governmental action--is increasingly under attack from 
the regulatory state. Indeed, despite the constitutional requirement 
for the protection of property rights, the America of the late 20th 
century has witnessed an explosion of Federal regulation that has 
jeopardized the private ownership of property with the consequent loss 
of individual liberty.
  Under current Federal regulations, thousands of Americans have been 
denied the right to the quiet use and enjoyment of their private 
property. Arbitrary bureaucratic enforcement of Federal and State 
regulatory programs has prevented Americans from building homes and 
commercial buildings, plowing fields, repairing barns and fences, 
clearing brush and fire hazards, felling trees, and even removing 
refuse and pollutants, all on private property.
  To make matters worse, many property owners often are unable to 
safeguard their rights because they effectively are denied access to 
Federal courts. In a society based upon the rule of law, the ability to 
protect property and other rights is of paramount importance. Indeed, 
it was Chief Justice John Marshall, who in the seminal 1803 cast of 
Marbury versus Madison, observed that the ``government of the United 
States has been emphatically termed a government of laws, and not of 
men. It will cease to deserve this high appellation, if the laws 
furnish no remedy for the violation of a vested right.'' Despite this 
core belief of John Marshall and other Founders, the ability of 
property owners to vindicate their rights in court today is being 
hampered by the overlapping and confusing jurisdiction of the Court of 
Federal Claims and the Federal district courts over fifth amendment 
property rights claims. It is also frustrated by localities which 
sometimes create labyrinths of administrative hurdles that property 
owners must jump through before being able to bring a claim in Federal 
court to vindicate their Federal constitutional rights. CAJA seeks to 
remedy these situations. Let me explain.
  The Tucker Act, which waives the sovereign immunity of the United 
States by granting the Court of Federal Claims jurisdiction to 
entertain monetary claims against the United States, actually 
complicates the ability of a property owner to vindicate their right to 
just compensation for a Government action that has caused a taking. The 
law currently forces a property owner to elect between equitable relief 
in the Federal district court and monetary relief in the Court of 
Federal Claims. Further difficulty arises when the law is used by the 
Government to urge dismissal in the district court on the ground that 
the plaintiff should seek just compensation in the Court of Federal 
Claims, and is used to urge dismissal in the Court of Federal Claims on 
the ground that plaintiff should first seek equitable relief in the 
district court.

  This Tucker Act shuffle is aggravated by section 1500 of the Tucker 
Act, which denies the Court of Federal Claims jurisdiction to entertain 
a suit which is pending in another court and brought by the same 
plaintiff. Section 1500 is so poorly drafted and has brought so many 
hardships, that Justice Stevens, in Keene Corporation versus United 
States, 113 S.Ct. 2035, 2048 (1993), has called for its repeal or 
amendment. CAJA would resolve the jurisdictional muddle by both 
repealing section 1500 and by eliminating the

[[Page S10429]]

Tucker Act shuffle, thereby granting to both courts concurrent 
jurisdiction to fully adjudicate takings claims. To assure uniformity 
in property rights law, appeals from both courts would be heard by the 
Court of Appeals for the Federal Circuit.
  Adding to this jurisdictional problem, is the misapplication by many 
courts of the finality doctrine. These courts have required claimants 
to jump through endless administrative, appellate and other hoops, 
sometimes created by agencies to retard the legitimate use and 
development of property, before these courts will adjudicate claims. 
This has resulted in increased costs to the taxpayers and has impeded 
innocent property owners from vindicating their constitutionally 
protected rights. Recently, the U.S. Supreme Court in Suitum versus 
Tahoe Regional Planning Agency--1997, struck as an impermissible burden 
on property rights such administrative and appellate schemes that make 
it overly difficult for property owners to protect their rights in 
court. CAJA would codify the Suitum case, thereby providing courts with 
guidance on the application of the finality doctrine.
  Finally, I must emphasize that CAJA certainly does not create any 
substantive rights. The definition of property, as well as what 
constitutes a taking under the just compensation clause of the fifth 
amendment, is left to the courts to define. The bill would not change 
existing case law's ad hoc, case-by-case definition of regulatory 
takings. Instead, it would provide a procedural fix to the litigation 
muddle that delays and increases the cost of litigating a fifth 
amendment taking case. All CAJA does is to provide for fair procedures 
to allow property owners the means to safeguard their rights by having 
their day in court.
  I ask for your support to allow just claimants their day in court.
                                 ______