[Congressional Record Volume 145, Number 69 (Thursday, May 13, 1999)]
[Senate]
[Pages S5265-S5268]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HATCH:
  S. 1028. 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; to the Committee on the 
Judiciary.


                 citizens access to justice act of 1999

  Mr. HATCH. Mr. President, I am pleased today to introduce the 
``Citizens Access to Justice Act of 1999,'' or CAJA. More precisely, I 
am reintroducing the same bill that was voted out of the Judiciary 
Committee last Congress, but was a victim of a filibuster by the left.
  Why am I doing this? Some may say that it is fruitless. But even 
though Senator Landrieu, other supporters of the bill, and myself, were 
unsuccessful last Congress in passing this much needed bill, property 
owners of Utah, and, indeed, of all of our States, still feel the heavy 
hand of the government erode their right to hold and enjoy private 
property. To make matters worse, many of these property owners often 
are unable to safeguard their rights because they effectively are 
denied access to federal courts. Our bill was designed to rectify this 
problem. Let me explain.
  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 case of Marbury v. 
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 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. They are also hampered by the overlapping and 
confusing jurisdiction of the Court of Federal Claims and the federal 
district courts over Fifth Amendment property rights claims. CAJA seeks 
to remedy these situations.
  The purpose of the bill is, therefore, at its root, primarily one of 
fostering fundamental fairness and simple justice for the many millions 
of Americans who possess or own property. Many citizens who attempt to 
protect their property rights guaranteed by the Fifth Amendment of the 
Constitution are barred from the doors of the federal courthouse.
  In situations where other than Fifth Amendment property rights are 
sought to be enforced--such as First Amendment rights, for example--
aggrieved parties generally file in a single federal forum to obtain 
the full range of remedies available to litigants to make them whole. 
In property rights cases, property owners may have to file in different 
courts for different types of remedies. This is expensive and wasteful.
  Moreover, unlike situations where other constitutional rights are 
sought to be enforced, property owners seeking to enforce their Fifth 
Amendment rights must first exhaust all state remedies with the result 
that they may have to wait for over a decade before their rights are 
allowed to be vindicated in federal court--if they get there at all. 
CAJA addresses this problem of providing property owners fair access to 
federal courts to vindicate their federal constitutional rights.
  Let me be more specific. The bill has two main provisions to 
accomplish this end. The first is to provide private property owners 
claiming a violation of the Fifth Amendment's Taking Clause some 
certainty as to when they may file the claim in federal court. This is 
accomplished by addressing the procedural hurdles of the ripeness and 
abstention doctrines which currently prevent them from having fair and 
equal access to federal court. The bill defines when a final agency 
decision has occurred for purposes of meeting the ripeness requirement 
and prohibits a federal judge from abstaining from or relinquishing 
jurisdiction when the case does not allege any violation of a state 
law, right, or privilege. Thus, the bill serves as a vehicle for 
overcoming federal judicial reluctance to review takings claims based 
on the ripeness and abstention doctrines.
  The second provision clarifies the jurisdiction between the Court of 
Federal Claims in Washington, D.C., and the regional federal district 
courts over federal Fifth Amendment takings claims. 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 the 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 division between law and equity is archaic and results in 
burdensome delays as property owners who seek both types of relief are 
``shuffled'' from one court to the other to determine which court is 
the proper forum for review. The bill resolves this matter by simply 
giving both courts concurrent jurisdiction over takings claims, thus 
allowing both legal and equitable relief to be granted in a single 
forum.
  I must emphasize that the bill 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 
the bill does is to provide for fair procedures to allow property 
owners the means to safeguard their rights by having their day in 
court.
  Mr. President, I am very well aware that this bill has been opposed 
by the

[[Page S5266]]

Department of Justice, many localities, some interstate governmental 
associations, and certain environmental groups. I believe that there 
concerns that the bill would hinder local prerogatives and 
significantly increase the amount of federal litigation are highly 
overstated. The bill is carefully drafted to ensure that aggrieved 
property owners must first seek solutions on the local or state level 
before filing a federal claim. It just sets a limit on how many 
procedures localities may interpose.

  Moreover, I seriously doubt that there will be a rush of new 
litigation, as some have contended, flooding federal courts. That there 
will be no significant increase was the conclusion of the nonpartisan 
Congressional Budget Office in its study of last year's bill.
  It is extremely difficult to prove a takings claim, and this bill 
does not in any way redefine what constitutes a taking. These claims 
are also expensive to bring. Paradoxically, localities' need to defend 
federal actions may be lessened by the bill because localities already 
must litigate property rights claims on federal ripeness grounds, which 
take years to resolve.
  Let me restate this. By providing certainty on the ripeness issue, 
the bill may very well reduce litigation costs to localities. 
Substantive takings claims, unless they are likely to prevail on the 
merits, are simply too hard to prove and too expensive to bring in 
federal court. And the issue of ripeness will have been removed by the 
bill from the already crowded court dockets.
  Mr. President, it is interesting to note that once many state 
officials, localities, and state and trade organizations really examine 
the measure, many become the bill's supporters. Those supporting the 
bill and increased vigilance in the property rights arena include the 
Governors of Tennessee, Wisconsin, New Mexico, and North Dakota.
  They also include the American Legislative Exchange Council, which 
represents over 3000 state legislators, and trade groups such as 
America's Community Bankers, the National Mortgage Association of 
America, the National Association of Home Builders, the National 
Association of Realtors, and the National Federation of Independent 
Businesses, the organ of small business in the United States. They also 
include agricultural interests such as the American Farm Bureau, the 
American Forest and Paper Association, the National Cattlemen's Beef 
Association, and the National Grange.
  Just as important, let me point out that 133 House sponsors of the 
last year's House passed bill were former state and local 
officeholders. I do not believe that they would have voted for the bill 
if the bill would conflict with local sovereignty.
  Mr. President, we have bent over backwards trying to accommodate 
those expressing concerns about the bill which passed out of the Senate 
Judiciary Committee last year. We met with city mayors, representatives 
of local governmental organizations, attorneys generals, and religious 
groups, to name just a few.
  We held group meetings and asked for suggestions and changes to the 
bill which would alleviate opposition and concerns. These changes are 
incorporated in the present bill. These changes by and large alleviate 
municipalities' concerns that the bill would become a vehicle for 
frivolous and novel suits. They remove any incentive the bill may have 
for property owners to file specious suits against localities. They 
foster negotiations to resolve problems. And, they recognize the right 
of the states and localities to abate nuisances without having to pay 
compensation.
  But I am under no illusion. I understand that many localities still 
oppose the bill. The process that we so fruitfully began last year 
should be continued. It is my hope that groups supporting property 
rights and those localities and governmental entities that oppose the 
bill should meet as soon as practicable. Let each side discuss their 
problems and concerns. I believe--in the best tradition of American 
pragmatic know how--that a solution to this problem can be worked out.
  The bill I introduce today is a model. But it is a model that can be 
improved. I assure all those concerned that we will consider all 
reasonable suggested changes to the bill. After all, it is not pride of 
authorship that is important. What is important, instead, is a viable 
solution to a vexing and unfair problem.
  Mr. President, I ask unanimous consent that the entire text of the 
bill be inserted in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1028

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Citizens Access to Justice 
     Act of 1999''.

     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;

[[Page S5267]]

       (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 available waivers and 
     administrative appeals 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 1999.'';
       (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 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 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 as defined by applicable 
     law 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 and one 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.
       ``(C)(i) The party seeking redress shall not be required to 
     submit any application 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, 
     zoning, and planning 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 1999.''.
       (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) 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 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 as defined by applicable 
     law 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 and one 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 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, 
     zoning, and planning 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 in an action if--
       ``(1) no claim of a violation of a State law or privilege 
     is alleged; and
       ``(2) a parallel proceeding in State court arising out of 
     the same core of operative facts as the district court 
     proceeding is not pending.
       ``(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 applicable law, to use such real property; and
       ``(2) challenges whether an action of the applicable 
     locality exceeds the authority

[[Page S5268]]

     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 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 applicable 
     law, 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, 
     zoning, and planning 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.
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