[Congressional Record Volume 144, Number 25 (Wednesday, March 11, 1998)]
[House]
[Pages H1087-H1094]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 TUCKER ACT SHUFFLE RELIEF ACT of 1997

  The SPEAKER pro tempore. Pursuant to House Resolution 328 and rule 
XXIII, the Chair declares the House in the Committee of the Whole House 
on the State of the Union for consideration of the bill, H.R. 992.

                              {time}  1738


                     In the Committee of the Whole

  Accordingly the House resolved itself into the Committee of the Whole 
House on the State of the Union for the consideration of the bill (H.R. 
992) to end the Tucker Act shuffle, with Mr. Ewing in the chair.
  The Clerk read the title of the bill.
  The CHAIRMAN. Pursuant to the rule, the bill is considered as having 
been read the first time.
  Under the rule, the gentleman from Texas (Mr. Smith) and the 
gentleman from North Carolina (Mr. Watt), each will control 30 minutes.
  The Chair recognizes the gentleman from Texas (Mr. Smith).
  Mr. SMITH of Texas. Mr. Chairman, I yield myself such time as I may 
consume.
  The issues we discuss today are those of equity and fairness. Every 
homeowner and every property owner across America deserves to have 
their day in court, and not just in court but in the right court. Many 
legislative initiatives are identified with an individual. We have 
Megan's Law, the Ryan White Act and the Ricky Ray bill.
  Today we consider H.R. 992, the Tucker Act Shuffle Relief Act. Maybe 
we should call it the Narromore Act or the Presault Act or any of the 
other names of the property owners whose cases demonstrate the real 
need for this legislation.
  W.O. and Eliza Narromore's property was flooded as a result of the 
government's operation of the Painted Rock Dam in Arizona. They first 
filed suit in 1980 in an attempt to force the United States to stop 
flooding their land. In 1988, their case had gone to the appeals court, 
and then had been sent back to the lower court for retrial. At that 
trial, the United States moved for dismissal of the case, saying the 
Narromores' claim should have been for compensation to the court of 
Federal claims. The Federal circuit agreed with the government and 
transferred the case to the court of Federal claims in 1992, sending 
the Narromores back to square one again. Today, 17 years later, their 
case is still pending.
  In 1981, Paul Presault sued the State of Vermont to reclaim a strip 
of land that had been used by the State to run a government-operated 
railroad through his front yard. In 1989, the Supreme Court sent Mr. 
Presault back to square one because of the Tucker Act. Sixteen years 
later, after again going all the way to the Supreme Court, Mr. Presault 
is back in the court of Federal claims awaiting yet another hearing.
  These are just a couple of the horror stories that demand equity and 
fairness. Property owners across America should not be tossed back and 
forth by the courts when they are simply trying to assert their fifth 
amendment property rights.
  H.R. 992 seeks to provide a solution to an unfair judicial maze that 
often prevents private property owners from having their day in court. 
An individual who seeks to contest a government taking or an 
infringement of his or her property rights currently must deal with 
unreasonable obstacles and costs in negotiating his or her way through 
the legal maze built by the Tucker Act.
  Current law denies the court of Federal claims authority to hear a 
claim for injunctive relief and denies the U.S. district courts the 
authority to hear claims for monetary relief over $10,000. Because of 
this split jurisdiction, no one court can provide complete relief to a 
property owner whose property has been taken. An owner can choose to 
seek only one kind of relief or must go to the expense of seeking 
relief from both courts. In addition, the Federal Government often 
claims that property owners have sued in the wrong court, bouncing 
private property owners back and forth yet once again between the two 
courts.
  We may hear some argue that we should end the Tucker Act Shuffle by 
giving only U.S. district courts the ability to grant complete relief 
in takings cases. This is the wrong approach. We should not discard the 
valuable resource of the court of Federal claims's expertise or its 
large body of case law, compiled over time, by denying the court the 
ability to hear takings claims for both monetary and equitable relief.
  Why not give property owners the option of going to the court that 
they think is best? Why should the government tell private property 
owners where to go?
  This legislation provides no new cause of action. Instead, it merely 
creates an option to go either to the court of Federal claims or to the 
U.S. district courts for all the plaintiff's remedies concerning only 
fifth amendment private property takings cases.
  We do not change the substantive law that defines a taking. We leave 
to it current law to determine whether there is in fact a legal claim.
  There have been concerns voiced about giving an Article III court's 
power to an Article I court, that it would somehow be unconstitutional. 
The answer is, both courts are constitutional. Article III powers have 
been given to Article I courts many times without a detrimental result 
to the court system or to the Constitution; and H.R. 992 extends 
injunctive relief powers to the court of Federal claims only in private 
property takings litigation.
  Furthermore, the bill directs that all appeals, whether from the U.S. 
district court or the court of Federal claims, will go to the same U.S. 
court of appeals for the Federal circuit which is in an Article III 
court.
  I understand that some Members have concerns that H.R. 992 would 
override so-called preclusive review provisions of some environmental 
statutes. In order to reassure my colleagues that this bill will not 
modify any environmental statutes, I will be offering an amendment 
stating that H.R. 992 does not override any preclusive review provision 
in Federal law. This legislation simply allows private property owners 
to go to either court for a complete remedy of a takings claim.
  H.R. 992 does not allow litigants to challenge agency action in 
several different courts. Should the plaintiff choose to proceed with 
their case under this act, once the plaintiff chooses one of the two 
courts, the case remains in that court only. Private property owners 
should be given the option and the opportunity to assert their 
constitutional rights in the court of their choice without being 
treated like a ping pong ball.

                              {time}  1745

  Every property owner in America has the right to obtain a timely 
resolution one way or the other of their takings claims. They deserve 
to have their day in court and in the right court, which is the court 
of their own choosing.
  Among many organizations, the Chamber of Commerce, the realtors and 
the home builders support this legislation. I encourage my colleagues 
on both sides of the aisle to vote for this bill and support the right 
of every property owner in America to have their claim heard in either 
court.
  Mr. Chairman, I yield such time as he may consume to the gentleman 
from New York (Mr. Solomon), chairman of the Committee on Rules.
  Mr. SOLOMON. Mr. Chairman, I thank the gentleman for yielding this 
time, and today I rise in the strongest

[[Page H1088]]

possible support for this bill that is introduced by my good friend, 
the gentleman from Texas (Mr. Smith), and I sing his praises. This is a 
bill that I came here 20 years ago to see enacted into law and finally 
we are going to have that opportunity.
  This legislation represents a very significant step forward in 
relieving the burdens facing Americans who own property and seek 
compensation for a taking by the Federal Government. We are all 
familiar with stories of private property owners whose land values have 
been disastrously affected by unbridled government regulation. 
Certainly up in the Adirondack Mountains, where I live, that is so.
  Using wetlands restrictions or scenic easements, the government 
leaves landowners as custodians of their unused land and robs them of 
their livelihood in too many cases. To find relief from these takings, 
property land owners such as farmers, small businessmen and homeowners 
put their trust in the courts to sort out the mess that environmental 
regulation has made of their lives. But as we all know too well, going 
to court merely complicates their problems and costs money that they 
cannot actually afford.
  Currently, private property owners have two options to litigate their 
takings cases. They can seek monetary relief in the U.S. Court of 
Federal Claims, very expensive; or injunctive relief in a Federal 
District Court, and that is very expensive, especially for a farmer 
that might have total income of only $10,000 or $12,000 a year. A 
property owner must choose between those two courts because of the 
Tucker Act. This act splits the jurisdiction of takings cases between 
the Claims and District Courts, requiring a landowner to shuffle back 
and forth to find relief.
  On top of this restriction, section 1500 of the Tucker Act prohibits 
the Claims Court from even considering a suit that is pending in 
another court. In many cases, as these property owners find out, the 
government often claims that they have sued in the wrong court, 
bouncing the landowners between the two courts, again costing money 
that these people cannot afford.
  For small property owners with limited financial means and time 
constraints, this shuffle makes it impossible for them to even hope to 
get some kind of relief. By failing to resolve this situation, we deny 
the constitutional rights of these property owners.
  As my colleague from Texas has ably explained, this bill would put an 
end to some of this confusion. The bill gives both the District Courts 
and the Court of Federal Claims concurrent jurisdiction to hear all 
claims relating to property rights. And through this bill, our 
constituents can achieve complete relief of their takings cases in just 
one court and stop this endless game of judicial ping-pong.
  To further resolve the difficulties caused by section 1500, this bill 
would repeal that section. This bill is an efficient and an effective 
solution to a difficult problem. Without some sort of relief, 
landowners throughout the country will continue to languish in court 
for years and years and years as they are shuffled back and forth 
between District to Claims Courts by government attorneys.
  Mr. Chairman, private property takings cases have become the normal 
way of business for Federal Government agencies in all too many cases. 
Without the just compensation that the Fifth Amendment requires, 
private property rights are continually being violated by executive 
branch agencies that have run amuck throughout this country.
  By abusing the Fifth Amendment and chipping away at these rights, we 
assault the very fabric of our society. H.R. 992 will begin to restore 
the Fifth Amendment and guarantee the private property rights of all 
American citizens. By supporting this bill, we can put an end to the 
Tucker Act shuffle and help private property owners resolve their 
litigation in a timely manner and, more than that, in a manner that 
they can afford.
  Mr. Chairman, I would again sing the praises of the gentleman from 
Texas for bringing this legislation to the floor. Let us hope and pray 
it goes through the Senate and is signed into law. I urge support of 
the bill.
  Mr. WATT of North Carolina. Mr. Chairman, I yield myself such time as 
I may consume.
  I want to join with the gentleman from New York (Mr. Solomon) in 
paying a tribute to my colleague, the gentleman from Texas (Mr. Smith), 
for bringing a bill to the floor designed to address a serious issue. 
The difference between that gentleman's part of this debate and my part 
of the debate is not in the issue of whether a problem exists. We both 
agree that citizens of our country should not be shuffled back and 
forth from one court to another. That is not an area of disagreement 
that we have. The area of disagreement is how we solve that shuffle and 
eliminate the necessity of having to shuffle back and forth.
  Our position on this side is that the problem needs to be solved, 
deserves to be solved, but must be solved in a constitutional way. And 
our position is that the bill of the gentleman from Texas does not 
resolve this issue in a constitutional way, and I will elaborate on 
that some more later in this debate.
  Second, our position is that the solution that is proposed under this 
bill, in addition to being an unconstitutional solution, is a solution 
that would encourage forum shopping, and that is something that we 
should not be encouraging as a Congress.
  Third, the solution that has been offered under this bill, and I 
believe the gentleman from Texas is going to correct this by offering 
an amendment which we will support, but as the bill is currently 
structured, the solution that is currently proposed would eliminate 
some expedited review under the law and delay disposition of cases that 
now get expedited review and consideration, and we think that is a real 
problem.
  The fourth problem that we have with this proposed solution is that, 
as the gentleman from Texas has asserted, we want to speed up the 
process of getting justice and decisions in these cases. We do not want 
to slow down the process. And we believe this solution will simply slow 
down the process. Because if there is a question on the resolution, 
about the constitutionality of it, nothing is going to happen in this 
area until at least one or more cases moves through the process and 
moves on up to the Supreme Court and the Supreme Court decides this 
issue, which is going to, for a period of time, put us all on hold in 
these cases. And we think that is not justified.
  The final argument we will make, and I want to flesh all of these out 
later in the discussion, is that if we are looking for a solution to 
this problem, we ought to find one that the administration will 
support. The administration does not believe that the solution that is 
offered under this bill is a constitutional solution or a reasonable 
way to address what they agree is a problem, and they have indicated 
that the President will veto this bill.
  So we can either have a bill which solves the problem or we can 
create an atmosphere that preserves the issue for continuing debate, 
and I thought our objective here was to solve the problem, not just 
preserve the issue.
  Those are the five points that I want to try to develop this evening.
  Mr. Chairman, I reserve the balance of my time.
  Mr. SMITH of Texas. Mr. Chairman, I yield 2 minutes to the gentleman 
from New Mexico (Mr. Skeen).
  (Mr. SKEEN asked and was given permission to revise and extend his 
remarks.)
  Mr. SKEEN. Mr. Chairman, I thank the gentleman for yielding me this 
time and I rise in strong support of ending the Tucker shuffle.
  I do so based on a simple and a powerful premise, the Fifth Amendment 
to the Constitution of the United States, which currently states that 
no person shall, quote, be deprived of life, liberty or property 
without due process of law; nor shall private property be taken for 
public use without just compensation.
  I strongly contend that our Founding Fathers' intent was crystal 
clear and that the catalyst for much of the Declaration of Independence 
and the Constitution was based on a tyrannical government's overzealous 
abuse of power and constant infringements on individual freedom, 
including property ownership.
  Unfortunately, the courts have found numerous ways to circumvent a 
constitutional right that is no less important than the right to free 
speech. They have done so under the guise of due process, which in 
actuality is being

[[Page H1089]]

used to retard the process and prevent citizens' constitutionally 
guaranteed right to seek compensation and relief from a Federal 
Government that increasingly seems to disregard the most important 
document in world history.
  In essence, this legislation will facilitate a return of 
constitutional principle by allowing property owners who have been 
subjected to a taking the opportunity for real redress without fear of 
the court's ability to do the Tucker shuffle.
  Remember, we all took oaths to uphold the Constitution, and I believe 
my vote for this legislation will uphold that oath. I can only hope 
that my colleagues, the Senate and the President, remember their oaths 
of office.
  Mr. WATT of North Carolina. Mr. Chairman, I yield 5 minutes to the 
gentleman from New York (Mr. Boehlert).
  (Mr. BOEHLERT asked and was given permission to revise and extend his 
remarks.)
  Mr. BOEHLERT. Mr. Chairman, I rise in opposition to H.R. 992. While 
this bill appears to be an innocuous bill dealing with court 
jurisdiction, its actual effect would be to unsettle many areas of 
environmental law, and that concerns me.
  Now, the gentleman from Texas (Mr. Smith) will offer an amendment 
that will take care of one of the threats this bill poses to 
environmental law. His amendment will ensure that this bill does not 
override existing statutes. I appreciate his willingness to do that and 
I will support his amendment. But his amendment still leaves another 
problem with the bill, the enormous expansion of the jurisdiction of 
the Court of Federal Claims.
  Now, that sounds like an arcane issue. Why should we care? The reason 
is that the Court of Federal Claims has no experience in handling these 
issues. It operates under different procedures than other courts that 
hear environmental cases and is not bound by all the precedents that 
bind those other courts. In other words, we will be sending 
environmental cases into a new, inexperienced, very different venue 
than we have dealt with for the last several decades. That creates 
unnecessary uncertainty not just for environmental advocates but for 
the regulated landowners and companies.
  I should point out that the League of Conservation Voters strongly 
opposes the bill because environmental law cases simply do not belong 
in the Court of Claims. Moreover, the expansion may well prove to be 
unconstitutional.

                              {time}  1800

  The judicial conference of the United States, chaired by Chief 
Justice Rehnquist opposes the provisions of this bill because the bill, 
and I quote, ``represents a major expansion of the jurisdiction and 
remedial powers of the Court of Claims.'' Continuing the quote, ``These 
provisions may raise constitutional issues about the appropriate 
jurisdiction of an Article I court.'' That is, as my colleague, the 
gentleman from North Carolina (Mr. Watt), has indicated previously, it 
may have the unintended consequence, if the bill should pass, of 
actually delaying action rather than expediting action.
  Why would we risk venturing into this uncertain territory? Frankly, 
the committee gives us no real reason at all. There is no evidence 
whatsoever that the so-called Tucker Shuffle is a real-world problem 
affecting real people. We are threatening environmental law for the 
sake of a theory.
  I am, frankly, mystified as to why there is a determined effort to 
open the doors of the Federal Court of Claims. I do not hear any clamor 
for that. But I do hear genuine opposition to opening up the court for 
specific real-world reasons. Let us not unsettle environmental law for 
the sake of a symbolic bill that will help no one and is most certain 
to be vetoed. Let us defeat H.R. 992 and get back to the legislation 
that helps real people without threatening the legal safeguards that 
protect our air, our land, and our water. H.R. 992 does not spell 
relief. It spells trouble.
  Mr. SMITH of Texas. Mr. Chairman, I yield myself as much time as I 
may consume to respond very briefly to a couple points that my friend, 
the gentleman from New York (Mr. Boehlert) made.
  The first point is that he may have unintentionally misstated, 
because the Claims Court has plenty of experience handling these types 
of cases. In fact, it handles all the substantial monetary damage for 
these Fifth Amendment takings. The other is the gentleman said that he 
did not know that this is of concern to real people.
  In my opening statement, I pointed out two horror cases that 
concerned very real people; and I would say just the opposite. I think 
the opposition to what I am trying to do is engendered by theory and 
idealism, not by concern for the real people who have real problems.
  Mr. Chairman, I yield 3 minutes to the gentleman from Oregon (Mr. 
Smith), chairman of the Committee on Agriculture.
  Mr. SMITH of Oregon. I thank the gentleman for yielding.
  Mr. Chairman, I rise today in strong support of H.R. 992, the so-
called Tucker Act Shuffle Relief Act. I would like to thank my friend 
from Texas (Mr. Smith), who has a great name, for his work on this 
issue affecting America's private property owners. The takings clause 
of the Fifth Amendment, as my colleagues have heard, allows the Federal 
Government to acquire private property as long as the Government 
provides ``just compensation,'' quote, end quote, to the owner.
  But, as many of us know, the Federal Government sometimes does not 
abide by what we think our constitutional rights really are. In such 
cases, property owners now have two choices; they can sue for monetary 
relief, or they can sue for injunctive relief. Because the U.S. Court 
of Federal Claims lacks the authority to hear cases for injunctive 
relief and the Federal District Court lacks jurisdiction to hear claims 
for monetary relief, no one court can provide full relief to an 
aggrieved property opener.
  Land owners filing suit today may, therefore, be shuffled between the 
courts, resulting in delays, increasing costs of litigation, of course. 
The Tucker Act Shuffle Relief Act would correct this process and 
provide full relief to property owners who have suffered by these 
problems of courts shuffling their concerns back and forth.
  Is there no support for this kind of legislation? I am so frustrated 
with this system and with what is happening to private property rights 
around the country. As the gentleman knows, I am sure, the courts have 
been holding lately that if you have 50 percent aggrievement, you might 
have a standing in court. It costs roughly $250,000 to go to court for 
a takings issue. This eliminates the man or the woman whose property is 
taken by the Federal Government under that value, so they just merely 
give up.
  All right, is that a private property right? Should we not be 
protecting every dollar of every private property owner's rights 
everywhere we go? Well, part of the frustration is the creation of this 
kind of legislation. It is essential that we do this to restore the 
confidence of America to its government again.
  Mr. WATT of North Carolina. Mr. Chairman, I yield myself 30 seconds 
to respond to some of the gentleman's rhetorical questions.
  I share the gentleman's objective. He should be aware that there is a 
solution, there is a constitutional solution that would eliminate the 
shuffle. We are not opposed to eliminating the shuffle. Our solution 
would be to give jurisdiction over the monetary relief and the legal 
issues to the U.S. District Court, which is an Article III court that 
has the constitutional authority to accept all of that jurisdiction. 
That will eliminate the shuffle completely.
  So I hope the gentleman will support my amendment when it is offered, 
my amendment with the gentleman from New Jersey (Mr. Rothman).
  Mr. Chairman, I yield 3 minutes to the gentlewoman from Texas (Ms. 
Jackson-Lee).
  (Ms. JACKSON-LEE of Texas asked and was given permission to revise 
and extend her remarks.)
  Ms. JACKSON-LEE of Texas. Mr. Chairman, I thank the gentleman from 
North Carolina (Mr. Watt) for yielding, and I cannot disagree with him 
at all. We are clearly in support of protecting property rights and 
recognizing the constitutional privilege that governs property rights 
and the need to protect such rights.
  But, with all due respect to my good friend from Texas, this bill may 
appropriately be named the Tucker Shuffle

[[Page H1090]]

Act because it seems to shuffle, in fact, people away from justice. I 
say that because this bill would be far better if we were to utilize 
the Article III courts and to support the Watt-Rothman amendment that 
will allow these particular challenges by property owners to be in the 
United States District Court.
  Let me tell my colleagues what happens or share. The Court of Federal 
Claims does have the ability to roll, if you will, but most times we 
would see constituents in Texas and Iowa, Idaho, going all the way from 
those faraway locations all the way to Washington D.C. to get justice.
  So what we are suggesting here is shuffle justice away from the local 
community, when in fact the United States District Courts placed in 
those local communities, which are, in fact, Article III courts, have 
the local flavor. They understand Mrs. Jones' concern about her 
property rights and the infringement on those property rights. She is 
amongst those judges appointed from that community, Federal judges 
though they may be, appointed from that community sensitive to the 
value of the relevance of the emotion, the importance of that property 
issue.
  When we start shuffling constituents, mostly partitioners, small land 
owners, all the way to the big city here in Washington D.C., it is 
intimidation, it is a question whether there is any sensitivity and 
whether or not there is justice.
  So I would simply say that we have a real way of dealing with this 
concern, and that is, in place of the Court of Federal Claims, which 
may have limited exposure and experience to environmental concerns, for 
example, you would have the United States District Courts in place in 
your communities that could fully take advantage of the needs of the 
particular constituents on very important issues like property rights. 
The property rights are protected by the Constitution and protected by 
the Fifth Amendment.
  I do not know about my colleagues, but I have seen most of the 
constituents I represent feel far more comfortable to be able to go 
into courthouses in their community than to travel all the way to 
Washington, D.C. and subject themselves, their property, and the meager 
means that they may have in order to be subjected under the Federal 
Court of Claims.

  I think we are going in the wrong direction. It is wrong headed. If 
we truly want to shuffle justice back to the people, then let them have 
their day in court in the United States District Courts in their 
neighborhoods and in their communities.
  This is not a good bill unless amended by the Watt/Rothman bill 
amendment.
  Mr. SMITH of Texas. Mr. Chairman, I yield myself such time as I may 
consume.
  Mr. Chairman, I just want to clarify a point, and that is that this 
bill does not force anybody to go to Washington. In fact, it does just 
the opposite. It gives property owners the option of either going to a 
local Federal district court or going to Washington. The point is they 
should have the choice. That is why we need to support this bill.
  Mr. Chairman, I yield 1 minute to my good friend, the gentlewoman 
from Texas (Ms. Granger).
  Ms. GRANGER. Mr. Chairman, I rise in strong support of the Tucker Act 
Shuffle Relief Act. This important legislation will ensure equal 
justice under the law for America's property owners.
  The Fifth Amendment to the United States Constitution is very clear. 
It says that private property will not be taken for public use without 
just compensation. This guarantees essential freedom and fairness.
  The legislation offered by the gentleman from Texas (Mr. Smith) will 
make sure that this guarantee of just compensation applies to all 
Americans. It says that each and every American, whether rich or poor, 
old or young, lawyer or layman will have their day in court to 
vindicate their rights. It gives each and every American access to 
justice.
  Without this legislation, the right to protect constitutionally 
guaranteed Fifth Amendment rights is only as broad as your legal brief 
and as wide as your wallet.
  Too many Americans have been unable to have their day in court 
because the courtroom door is barred with procedural hurdles and 
technical barriers. These Americans lack the legal fire power or 
financial wherewithal to surmount these barricades.
  The Tucker Act Shuffle Relief Act removes those barriers to justice. 
It opens up the doors to relief for all of our people.
  Support fairness, stand up for equal access to the courts, vote for 
the Constitution, support the Tucker Act Shuffle Relief Act.
  Mr. SMITH of Texas. Mr. Chairman, I yield 3 minutes to my friend, the 
gentleman from Georgia (Mr. Collins).
  Mr. COLLINS. Mr. Chairman, I thank the gentleman for yielding me this 
time.
  Mr. Chairman, the foundation of our American republic is built upon 
the idea that citizens have the inherent right to life, liberty, and 
property. In fact, throughout the writings of our Founding Fathers, the 
right to property is viewed as fundamental to economic and political 
liberty.
  In the Declaration of Independence, Jefferson cited as a central 
reason for seeking independence was the King imposing taxes without our 
consent, the illegal taking of citizens' personal property.
  Then, arguing in support of the proposed Constitution, James Madison 
suggested that government is instituted no less for the protection of 
the property than of the persons or individuals.
  Fortunately for all of us, these views prevailed in the Constitution, 
and the Fifth Amendment ensures that, in the United States, no one will 
be deprived of personal property without due process of law and just 
compensation.
  Unfortunately, however, there is currently no single court in which a 
property owner can seek full relief for a Federal taking. The Tucker 
Act, which splits jurisdiction on property rights issues between 
Federal district courts and the Court of Federal Claims, allows the 
government to argue that property owners are suing in the wrong court. 
This results in bouncing citizens between two courts, often preventing 
or significantly delaying a final decision on the underlying issue of 
an illegal taking.
  Today, each of us have the opportunity and the responsibility to 
protect the constitutional rights of our constituents. The legislation 
before us today will ensure that Federal agencies and courts cannot 
sidestep the Constitution through procedural games and delay tactics.
  I urge my colleagues to support the Tucker Act Shuffle Relief Act.
  Mr. SMITH of Texas. Mr. Chairman, I yield 2 minutes to a special 
friend, my colleague, the gentleman from Texas (Mr. Sessions).
  Mr. SESSIONS. Mr. Chairman, I rise in favor of H.R. 992, the Tucker 
Act Shuffle Relief Act. This bill brings power back to its rightful 
place, the taxpayer or the property owner.
  For too long, our constituents had been denied a quick and painless 
pursuit of their Fifth Amendment freedom. Our Constitution clearly 
recognizes that the right to own and manage one's property is essential 
to protect the other rights delineated in the Constitution.
  We must ensure that property owners have the same access to Federal 
courts as any other individual who claims his constitutional rights had 
been violated. This bill simply streamlines the process to allow 
private property owners full recovery for a taking in one court. It 
does this by granting both Federal district courts and the Court of 
Federal Claims concurrent jurisdiction to hear all claims related to 
property rights.
  This procedural fix will end the delays and increasing cost of 
litigation inherent in the Tucker Act as well as provide swift justice 
for property owners seeking to enforce their constitutional rights 
under the Fifth Amendment.
  I want to thank my good friend, the gentleman from Texas (Mr. Smith) 
for offering this very important piece of legislation. His tireless 
work on this issue will ensure that private property owners across 
America will receive the protection they deserve under our United 
States Constitution.

                              {time}  1815

  Mr. WATT of North Carolina. Mr. Chairman, I yield myself such time as 
I may consume.

[[Page H1091]]

  Mr. Chairman, let me start by addressing the last two speakers, the 
gentleman from Georgia and the gentleman from Texas. First of all, I 
want to say once again and make it absolutely clear that the problem 
that this bill addresses, the shuffle back and forth between the U.S. 
court of claims and the U.S. district court, is one that should be done 
away with. No citizen should be required to go to two separate courts 
to deal with the same issue.
  This bill gives a person whose property has been taken or who claims 
to have had their property taken or the value diminished in some way 
the right to take that claim either to the U.S. Federal court of claims 
or to take it to the U.S. district court. Those are two entirely 
different courts.
  The U.S. district court, under the Constitution, is what is called an 
Article III court. An Article III court is one in which the judges are 
given, once they are appointed to the bench, lifetime tenure. The 
reason that they are given lifetime tenure is that we want them to be 
completely independent of the executive branch of the government, and 
we want them to be completely independent of the legislative branch of 
the government. We do not want politics or favoritism or any threat to 
intervene in their decision-making, so we give them lifetime tenure. 
That is an Article III judge.
  The U.S. Federal court of claims, or the court of Federal claims, as 
it is now called, the judges are appointed for a 15-year term. They do 
not have the level of independence that an Article III judge has 
because their tenure is shorter. So you have Article III judges with 
lifetime tenure; you have Article I judges with a 15-year term.
  Now, most folks, when I come to this body and take up for the 
Constitution, say, that Mel Watt just gets overly worried about the 
Constitution. So I want to put this in context.
  In the drafting of the Declaration of Independence, the Founding 
Fathers complained that ``King George has made judges dependent on his 
will alone for the tenure of their offices and the amount and payment 
of their salaries.'' It was for that reason that we wrote into our 
Constitution the provision for Article III judges. There is an 
historical basis. We were trying to remove those Article III judges 
from any influence that the executive branch of the government could 
exercise over them, and we did it by giving them lifetime tenure so 
that the executive branch or the legislative branch could not go over 
and interfere with those folks. They are supposed to be independent.
  Now, when you then turn around and say, ``Okay, we're going to give 
an Article I judge the authority to declare a statute 
unconstitutional,'' you have stepped over the line. That is what this 
bill does. It says we are going to give the court of Federal claims 
judges the authority to declare acts of Congress unconstitutional. The 
Constitution will not allow that; plain and simple, it will not allow 
it.
  I am not only expressing my opinion on this, I am expressing the 
administration's opinion on it. They have researched it and written us 
and said, we will not sign this bill for that reason, among others. I 
am expressing the opinion of 40 attorneys general whose letter I am 
holding in my hand, not only Democrats but conservative Republican 
attorneys general who expressed the exact same opinion.
  Mr. SMITH of Texas. Mr. Chairman, will the gentleman yield?
  Mr. WATT of North Carolina. I yield to the gentleman from Texas.
  Mr. SMITH of Texas. I just want to reassure the gentleman that in 
subcommittee we passed an amendment that took care of the concerns of 
the State attorneys general. They were concerned about the local issues 
and what impact it might have on that, and we took that out of the 
bill. So I hope that that concern is addressed.
  Mr. WATT of North Carolina. I do not think that concern has been 
addressed at all. I assume the attorneys general are still concerned 
about the constitutional ramifications of this bill. I have not seen 
anything that eliminates that concern.
  Let me tell my colleagues how strongly our Founding Fathers felt 
about this. Our Founding Fathers actually were of the opinion that even 
Article III judges could not overrule a statute that was passed by 
Congress. That is how far away they wanted to put them.
  Invalidation of Federal statutes is a very, very serious thing. Our 
Founding Fathers were so convinced of that that Article III judges who 
serve in the independent judicial branch of our government were not 
given that authority. It was not until the landmark case of Marbury v. 
Madison that even Article III judges were given the authority to 
invalidate a legislative enactment. Now we are going another step and 
giving that authority, under this bill, to judges who are appointed for 
15 years. They do not have lifetime appointment. They are not 
independent.
  Now you have got to wonder why that is happening. That brings me to 
my second point; that is, that this bill will encourage forum shopping. 
You should say, as an initial proposition, ``Well, it should not matter 
whether a judge is a court of Federal claims judge or a U.S. district 
court judge, the result ought to be the same.'' It should be. But it 
should not matter to my colleagues over here, either. That is why I am 
offering the amendment to make all of these claims come to the United 
States district court, an Article III court that has the constitutional 
authority to dispose of both the compensation issue and the 
constitutionality, the legal substantive issue.
  But why do my colleagues want court of Federal claims judges to hear 
this? Let me tell Members my speculation about it. There are 14 judges 
on the court of Federal claims. Nine of the eleven active judges on the 
court of Federal claims were appointed by Presidents Reagan or Bush. Is 
that accidental, or are we looking to encourage people to go to a court 
that has a judge in it that was appointed by Republicans?
  That ought not to be our objective here. If that is what we are 
trying to achieve, we ought to pack up and go home if we are willing to 
sacrifice constitutionality for partisanship. If that is the reason we 
are doing this, that is absolutely unforgivable.
  Now, my colleague is going to offer an amendment that addresses the 
third concern I have. The bill, as it is now postured, would delay 
expedited consideration of a lot of these new takings laws, the 
environmental rules, so that under the bill as it is currently written, 
last fall when the Environmental Protection Agency issued new air 
quality and ozone standards, you could get an immediate decision with 
expedited review within 60 to 90 days; this bill as it is currently 
written would wipe out that expedited review. A number of other 
examples that I could give you, I will not go into that, because 
fortunately my colleague has seen the light on that issue and is going 
to offer an amendment to correct that problem. I am going to support 
that amendment.
  I want to move on to the fourth point, my fourth concern about this 
bill. That is, this whole notion that we are trying to speed up the 
process and get people justice quickly. How long is it going to take 
for this new system, that I have already told you is unconstitutional, 
to work its way through the system and up to the Supreme Court, and the 
Supreme Court to hear arguments and come back down, and somebody to 
take it back up? We will be here 5 years from now trying to decide 
whether this is constitutional or not, and I just told you it was 
unconstitutional. It should not be what we are doing. Because there are 
going to be some real live litigants involved in that, and the cost to 
them of going all the way to the Supreme Court to have the court say 
that this is an unconstitutional statute should not have to be borne by 
individual citizens in this country.
  If we value getting to an expedited result, as my colleague says, and 
with which I agree, we should correct this problem in a constitutional 
way. Put all of the jurisdiction in the United States district court. I 
do not know what impact that will have on the outcome of cases. That 
depends on individual cases.
  I do not care what outcome it has on individual cases. What I do care 
about is that we do this in a way that is constitutional.
  The final thing I care about is that we solve this problem, because 
fairness and equity, as my colleague from Texas has indicated, ought to 
always be the hallmark of our judicial system. The Narromores that he 
talked so much

[[Page H1092]]

about ought not to be subjected to the shuffle back and forth. The 
Joneses, the Smiths, no citizen ought to be subjected to that kind of 
shuffle.

                              {time}  1830

  But guess what? In an effort to maintain this as an issue, my 
colleagues are willing to pass a bill which the President has already 
indicated is going to be vetoed.
  Let me reaffirm, I have the letter right here in my hand. It says, 
``The administration is fully committed to the protection of private 
property, including the payment of just compensation under the Fifth 
Amendment when private property is taken for public use. The 
administration is also committed to streamlining and expediting Federal 
court litigation. However, H.R. 992 presents constitutional concerns, 
would waste valuable judicial resources, and would lead to significant 
instability in the law.''
  And then it goes on to say, ``The Attorney General, the Secretary of 
the Interior, the Administrator of the Environmental Protection Agency, 
and the Chair of the Council on Environmental Quality would recommend 
that the President veto H.R. 992, as reported by the House Committee on 
the Judiciary.''
  Now, we can either pass a bill and get it vetoed and preserve the 
debate, or we can pass a bill that is constitutional and solve this 
problem. We have the choice right here in this body, and I hope that my 
colleagues here will exercise that choice in a responsible way. I tried 
to convince my colleague to do that, but he thinks for some reason, the 
Court of Federal Claims, there is something sacrosanct about it.
  Mr. Chairman, I reserve the balance of my time.
  Mr. SMITH of Texas. Mr. Chairman, I yield myself such time as I may 
consume just to point out that in the statement that my colleague from 
North Carolina just read, it is abundantly clear that the President 
himself has not said he is going to veto it or has threatened to veto, 
it is just a few members of his administration that have recommended to 
veto, and as he knows, there is a great chasm between recommending and 
threatening, and I am not aware of any controlling authority that any 
member of the administration has to actually veto anything.
  Mr. Chairman, I yield 2 minutes to the gentleman from Texas (Mr. 
Green).
  (Mr. GREEN asked and was given permission to revise and extend his 
remarks.)
  Mr. GREEN. Mr. Chairman, I would like to thank my colleague from 
Texas for allowing me to rise in support of H.R. 992. Right now, 
property owners who have suffered a ``taking'' must elect between suing 
for monetary relief in the U.S. Court of Federal Claims or injunctive 
relief from Federal district courts.
  Currently, this split jurisdiction hurts property owners. The Tucker 
Act makes the property owner choose between the two courts. By doing 
so, an individual can never receive full relief from an uncompensated 
Fifth Amendment taking.
  H.R. 992 would permit private property owners to fully recover from a 
taking in either court by amending the Tucker Act. H.R. 992 gives both 
the district courts and the Court of Federal Claims concurrent 
jurisdiction to hear all of the claims relating to a Fifth Amendment 
taking. In essence, we have stripped away the confusion, delays and the 
procedural issues that may make it difficult for a property owner to 
have their case heard.
  H.R. 992 also addresses the issues revolving around section 1500 of 
the Tucker Act. Section 1500 denies the Federal Court of Claims 
jurisdiction to entertain a suit pending in another court brought by 
the same plaintiff. This makes the filing of the Fifth Amendment 
takings case more complex and costly.
  The Tucker Shuffle Relief Act clarifies the law to state that either 
the district court or the Federal claims court can have jurisdiction, 
ending this ambiguity in the law, and that is why, Mr. Chairman, I 
support H.R. 992 and urge its passage.
  Mr. SMITH of Texas. Mr. Chairman, I would say to my colleague from 
North Carolina that I do not have any other speakers, but I intend to 
close.
  Mr. Chairman, I reserve the balance of my time.
  Mr. WATT of North Carolina. Mr. Chairman, I yield myself such time as 
I may consume to respond to the gentleman from Texas (Mr. Green). We 
solved the problem in a constitutional way by the Watt-Rothman 
amendment. I hope the gentleman will support my amendment. I hope the 
House will support my amendment and we can solve this shuffle in a 
constitutional way. That is all we are trying to do. I hope my 
colleagues will join us and help us do it.
  Mr. Chairman, I yield back the balance of my time.
  Mr. SMITH of Texas. Mr. Chairman, I yield myself such time as I may 
consume.
  A previous speaker mentioned that the Justice Department had some 
concern that this bill would encourage forum shopping. However, I want 
to point out that this is the same Justice Department in 1995 that 
admitted that under current law, ``The government presumably would have 
the right to transfer the cases and consolidate them in one forum.''
  Also, all appeals in ``takings'' cases will be heard by the Court of 
Appeals for the Federal circuit, so a court precedent in takings cases 
will remain uniform regardless of what trial court a citizen initially 
chooses. The citizen will not be able to avoid unfavorable precedent by 
going to one court or the other.
  Another point is that today a citizen has a choice of three courts to 
go to in a tax case. If the citizen does not pay the tax owed, he or 
she can go to a tax court. If the citizen pays the tax, the citizen can 
choose to go to the district court nearest to where they reside, or 
they can go to the Court of Federal Claims. As Chief Justice Lawrence 
Smith has stated, ``All 3 courts have developed their own particular 
abilities, and this system has provided, in the view of really all the 
tax bar, even the IRS and the Justice Department, a better system for 
the United States.''
  We should provide U.S. citizens the same flexibility in takings cases 
that they now enjoy in tax disputes. We should allow them to choose a 
U.S. district court or the Court of Federal Claims, depending on their 
needs. Just as detrimental forum shopping has not developed in tax 
cases, it will not develop in takings cases either.
  Mr. Chairman, the gentleman from North Carolina (Mr. Watt) mentioned 
a while ago his constitutional concerns and I want to lay them to rest. 
The Constitution clearly allows Congress to provide the Court of 
Federal Claims with the power providing equitable and declaratory 
relief in takings cases.
  First, each Federal court, whether an Article I court or an Article 
III court, has the inherent authority and duty to disregard 
unconstitutional statutes and regulations. So in IBM Corporation v. 
U.S., the Federal circuit recently affirmed a ruling by the Court of 
Federal Claims declaring the Federal tax statute to be 
unconstitutional.
  Second, the Court of Federal Claims already can provide the 
declaratory and equitable relief in various areas which now encompass 
about 40 percent of its docket.
  Third, recent Supreme Court cases of Northern Pipeline Construction 
Company v. Marathon Pipeline Company and Commodity Futures Trading 
Commission v. Shore both signal Congress's ability to give the Court of 
Federal Claims the power to grant total relief in takings cases.
  Mr. Chairman, in closing, let me reiterate that this legislation is 
based on equity and fairness. Every homeowner and every property owner 
across America deserves to have their day in court and in the right 
court and the court of their choosing. Property owners in America 
should not be shuffled back and forth between courts by the Federal 
Government when they are simply trying to assert their Fifth Amendment 
property rights.
  H.R. 992 provides a solution to the unreasonable obstacles and costs 
property owners face today because of the Tucker Act. This bill would 
simplify the process for private property owners by giving them an 
option to go either to the Court of Federal Claims or the U.S. district 
courts for remedies concerning only Fifth Amendment private property 
takings cases. We do not change the substantive law that defines a 
taking; we leave it to current law to determine whether there is a 
legal claim.

[[Page H1093]]

  My amendment on preclusive review assures that this bill will not 
modify environmental statutes, so the main objection of the League of 
Conservation Voters and a few of my colleagues has been addressed.
  H.R. 992 simplifies the ability of every property owner in America to 
obtain a timely resolution one way or the other of their takings claim. 
If one supports giving private property owners their day in court, if 
one believes property owners, not big government, should choose the 
court that hears their case, if one believes that property owners do 
not deserve to be treated like a ping-pong ball by the Federal 
Government, if one believes in fairness and equity, then I encourage my 
colleagues on both sides of the aisle to vote for this simple, 
straightforward, common sense bill and support the right of every 
property owner across America to have their day in court.
  Mr. Chairman, the Chamber of Commerce, the Realtors, and the Home 
Builders hope my colleagues will vote for this bill, too, and oppose 
the Watt amendment tomorrow.
  Mr. CONYERS. Mr. Chairman, I rise today to urge you to oppose H.R. 
992, the so-called ``Tucker Act Shuffle Relief Act of 1997.''
  While I support the protection of private property rights and the 
payment of just compensation under the Fifth Amendment, I must oppose 
H.R. 992 because it is unconstitutional, overrides valuable 
``preclusive review'' provisions in Federal statutes, and will lead to 
duplicative litigation and forum shopping. The bill is strongly opposed 
by the administration and is likely to be vetoed.
  H.R. 992 is unconstitutional because it blurs the important 
distinction between Article III and Article I judges by allowing 
Article I, Court of Federal Claims judges to invalidate Federal 
regulations. Only Article III courts have the power of judicial review 
and the power to enjoin agency actions. The Supreme Court has clearly 
ruled that Congress cannot grant an Article I court the remedial powers 
of an Article III court.
  Second, H.R. 992 overrides the ``preclusive review'' provisions that 
are an integral part of many Federal statutes. Preclusive review 
provisions ensure prompt and definitive resolution of legal challenges 
to agency decisions by providing that challenges to the validity of a 
particular statute must be brought in a particular court within 60 to 
90 days. Businesses and investors rely on ``preclusive review'' 
provisions in order to make long-term business and investment decisions 
with certainty.
  The bill would override these ``preclusive review'' provisions and 
allow challenges to be brought in a variety of different Federal courts 
at any time. A number of major Federal statutes would be affected, 
including the Safe Drinking Water Act, the Resource Conservation and 
Recovery Act, the Consumer Product Safety Act, and the Occupational 
Safety and Health Act. This result would be harmful to the public and 
the regulated community.
  Finally, H.R. 992 will lead to duplicative litigation and forum 
shopping. By repealing 28 U.S.C. 1500, H.R. 992 eliminates provisions 
in current law that prevent duplicative litigation when a similar claim 
has been filed or is pending in another court. This will lead to a rash 
of wasteful litigation and forum shopping which would unnecessarily 
expend limited judicial resources.
  I urge a ``no'' vote on H.R. 992.
  The CHAIRMAN pro tempore (Mr. LaHood). All time for general debate 
has expired.
  Pursuant to the rule, the committee amendment in the nature of a 
substitute printed in the bill is considered as an original bill for 
the purpose of amendment, and is considered read.
  The text of the committee amendment in the nature of a substitute is 
as follows:

       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 ``Tucker Act Shuffle Relief 
     Act of 1997''.

     SEC. 2. TUCKER ACT SHUFFLE RELIEF.

       (a) In General.--
       (1) Grant of concurrent jurisdiction.--Except as provided 
     in paragraph (3), the United States district courts and the 
     United States Court of Federal Claims shall each have 
     original jurisdiction to hear and determine all claims 
     (whether for monetary or other relief) arising out of agency 
     action alleged--
       (A) to constitute a taking in violation of the fifth 
     article of amendment to the Constitution of the United 
     States; or
       (B) not to constitute such a taking only because the action 
     was not in accordance with lawful authority.
       (2) Election by plaintiff.--The plaintiff, by commencing an 
     action under this section, elects which court shall hear and 
     determine those claims as to that plaintiff.
       (3) Parties involuntarily joined.--No third party may be 
     involuntarily joined to a case, within the jurisdiction of 
     the Court of Federal Claims by reason of this section, if 
     that party would be entitled to a determination of the claim 
     with respect to which that party is joined by a court 
     established by or under article III of the Constitution of 
     the United States.
       (b) Equitable and Declaratory Remedies.--With respect to 
     any claim within its jurisdiction by reason of this section, 
     the Court of Federal Claims shall have the power to grant 
     equitable and declaratory relief when appropriate.
       (c) Appeals.--Any appeal from any action commenced under 
     this section shall be to the United States Court of Appeals 
     for the Federal Circuit.
       (d) Definitions.--As used in this Act, the term--
       (1) ``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; and
       (2) ``agency action'' means any action or decision taken by 
     an agency.
       (e) Conforming Amendment to Title 28, United States Code, 
     Relating to Jurisdiction Over Tort Claims.--Section 1346(b) 
     of title 28, United States Code, is amended by inserting 
     ``and the Tucker Act Shuffle Relief Act of 1997'' after 
     ``chapter 171 of this title''.

     SEC. 3. REPEAL OF LIMITATION ON FEDERAL CLAIMS COURT 
                   JURISDICTION BECAUSE OF PENDENCY OF CLAIMS IN 
                   OTHER COURTS.

       (a) In General.--Section 1500 of title 28, United States 
     Code, is repealed.
       (b) Clerical 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.
       Amend the title so as to read: ``A bill to end the Tucker 
     Act shuffle, and for other purposes.''.

  The CHAIRMAN. During consideration of the bill for amendment, the 
Chairman may accord priority in recognition to a Member offering an 
amendment that he has printed in the designated place in the 
CONGRESSIONAL RECORD. Those amendments will be considered read.
  The Chairman of the Committee of the Whole may postpone a request for 
a recorded vote on any amendment and may reduce to a minimum of 5 
minutes the time for voting on any postponed question that immediately 
follows another vote, provided that the time for voting on the first 
question shall be a minimum of 15 minutes.
  Are there any amendments to the bill?


                Amendment Offered by Mr. Smith of Texas

  Mr. SMITH of Texas. Mr. Chairman, I offer an amendment.
  The Clerk read as follows:
  Amendment offered by Mr. Smith of Texas:
       Page 3, after line 12, insert the following:
       (4) Preclusive Review.--The grant of jurisdiction made by 
     this subsection does not extend to matters over which other 
     Federal law has granted exclusive jurisdiction to one or more 
     United States courts of appeals or district courts.

  Mr. SMITH of Texas. Mr. Chairman, my colleague, the gentleman from 
North Carolina (Mr. Watt), has raised a concern that this bill might 
change the preclusive review provisions that are contained in some 
Federal environmental statutes. Such provisions specify that the review 
of the particular statutes must be handled by specified Federal courts.
  The preclusive review issue is not one about substantive law, only 
about which Federal courts get to adjudicate a dispute regarding a 
particular statute. In any event, I want to reassure my colleagues that 
the Tucker Act Shuffle Relief Act will not modify any Federal 
environmental laws, so I am offering this amendment to make sure that 
the bill does not override preclusive review provisions.
  My amendment simply states that the grant of jurisdiction made by the 
Tucker Act Shuffle Relief Act does not extend to matters over which 
other Federal law has granted exclusive jurisdiction to one or more 
United States courts of appeals or district courts. This shows the 
preclusive provisions will not be touched by this bill.
  While the concern raised about preclusive review is unfounded, in my 
opinion, I do want to make a good faith effort to address it, so I 
encourage Members to support this amendment.
  Mr. WATT of North Carolina. Mr. Chairman, I move to strike the last 
word.
  Mr. Chairman, I would inquire of my friend from Texas whether he is 
intending to amend, is asking unanimous consent to amend his amendment? 
I thought we had talked about that.

[[Page H1094]]

  Mr. SMITH of Texas. Mr. Chairman, will the gentleman yield?
  Mr. WATT of North Carolina. I yield to the gentleman from Texas.
  Mr. SMITH of Texas. Mr. Chairman, the amendment that I am offering 
now has language that has been added that the gentleman from North 
Carolina and I talked about earlier today, and I want to reassure him 
that that language has been inserted.
  Mr. WATT of North Carolina. Mr. Chairman, I thank the gentleman for 
answering that question.
  Mr. Chairman, this certainly improves the gentleman's bill, this 
amendment. I support his amendment fully. It does not go all the way to 
address the constitutional issue, unfortunately, but it addresses the 
issue of expedited review of cases, and that needed to be addressed, 
and I am glad he is doing it. I encourage my colleagues to support the 
amendment.
  Mr. Chairman, I yield back the balance of my time.
  The CHAIRMAN. The question is on the amendment offered by the 
gentleman from Texas (Mr. Smith).
  The amendment was agreed to.
  The CHAIRMAN pro tempore. Are there further amendments?


            Amendment Offered by Mr. Watt of North Carolina.

  Mr. WATT of North Carolina. Mr. Chairman, I offer an amendment in the 
nature of a substitute.
  The Clerk read as follows:

       Amendment in the nature of a substitute offered by Mr. Watt 
     of North Carolina:
       Strike all after the enacting clause and insert the 
     following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Tucker Act Shuffle Relief 
     Act of 1998''.

     SEC. 2. TUCKER ACT SHUFFLE RELIEF.

       (a) In General.--
       (1) Grant of Jurisdiction to United States District 
     Courts.--The United States district courts shall have 
     original jurisdiction to hear and determine all claims, 
     notwithstanding the dollar amount, arising out of an agency 
     action alleged to constitute a taking without just 
     compensation under the fifth article of amendment to the 
     Constitution of the United States.
       (2) Election by Plaintiff.--The plaintiff may elect to file 
     separate actions relating to such claims in the United States 
     district court and the Court of Federal Claims, or may 
     consolidate all such claims in the United States district 
     court.
       (3) Preclusive or exclusive review.--Nothing in this 
     section shall be construed to affect any provision of a 
     Federal statute which gives preclusive or exclusive 
     jurisdiction of a specific cause of action to the United 
     States court of appeals or to specific United States district 
     courts.
       (4) Appeals.--Any appeal to a ruling by the United States 
     district court shall be heard in accordance with section 1291 
     of title 28, United States Code.
       (b) Definitions.--As used in this Act, the term--
       (1) ``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; and
       (2) ``agency action'' means any action or decision taken by 
     an agency.

     SEC. 3. CLARIFICATION OF LIMITATION ON FEDERAL CLAIMS COURT 
                   JURISDICTION BECAUSE OF PENDING CLAIMS IN OTHER 
                   COURTS.

       Section 1500 of title 28, United States Code, is amended by 
     inserting ``, arising from the same operative facts and 
     seeking the same relief,'' after ``any suit or process''.
       Amend the title so as to read: ``A bill to end the Tucker 
     Act shuffle, and for other purposes.''.

  Mr. WATT of North Carolina. Mr. Chairman, this amendment, now that 
the chairman of our subcommittee has made his amendment, the primary 
purpose would be to remove the discretion for a litigant to go to the 
Court of Federal Claims or to the U.S. district court, which I think is 
an unconstitutional discretion, and still give to a litigant the right 
to take their claim to the U.S. district court, an Article III court, 
and have their claim determined in its entirety.

                              {time}  1845

  They could litigate the constitutionality of the taking; they can 
litigate the amount of compensation they are due as a result of the 
taking. All of that can be addressed in the United States District 
Court.
  In our opinion, to give a litigant the option of going to the U.S. 
Court of Claims, the Federal Court of Claims, is an unconstitutional 
act, because those judges are not Article III judges. I have already 
summarized that. I will not belabor that point anymore.
  I do have a severe concern that the reason that this option is being 
offered under the bill is for political purposes. I misstated in my 
earlier statement, all of the 14 active judges of the Court of Federal 
Claims and 9 of the 11 active judges on the Court of Appeals from that 
court are either Reagan or Bush appointees. I think that is really what 
is giving this option for people to go to the Court of Federal Claims 
is all about.
  We ought not to worry about political objective, we ought to be 
worrying about getting a bill that solves the problem in a 
constitutional way. I hope that my colleagues will support my 
amendment.
  Mr. Chairman, Assistant Attorney General Eleanor Acheson stated 
precisely why, in her recent testimony before the Subcommittee on 
Immigration and Claims, we should oppose this amendment.
  She said,

       The Court of Federal Claims has developed expertise in 
     resolving and streamlining takings litigation, and in the 
     other complex cases within its specialized docket.

  She also stated that,

       Takings claims may involve extensive discovery and trial on 
     significant issues with which a Federal District Court has 
     little experience.

  We should not discard the valuable resource of the Court of Federal 
Claims' expertise or its large body of case law, which has been 
compiled over many years. Property owners across America have the right 
to be heard in either the Claims Court or the Federal District Court.
  Why not give property owners the option of bringing a takings claim 
in a U.S. District Court or the Court of Federal Claims? If the owner 
wants to pursue his or her claim in a court close to home, the 
individual can choose a Federal District Court. If the owner wants to 
utilize the expertise of a specialized court, the owner can choose the 
Court of Federal Claims. We should make it as easy as possible for 
property owners to have their claims heard.
  My colleague is concerned that Congress cannot constitutionally give 
the Claims Court the authority to grant injunctive relief, but the 
Court of Federal Claims already has the power to grant injunctive 
relief in various areas, totaling about 40 percent of its docket, as I 
noted a minute ago.
  Further, the Supreme Court has provided us with a test to judge 
whether Congress can give the Court of Federal Claims the power of 
injunctive relief in different circumstances. If we apply these tests 
found in the cases of Northern Pipeline and Commodity Futures, the 
result is very clear. Congress can grant the Claims Court the powers of 
injunctive relief in Fifth Amendment takings cases.
  There are some, and I certainly do not put my friend, the gentleman 
from North Carolina (Mr. Watt) in this category, but there are some who 
say they are for property rights. What they mean is that they are for 
property rights in the abstract, for property rights theoretically, for 
property rights idealistically, but when it comes to helping real 
people with real problems, somehow they can never be found.
  This bill is a fair, straightforward, commonsense way to give every 
property owner across America their right to choose the court that they 
think is best for their claim, either the Claims Court or the Federal 
District Court.
  This amendment would destroy that option for every property owner in 
America. The underlying bill is supported by such organizations as the 
National Association of Realtors, the National Association of Home 
Builders, and the U.S. Chamber of Commerce. These groups also oppose 
the weakening amendments, such as this one. So I hope tomorrow, when we 
ultimately vote on this amendment, there will be strong bipartisan 
opposition to it.
  Mr. Chairman, I move that the Committee do now rise.
  The motion was agreed to.
  Accordingly, the Committee rose; and the Speaker pro tempore (Mr. 
Ewing) having assumed the chair, Mr. Sununu, Chairman pro tempore of 
the Committee of the Whole House on the State of the Union, reported 
that that Committee, having had under consideration the bill (H.R. 992) 
to end the Tucker Act shuffle, had come to no resolution thereon.




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