[House Report 105-424]
[From the U.S. Government Publishing Office]



                                                                      
105th Congress                                                   Report
 2d Session             HOUSE OF REPRESENTATIVES                105-424
_______________________________________________________________________


 
                 TUCKER ACT SHUFFLE RELIEF ACT OF 1997

                                _______


 March 3, 1998.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

Mr. Smith of Texas, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 992]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 992) to end the Tucker Act shuffle, having 
considered the same, reports favorably thereon with amendments 
and recommends that the bill as amended do pass.

                           TABLE OF CONTENTS

                                                                  

                                                                 Page
The Amendment..............................................           2
Purpose and Summary........................................           2
Background and Need for Legislation........................           3
Hearings...................................................          13
Committee Consideration....................................          13
Vote of the Committee......................................          13
Committee Oversight Findings...............................          14
Committee on Government Reform and Oversight Findings......          14
New Budget Authority and Tax Expenditures..................          14
Congressional Budget Office Estimate.......................          14
Constitutional Authority Statement.........................          16
Section-by-Section Analysis and Discussion.................          16
Agency Views...............................................          17
Changes in Existing Law Made by the Bill, as Reported......          17
Dissenting Views...........................................          18

    The amendments are as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

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.

                          Purpose and Summary

    H.R. 992 is intended to end the ``Tucker Act Shuffles'' 
that currently can bounce property owners between U.S. District 
Courts and the Court of Federal Claims when seeking redress 
against the federal government for the taking of their 
property. The bill's principal effect would be to grant both 
U.S. District Courts and the Court of Federal Claims the power 
to determine all claims arising out of federal agency actions 
alleged to constitute takings in violation of the Fifth 
Amendment (or not to constitute takings only because the 
actions were not in accordance with lawful authority).

                  Background and Need For Legislation

                          I. Relevant Statutes

A. The Court of Federal Claims and the Tucker Act
    Based upon the legal doctrine of sovereign immunity, the 
federal government can only be sued with its consent. Until 
1855, individuals seeking compensation for federal government 
actions had to appeal to their members of Congress for private 
relief legislation. Then, the Court of Claims Act of 1855 
established the U.S. Court of Claims to investigate claims 
based upon congressional laws, executive department regulations 
or express or implied contracts with the federal government, 
and then make recommendations to Congress as to 
compensation.\1\
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    \1\ See Ch. 122, 10 Stat. 612.
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    In 1887, Congress passed the Tucker Act permitting claims 
based upon the U.S. Constitution to be brought in the Court of 
Claims (and granting circuit courts concurrent jurisdiction 
with the Court of Claims over claims for money damages up to 
$10,000).\2\ Thus, individuals who believed their property had 
been taken by the federal government in violation of the Fifth 
Amendment \3\ could seek compensation in federal court.
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    \2\ See Ch. 359, 24 Stat. 505.
    \3\ The Amendment provides that ``nor shall private property be 
taken for public use, without just compensation.'' U.S. Const. amend. 
V.
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    From these sources comes the present jurisdiction of the 
Court of Federal Claims:

          The United States Court of Federal Claims shall have 
        jurisdiction to render judgment upon any claim against 
        the United States 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, or for liquidated or 
        unliquidated damages in cases not sounding in tort.\4\
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    \4\ 28 U.S.C. sec. 1491(a)(1). The U.S. District Courts' concurrent 
jurisdiction for claims up to $10,000 is found at 28 U.S.C. sec. 
1346(a)(2).

    This statute grants to the Court of Federal Claims 
jurisdiction over money damages. The court can also grant 
equitable relief (generally, injunctive relief) and declaratory 
relief (such as the declaration of a statute to be 
unconstitutional) in various situations as provided by 
statute.\5\ Otherwise, U.S. District Courts are the judicial 
bodies that grant equitable and declaratory relief as to the 
actions of federal agencies.\6\
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    \5\ See, e.g., 28 U.S.C. sec. 1491(b) (certain contract disputes 
with the federal government).
    \6\ U.S. District Courts were created by Congress pursuant to 
Article III of the Constitution. Article III provides that judges are 
appointed for life and that their salaries may not be diminished. The 
Court of Federal Claims was created by Congress pursuant to Article I 
of the Constitution. Federal law provides that Court of Federal Claims 
judges serve 15-year terms and that their salaries are equivalent to 
that of district court judges. See 28 U.S.C. secs. 171-72.
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B. U.S. District Courts and the Administrative Procedure Act
    Unless otherwise provided by statute, U.S. District Courts 
grant equitable relief pursuant to the Administrative Procedure 
Act (``APA''). The APA states that ``[a] person suffering legal 
wrong because of [federal] agency action, or adversely affected 
or aggrieved by agency action . . . is entitled to judicial 
review thereof.\7\ Under the APA, the district court shall--
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    \7\ 5 U.S.C. sec. 702.
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          (2) hold unlawful and set aside agency action, 
        findings, and conclusions found to be--

          (A) arbitrary, capricious, an abuse of discretion, or 
        otherwise not in accordance with law;
          (B) contrary to constitutional right, power, 
        privilege, or immunity;
          (C) in excess of statutory jurisdiction, authority, 
        or limitations, or short of statutory right;
          (D) without observance of procedure required by law. 
        . . .\8\
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    \8\ 5 U.S.C. sec. 706.

    Thus, if a property owner would prefer not to receive 
compensation for the federal government's confiscation of 
property (or other type of taking), but to challenge the 
government's very right to confiscate (or otherwise take) the 
property, the owner would go before a U.S. District Court 
seeking injunctive relief. \9\
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    \9\ This works as follows:
    [T]he Supreme Court has held that monetary relief for unauthorized 
Executive seizures is not available in the Claims Court. . . . `` `The 
taking of private property by an officer of the United States for 
public use, without being authorized, expressly or by necessary 
implication, to do so by some act of Congress, is not the act of the 
Government,' and hence recovery is not available in the Court of 
Claims.'' . . .
    [I]njunctive relief is available [in U.S. District Court] when the 
[property] owner proves that government officials lack lawful authority 
to expropriate his property.
    Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1522 (D.C. Cir. 
1984)(en banc) (emphasis in original) (footnote omitted), vacated on 
other grounds and remanded, 471 U.S. 1113 (1985), dismissed on other 
grounds, 788 F.2d 762 (D.C. Cir. 1986) (en banc), quoting Regional Rail 
Reorganization Act Cases, 419 U.S. 102, 127 n.16 (1974) (quoting Hooe 
v. United States, 218 U.S. 322,336 (1910)). Injunctive relief is also 
available in U.S. District Court ``when the monetary compensation 
available exclusively in the Federal Court of Claims would be wholly 
inadequate to compensate the complainant for the alleged taking.'' 
Transcapital Financial Corp., 44 F.3d at 1025.
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C. 28 U.S.C. section 1500 and the Interaction of the Court of Federal 
        Claims and U.S. District Courts
    Section 1500 provides that:
          The United States Court of Federal Claims shall not 
        have jurisdiction of any claim for or in respect to 
        which the plaintiff or his assignee has pending in any 
        other court any suit or process against the United 
        States or any person who, at the time when the cause of 
        action alleged in such suit or process arose, was in 
        respect thereto, acting or professing to act, directly 
        or indirectly under the authority of the United 
        States.\10\
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    \10\ 28 U.S.C. sec. 1500.
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    Where does this provision come from?--
          The lineage of this text runs back more than a 
        century to the aftermath of the Civil War, when 
        residents of the Confederacy who had involuntarily 
        parted with property (usually cotton) during the war 
        sued the United States for compensation in the Court of 
        Claims, under the Abandoned Property Collection Act. . 
        . . When these cotton claimants had difficulty meeting 
        the statutory condition that they must have given no 
        aid or comfort to participants in the rebellion . . . 
        they resorted to separate suits in other courts seeking 
        compensation not from the Government as such but from 
        federal officials, and not under the statutory cause of 
        action but on tort theories such as conversion. . . . 
        It was these duplicative lawsuits that induced Congress 
        to prohibit anyone from filing or prosecuting in the 
        Court of Claims ``any claim . . . for or in respect to 
        which he . . . shall have commenced and has pending'' 
        an action in any other court against an officer or 
        agent of the United States. . . . The statute has long 
        outlived the cotton claimants. . . .\11\
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    \11\ Keene Corp. v. U.S., 508 U.S. 200, 206 (1993).
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    The effect of section 1500 is that: ``(1) if the same claim 
is pending in another court at the time the complaint is filed 
in the Claims Court, the Claims Court has no jurisdiction. . . 
. (2) if the same claim is filed in another court after the 
complaint is filed in the Claims Court, the Claims Court is by 
that action divested of jurisdiction. . . .'' \12\ Thus, if a 
property owner wishes to both challenge the appropriateness of 
a taking of property and pursue monetary damages arising from 
the taking, the owner must choose to pursue one claim before 
the other--both claims may not be pursued at the same time.
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    \12\ UNR Industries, Inc. v. U.S., 962 F.2d 1013, 1021 (Fed. Cir. 
1992), overruled on other grounds, 113 S.Ct. 2039.
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                   II. The Three Tucker Act Shuffles

    This section will describe the ``Tucker Act Shuffles'' in 
the context of takings claims governed by the Fifth Amendment 
with a fact pattern drawn from the 1992 case of Lucas v. South 
Carolina Coastal Council,\13\ in which the Supreme Court ruled 
that if an environmental statute preventing an owner of a 
beachfront lot from erecting any building operates to deny the 
owner of all economically beneficial use of the land, a 
compensable taking may have occurred.
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    \13\ 505 U.S. 1003.
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A. Shuffle #1
    A property owner in a Lucas-like situation might want one 
of two remedies. The first remedy would be injunctive relief 
under the APA. The owner might make a claim that the federal 
agency ordering the owner not to build on the beachfront 
property was acting in excess of statutory authority and would 
seek that the agency be enjoined from ordering him not to 
build. The owner would have to go to the appropriate U.S. 
District Court to pursue this claim. If the owner's lawyer 
mistakenly chose to file a suit in the Court of Federal Claims, 
the suit would eventually be dismissed. Suit in the proper 
court would then have to be filed.
    The owner could alternately just desire to be compensated 
for his inability to build on his land. The owner would have to 
go to the Court of Federal Claims to pursue this claim (unless 
claiming damages of less than $10,000). If the owner's lawyer 
mistakenly chose to file a suit in a U.S. District Court, the 
suit would eventually be dismissed. Suit in the proper court 
would then have to be filed.
B. Shuffle #2
    The property owner might want to request both remedies 
discussed in the preceding section, in the alternative. The 
owner would first argue that the agency was acting in excess of 
statutory authority, and if that failed, would seek 
compensation for the property value lost as a result of 
enforcement of the order. The owner could not pursue both 
remedies in one court, but would have to go to a U.S. District 
Court for the injunctive relief and the Court of Federal Claims 
for a monetary award.
    To make matters worse, section 1500 of title 28 of the U.S. 
Code prevents the owner from going to the Court of Federal 
Claims until a final decision has been reached in the suit in 
U.S. District Court. However, the Court of Federal Claims' 
statute of limitations prevents the owner from bringing suit 
more than ``six years after [a] claim first accrues.'' \14\ If 
the suit in U.S. District Court takes too long, the owner may 
be left without remedy. Even if the statute of limitations does 
not present a problem, a property owner must wait until all 
appeals have been exhausted on a suit in a district court 
before starting all over again before the Court of Federal 
Claims.
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    \14\ 28 U.S.C. sec. 2501.
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C. Shuffle #3
    The attorney for a property owner might decide that the 
best legal theory to use against the government in order to 
gain compensation is ``tortious interference with use of 
property'' or some similar principle. However, the Federal Tort 
Claims Act provides that a tort claim is the one type of claim 
for monetary damages for which U.S. District Courts and not the 
Court of Federal Claims have jurisdiction.\15\ If a district 
court rules that the attorney was mistaken and should have 
pursued money damages through a Fifth Amendment takings claim 
in the Court of Federal Claims, the suit will be dismissed. 
Unfortunately, by this time the Court of Federal Claims' 
statute of limitations may have run. Alternately, the Court of 
Federal Claims could make the opposite determination.
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    \15\ See 28 U.S.C. sec. 1346(b)(1).
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D. Consequences of the Tucker Act Shuffles
    At best, the ``Tucker Act Shuffles'' needlessly delay, and 
increase the cost of, the ability of property owners to attain 
just relief when the federal government has confiscated their 
property. At worst, relief becomes unattainable. As Judge Loren 
Smith, Chief Judge of the Court of Federal Claims, has stated, 
the split in remedial jurisdiction between his court and the 
U.S. District Courts ``tends to bring discredit upon the courts 
and make litigation in this area far more expensive.'' \16\ 
And, as Nancie Marzulla, President and Chief Legal Counsel of 
the Defenders of Property Rights, has aptly pointed out, 
``nothing like this procedural nightmare exists for claimants 
seeking to enforce any other constitutional right.'' \17\
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    \16\ Hearing on H.R. 992 Before the Subcomm. on Immigration and 
Claims of the House Comm. on the Judiciary, 105th Cong., 1st Sess. 
(Sept. 10, 1997) (hereinafter cited as ``Hearing'').
    \17\ Id.
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    The ``Tucker Act Shuffles'' often lead to the waste of 
judicial resources. The Federal Circuit recently bemoaned the 
fact that they require it ``to engage in the wasteful exercise 
of deciding not how a dispute should be resolved, but what 
court should be responsible for resolving it.'' \18\ And, as 
Justice Scalia has pointed out, ``[n]othing is more wasteful 
than litigation about where to litigate, especially when all 
the options are courts within the same legal system that will 
apply the same law.'' \19\
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    \18\ National Center for Manufacturing Sciences v. U.S., 114 F.3d 
196, 197 (Fed. Cir. 1997).
    \19\ Id., quoting Bowen v. Massachusetts, 487 U.S. 879, 930 (1988) 
(Scalia, J., dissenting).
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                             III. H.R. 992

A. The legislation
    H.R. 992 will end all three ``Tucker Act Shuffles'' by (1) 
granting both U.S. District Courts and the Court of Federal 
Claims the power to determine all claims--whether for monetary 
relief or other relief (such as injunctive and declaratory 
relief) and including related tort claims--arising out of 
federal agency actions alleged to constitute takings in 
violation of the Fifth Amendment (or not to constitute takings 
only because the actions were not in accordance with lawful 
authority), \20\ (2) by granting the Court of Federal Claims 
the power to provide all remedies,\21\ and (3) by repealing 
section 1500 of section 28 of the U.S. Code.
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    \20\ The provision of concurrent jurisdiction to provide ``monetary 
relief'' would partially overturn Bowen v. Massachusetts, 487 U.S. 879 
(1988), where the Supreme Court ruled that in some instances the 
provision of monetary relief is an equitable remedy that can be granted 
by U.S. District Courts and presumably cannot be granted by the Court 
of Federal Claims. Bowen can result in a Tucker Act Shuffle #4, because 
the government can argue that the monetary relief at issue could only 
be granted by the Court of Federal Claims, or, alternately, by a U.S. 
District Court.
    \21\ A provision is not needed to allow U.S. District Courts to 
provide monetary remedies because current law grants these courts the 
ability to provide all remedies for claims within their jurisdiction. 
See 28 U.S.C. sec. 1651.
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    A property owner would elect which court shall hear and 
determine the claims as to him or herself. All appeals would be 
heard by the U.S. Court of Appeals for the Federal Circuit.
    H.R. 992 makes no substantive change to Fifth Amendment 
takings jurisprudence and creates no new cause of action. It 
simply alters court jurisdiction over claims that may be 
brought under current law. Additionally, the bill does not 
grant the Court of Federal Claims jurisdiction over all tort 
claims brought under the Federal Tort Claims Act. The bill only 
provides ancillary jurisdiction when a tort claim arises out of 
federal agency action alleged to constitute a taking.
B. Ability under the Constitution of the Court of Federal Claims to 
        Grant Equitable and Declaratory Relief
    The Justice Department notes that under H.R. 992, ``[t]he 
remedial powers of the Court of Federal Claims . . . would be 
essentially identical to the remedial powers of [U.S.] district 
courts[]'' and then raises the concern that ``assignment of 
these broad powers to the Article I Court of Federal Claims 
would raise serious constitutional difficulties. . . .'' \22\
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    \22\ Letter from Assistant Attorney General Andrew Fois to 
Representative Lamar Smith at 2-3 (Sept. 8, 1997) (hereinafter cited as 
``Letter'').
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    The Justice Department's concern is not warranted. It is 
belied by the Court of Federal Claims' current statutory 
powers. The court can already can provide declaratory and 
equitable relief in various areas encompassing about 40% of its 
docket. \23\ The Supreme Court in 1991 emphasized the ``Court's 
time-honored reading of the Constitution as giving Congress 
wide discretion to assign the task of adjudication in cases 
arising under federal law to legislative tribunals.'' \24\
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    \23\ See Hearing (statement of Loren Smith, Chief Judge, U.S. Court 
of Federal Claims). For example:

    (1) Both the United States Court of Federal Claims and the district 
courts of the United States shall have jurisdiction to render judgment 
on an action by an interested party objecting to a solicitation by a 
Federal agency for bids or proposals for a proposed contract or to a 
proposed award or the award of a contract or any alleged violation of 
statute or regulation in connection with a procurement or a proposed 
procurement. Both the United States Court of Federal Claims and the 
district courts of the United States shall have jurisdiction to 
entertain such an action without regard to whether suit is instituted 
before or after the contract is awarded.
    (2) To afford relief in such an action, the courts may award any 
relief that the court considers proper, including declaratory and 
injunctive relief except that any monetary relief shall be limited to 
bid preparation and proposal costs.

    28 U.S.C. sec. 1491(b). See also 28 U.S.C. sec. 1507.

    \24\ Freytag v. Commissioner, 501 U.S. 868, 889 (1991). This case 
involved the U.S. Tax Court, another Article I court.
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    In those cases where the Court of Federal Claims believes a 
statute to be unconstitutional, the court clearly has the power 
to provide equitable and declaratory relief. The court has the 
inherent authority and duty to disregard unconstitutional 
statutes, as does any other federal court. Thus, in IBM Corp. 
v. U.S.,\25\ the Federal Circuit recently affirmed a ruling by 
the Court of Federal Claims declaring a federal tax statute to 
be unconstitutional.
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    \25\ 59 F.3d 1234 (Fed. Cir. 1995), aff'd, 116 S. Ct. 1793 (1996).
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    Finally, federal agency heads grant equitable and 
declaratory relief in the form of final orders all the time. 
Very often, these orders are appealable directly to federal 
courts of appeal. \26\ Likewise, the Court of Federal Claims' 
granting of such relief in takings cases under this bill may be 
viewed as final orders of a federal agency that are reviewable 
by the U.S. Court of Appeals for the Federal Circuit.
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    \26\ See, e.g., 28 U.S.C. sec. 2341 et seq.
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    The Justice Department states that ``[a]ssignment of . . . 
broad powers to the Article I Court of Federal Claims would 
raise serious constitutional difficulties under Northern 
Pipeline. . . .'' \27\ In Northern Pipeline Construction Co. v. 
Marathon Pipeline Co.,\28\ the Supreme Court did rule that the 
legislative (created pursuant to Article I of the Constitution) 
bankruptcy court established by Congress in 1978 was 
unconstitutional because it was to exercise powers that only 
Article III courts (whose judges enjoyed life tenure and 
protection against salary diminution) could exercise. However, 
the bankruptcy court was established to at least in part 
adjudicate cases involving ``private rights'' (``the liability 
of one individual to another under the law . . .'' \29\). The 
Court made clear that ``only controversies [involving `public 
rights,' that at a minimum arise `between the government and 
others' \30\] may be removed from Article III courts and 
delegated to legislative courts or administrative agencies for 
their determination.'' \31\
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    \27\ Letter at 3.
    \28\ 458 U.S. 50 (1982).
    \29\ Id. at 69-70, quoting Crowell v. Benson, 285 U.S. 22, 51 
(1932).
    \30\ Northern Pipeline, 458 U.S. at 69, quoting Ex parte Bakelite 
Corp., 279 U.S. 438, 451 (1929). In Granfinanciera, S.A. v. Nordberg, 
492 U.S. 33 (1989), the Court ruled that ``the Federal Government need 
not be a party for a case to revolve around `public rights.' '' Id. at 
54 (citation omitted).
    \31\ Northern Pipeline, 458 U.S. at 70 (emphasis in original).
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     The Court in Northern Pipeline noted that:

          This Court has upheld the constitutionality of 
        legislative courts and administrative agencies created 
        by Congress to adjudicate cases involving `public 
        rights.' . . .
          This doctrine may be explained in part by reference 
        to the traditional principle of sovereign immunity, 
        which recognizes that the Government may attach 
        conditions to its consent to be sued. . . . But the 
        public-rights doctrine also draws upon the principle of 
        separation of powers, and a historical understanding 
        that certain prerogatives were reserved to the 
        political Branches of Government. The doctrine extends 
        only to matters arising `between the Government and 
        persons subject to its authority in connection with the 
        performance of the constitutional functions of the 
        executive or legislative departments' . . . and only to 
        matters that historically could have been determined 
        exclusively by those departments. . . . The 
        understanding of [the quoted Supreme Court cases] is 
        that the Framers expected that Congress would be free 
        to commit such matters completely to nonjudicial 
        executive determination, and that as a result there can 
        be no constitutional objection to Congress' employing 
        the less drastic expedient of committing their 
        determination to a legislative court or an 
        administrative agency. \32\
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    \32\ Id. at 67-68 (footnotes and citations omitted).

    When adjudicating Fifth Amendment takings claims, the Court 
of Federal Claims is clearly adjudicating public rights. Under 
Northern Pipeline, there is no constitutional impediment to the 
court being able to provide all manners of relief. \33\
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    \33\ The Court in Northern Pipeline stated that ``[w]hen Congress 
assigns these matters to administrative agencies, or to legislative 
courts, it has generally provided, and we have suggested that it may be 
required to provide, for Article III judicial review.'' Id. at 70 n.23 
(citation omitted). H.R. 992 assigns judicial review to the U.S. Court 
of Appeals for the Federal Circuit, an Article III court. In Thomas v. 
Union Carbide Agricultural Products Co., 473 U.S. 568 (1985), the Court 
approvingly noted the availability of review by an Article III court, 
stating that ``in the circumstances, the review afforded preserves the 
`appropriate exercise of the judicial function.' '' Id. at 592, quoting 
Crowell v. Benson, 285 U.S. 22, 54 (1932).
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    In Commodity Futures Trading Commission v. Schor, \34\ the 
Supreme Court indicated that other factors should also be taken 
into account in determining the appropriateness of adjudication 
by non-Article III courts, stating that ``this Court has 
rejected any attempt to make determinative for Article III 
purposes the distinction between public rights and private 
rights. . . .'' \35\
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    \34\ 478 U.S. 833 (1986).
    \35\ Id. at 853.
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    The Court stated that:
          [T]he constitutionality of a given congressional 
        delegation of adjudicative functions to a non-Article 
        III body must be assessed by reference to the purposes 
        underlying the requirements of Article III. . . . This 
        inquiry, in turn, is guided by the principle that 
        ``practical attention to substance rather than 
        doctrinaire reliance on formal categories should inform 
        application of Article III.'' \36\
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    \36\ Id. at 847-48, quoting Thomas v. Union Carbide Agricultural 
Products Co., 473 U.S. 568, 587 (1985).
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    What are the purposes underlying Article III? ``Article III 
. . . serves both to protect `the role of the independent 
judiciary within the constitutional scheme of tripartite 
government,' . . . and to safeguard litigants' `right to have 
claims decided before judges who are free from potential 
domination by other branches of government.' '' \37\
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    \37\ Commodity Futures Trading Commission, 478 U.S. at 848, quoting 
Thomas, 473 U.S. at 583 and United States v. Will, 449 U.S. 200, 218 
(1980), respectively.
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    As to the latter purpose, ``Article III does not confer on 
litigants an absolute right to the plenary consideration of 
every nature of claim by an Article III court. . . . [and] 
Article III's guarantee of an impartial and independent federal 
adjudication is subject to waiver . . . .'' \38\
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    \38\ Commodity Futures Trading Commission, 478 U.S. at 848.
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    Since H.R. 992 provides property owners with the option of 
bringing their claims before Article III courts, property 
owners choosing the Court of Federal Claims should be 
understood as having waived their right to adjudication by 
Article III courts. Since the President appoints the judges on 
the Court of Federal Claims,\39\ it is hard to argue that 
adjudication before this court will subject the executive 
branch to domination by another branch of government.
---------------------------------------------------------------------------
    \39\ See 28 U.S.C. sec. 171.
---------------------------------------------------------------------------
    As to the former purpose:
          In determining the extent to which a given 
        congressional decision to authorize the adjudication of 
        Article III business in a non-Article III tribunal 
        impermissibly threatens the institutional integrity of 
        the Judicial Branch, the Court has declined to adopt 
        formalistic and unbending rules. . . . [S]uch rules . . 
        . might . . . unduly constrict Congress' ability to 
        take needed and innovative action pursuant to its 
        Article I powers. Thus, in reviewing Article III 
        challenges, we have weighed a number of factors, none 
        of which has been deemed determinative. . . . Among the 
        factors . . . are the extent to which the ``essential 
        attributes of judicial power'' are reserved to Article 
        III courts, and, conversely, the extent to which the 
        non-Article III forum exercises the range of 
        jurisdiction and powers normally vested only in Article 
        III courts, the origins and importance of the right to 
        be adjudicated, and the concerns that drove Congress to 
        depart from the requirements of Article III.\40\
---------------------------------------------------------------------------
    \40\ Commodity Futures Trading Commission, 478 U.S. at 851.
---------------------------------------------------------------------------
    This Committee has compelling concerns in wanting to expand 
the jurisdiction of the Court of Federal Claims. The three 
``Tucker Act Shuffles'' currently act to frustrate citizens' 
rights to protect and enjoy the fruits of their property. 
Property rights are a fundamental component of the Western 
concept of liberty, and were considered as such by our Founding 
Fathers.\41\ Granting the Court of Federal Claims the ability 
to provide equitable and declaratory relief gives property 
owners the tools needed to more effectively vindicate these 
rights.
---------------------------------------------------------------------------
    \41\ See Ely, Jr., The Guardian of Every Other Right (1992).
---------------------------------------------------------------------------
    Further, the Court of Federal Claims already has the 
ability to grant equitable and declaratory relief in many areas 
of its jurisdiction. H.R. 992 only seeks to narrowly extend 
this power of the court to cases implicating the takings clause 
of the Fifth Amendment.
    Finally, in weighing the stated factors, the Court 
considered the right of litigants to elect either an Article I 
or Article III court, and supervisory control by an Article III 
court, as important elements pointing towards the 
appropriateness of adjudication by an Article I court.\42\ H.R. 
992 provides for such an election by property owners. In having 
all appeals heard by the U.S. Court of Appeals for the Federal 
Circuit, the bill also provides for supervisory review by an 
Article III court.
---------------------------------------------------------------------------
    \42\ Commodity Futures Trading Commission, 478 U.S. at 855.
---------------------------------------------------------------------------
    For the above reasons, H.R. 992 proposes changes in court 
jurisdiction that are constitutionally permissible according to 
the analysis required by Northern Pipeline and Commodity 
Futures Trading Commission.
C. Necessity for Statutory Repeal of Section 1500
    Judge Loren Smith states that the repeal of section 1500 
``will significantly improve the administration of justice at 
the [C]ourt [of Federal Claims]. Section 1500 today serves no 
useful purpose and is a serious trap for the unsophisticated 
lawyer or plaintiff.'' \43\
---------------------------------------------------------------------------
    \43\ Hearing.
---------------------------------------------------------------------------
    The Justice Department argues that the decision in 
Loveladies Harbor, Inc. v. U.S.\44\ obviates the need to repeal 
sec. 1500.\45\ This is not the case. In Loveladies Harbor, the 
U.S. Court of Appeals for the Federal Circuit ruled that 
``[f]or the Court of Federal Claims to be precluded from 
hearing a claim under section 1500, the claim pending in 
another court must arise from the same operative facts and must 
seek the same relief.'' \46\ A pending suit in a U.S. District 
Court for injunctive relief did not bar a later-filed case in 
the Court of Federal Claims for monetary damages--the relief 
sought in both cases was different.
---------------------------------------------------------------------------
    \44\ 27 F. 3d 1545 (Fed. Cir. 1994).
    \45\ See Hearing (statement of Assistant Attorney General Eleanor 
Acheson).
    \46\ Loveladies Harbor, 27 F.3d at 1551 (emphasis in original).
---------------------------------------------------------------------------
    Loveladies Harbor was an extremely sympathetic plaintiff. 
Suits were brought in a U.S. District Court and the Court of 
Federal Claims in 1982 and 1983, respectively, and the Federal 
Circuit did not decide until 1994 the issue of whether the 
Court of Federal Claims' judgment should be vacated. If the 
Federal Circuit had ruled differently, the Court of Federal 
Claims' six year statute of limitations would have barred 
Loveladies Harbor from seeking monetary relief for its loss. 
Three dissenting judges argued that the case was decided 
wrongly and that only the similarity of the facts underlying 
the two suits is statutorily relevant in deciding whether 
section 1500 applies.\47\ In future litigation, the Justice 
Department may argue and persuade courts that the theory 
enunciated in Loveladies Harbor should be limited to its facts. 
Repeal of section 1500 will ensure that this does not happen.
---------------------------------------------------------------------------
    \47\ See id. at 1556-60 (Mayer, Nies & Rader, dissenting).
---------------------------------------------------------------------------
    The Justice Department argues that repeal of section 1500 
will allow for forum shopping: ``For example, if section 1500 
were repealed, a plaintiff would be able to begin litigating 
aspects of a contract claim in district court and subsequently 
initiate a suit before the Court of Federal Claims in an effort 
to find the most sympathetic forum.'' \48\ However, as the 
Justice Department had admitted, under current law ``the 
government presumably would have the right to transfer the 
cases and consolidate them in one forum. . . .'' \49\
---------------------------------------------------------------------------
    \48\ Hearing (statement of Assistant Attorney General Eleanor 
Acheson).
    \49\ The Right to Own Property: Hearing on S. 605 Before the Senate 
Comm. on the Judiciary, 104th Cong., 1st Sess. 49 (1995) (statement of 
John Schmidt, Associate Attorney General).
---------------------------------------------------------------------------
D. Concerns over Forum Shopping
    All appeals in cases commenced by authority of this bill 
will be heard by the Court of Appeals for the Federal Circuit. 
Thus, precedent in takings cases will remain uniform regardless 
of what trial court--a U.S. District Court or the Court of 
Federal Claims--a property owner initially chooses. A citizen 
will not be able to avoid unfavorable precedent by going to one 
court or the other.
E. The Watt Amendment
    Representative Melvin Watt unsuccessfully offered an 
amendment during Committee consideration of H.R. 992 that would 
have granted U.S. District Courts, but not the Court of Federal 
Claims, jurisdiction to determine all claims (whether for 
monetary or other relief) arising out of alleged takings (or 
agency actions not constituting takings because they were not 
in accordance with lawful authority).\50\
---------------------------------------------------------------------------
    \50\ The amendment also would have struck the bill's repeal of 
section 1500 of title 28 of the U.S. Code.
---------------------------------------------------------------------------
    Assistant Attorney General Eleanor Acheson testified at the 
Subcommittee on Immigration and Claims' hearing on H.R. 992 
that ``[t]he Court of Federal Claims has developed experience 
in resolving and streamlining cases under the Just Compensation 
Clause. . . .'' \51\ In addition, she stated that ``takings 
claims may involve extensive discovery and trial on significant 
issues with which a federal district court has little 
experience.'' \52\ It would make little sense for Congress to 
grant only U.S. District Courts the power to provide complete 
relief in takings cases, forcing many property owners to 
continue to adjudicate their claims in two different courts 
should they want to rely on the Court of Federal Claims' 
expertise. This is the type of dilemma the bill was designed to 
end.
---------------------------------------------------------------------------
    \51\ Hearing.
    \52\ Id.
---------------------------------------------------------------------------
    The Congress should endeavor to make it as easy as possible 
for property owners to vindicate their rights after their 
property has been taken by the federal government. If property 
owners want to pursue their claims in courts close to home, 
they should be able to choose U.S. District Courts. If property 
owners want to utilize the expertise of a specialized tribunal, 
they should be able to choose the Court of Federal Claims.

                                Hearings

    The Committee's Subcommittee on Immigration and Claims held 
one day of hearings on H.R. 992 on September 10, 1997. 
Testimony was received from Michael Noone, Catholic University 
of America, Columbus School of Law; Stephen Kinnard, Skadden, 
Arps, Slate, Meagher & Flom; John Echeverria, Georgetown 
University Law Center; Eleanor Acheson, Assistant Attorney 
General, Office of Policy Development, U.S. Department of 
Justice; the Honorable Loren Smith, Chief Judge, U.S. Court of 
Federal Claims; Nancie Marzulla, President and Chief Legal 
Counsel, Defenders of Property Rights; Wallace Klussmann; and 
Edward Baird, Jr., Wilcox & Baird. Additional material was 
received from Ms. Marzulla.

                        Committee Consideration

    On October 6, 1997 the Subcommittee on Immigration and 
Claims met in open session and ordered reported the bill H.R. 
992 with an amendment in the nature of a substitute, by a voice 
vote, a quorum being present. On October 7, 1997, the Committee 
met in open session and ordered reported favorably the bill 
H.R. 992 without amendment by a recorded vote of 17 to 13, a 
quorum being present.

                         Vote of the Committee

    There were two recorded votes (one on an amendment and one 
on final passage) during the Committee's consideration of H.R. 
992, as follows:

                            Rollcall No. 1.

    Amendment offered by Mr. Watt to grant U.S. District 
Courts, but not the Court of Federal Claims, jurisdiction to 
determine all claims (whether for monetary or other relief) 
arising out of alleged takings, and to strike the repeal of 
section 1500 of title 28 of the U.S. Code. Defeated 12-16.

        AYES                          NAYES
Mr. Conyers                         Mr. Hyde
Mr. Frank                           Mr. Sensenbrenner
Mr. Berman                          Mr. Gekas
Mr. Nadler                          Mr. Coble
Mr. Scott                           Mr. Smith
Mr. Watt                            Mr. Gallegly
Ms. Lofgren                         Mr. Canady
Ms. Jackson Lee                     Mr. Inglis
Ms. Waters                          Mr. Goodlatte
Mr. Delahunt                        Mr. Buyer
Mr. Wexler                          Mr. Bryant
Mr. Rothman                         Mr. Chabot
                                    Mr. Barr
                                    Mr. Jenkins
                                    Mr. Hutchinson
                                    Mr. Cannon

                             Rollcall No. 2

    Vote on Final Passage: Adopted 17-13.

        AYES                          NAYS
Mr. Hyde                            Mr. Conyers
Mr. Sensenbrenner                   Mr. Frank
Mr. Gekas                           Mr. Berman
Mr. Coble                           Mr. Nadler
Mr. Smith                           Mr. Scott
Mr. Gallegly                        Mr. Watt
Mr. Canady                          Ms. Lofgren
Mr. Inglis                          Ms. Jackson Lee
Mr. Goodlatte                       Ms. Waters
Mr. Buyer                           Mr. Meehan
Mr. Bono                            Mr. Delahunt
Mr. Bryant                          Mr. Wexler
Mr. Chabot                          Mr. Rothman
Mr. Barr
Mr. Jenkins
Mr. Hutchinson
Mr. Cannon

                      Committee Oversight Findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

         Committee on Government Reform and Oversight Findings

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 2(l)(3)(B) of House Rule XI is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 2(l)(3)(C) of rule XI of the 
Rules of the House of Representatives, the Committee sets 
forth, with respect to the bill, H.R. 992, the following 
estimate and comparison prepared by the Director of the 
Congressional Budget Office under section 403 of the 
Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, October 23, 1997.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 992, the Tucker 
Act Shuffle Relief Act of 1997.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Deborah Reis, 
who can be reached at 226-2860.
            Sincerely,

                                           June E. O'Neill, Director.  
    Enclosure.

    cc: Honorable John Conyers, Jr.,
         Ranking Minority Member.
H.R. 992--Tucker Act Shuffle Relief Act of 1997
    H.R. 992 would grant jurisdiction over certain claims 
against the United States to both the U.S. Court of Federal 
Claims and U.S. district courts. Specifically, the bill would 
give these courts the authority to adjudicate all claims 
against the government arising from actions of federal agencies 
that are alleged to take private property in violation of the 
U.S. Constitution. Plaintiffs would choose which court would 
hear their claim, and either court would have the power to 
grant monetary or any other relief (such as injunction).
    Based on information provided by a number of federal and 
private legal authorities. CBO estimates that enacting H.R. 992 
would have no significant effect on the budget because its 
provisions would not affect the outcome of complaints or cause 
any material change in the caseload of the federal court 
system. Only a small percentage of lawsuits brought against the 
United States in any given year involve takings of property and 
the number of these that go to trial is smaller still. It is 
unclear whether the bill would have any effect on the outcome 
of the number of such suits. The bill could result in earlier 
decisions in some proceedings, which may change the timing of 
federal court and agency costs, but we expect that such effects 
would be minimal.
    Section 4 of the Unfunded Mandates Reform Act of 1995 
excludes from application of that act legislative provisions 
that enforce constitutional rights of individuals. Because the 
changes to federal jurisdiction over property rights cases 
could involve the enforcement of certain individual 
constitutional rights, S. 992 may be excluded. In any event, 
because the changes only affect federal court procedures, the 
bill would not impose any enforceable duties on state, local, 
or tribal governments or the private sector.
    The CBO staff contact for this estimate is Deborah Reis, 
who can be reached at 226-2860. This estimate was approved by 
Robert A. Sunshine, Deputy Assistant Director for Budget 
Analysis.

                   Constitutional Authority Statement

    Pursuant to Rule XI, clause 2(l)(4) of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article 1, section 8, clauses 9 and 18, and 
Article 4, section 3, clause 2, of the Constitution.

                      Section-by-Section Analysis

                         Section 1. Short title

    The Act may be cited as the ``Tucker Act Shuffle Relief Act 
of 1997.''

                  Section 2. Tucker Act Shuffle Relief

    Subsection (a)(1) of section 2 provides that U.S. District 
Courts and the Court of Federal Claims shall each have original 
jurisdiction to hear and determine all claims--whether for 
monetary relief or other relief (such as injunctive and 
declaratory relief) and including related tort claims--arising 
out of the action of a federal agency alleged (1) to constitute 
a taking in violation of the Fifth Amendment, or (2) not to 
constitute such a taking only because the action was not in 
accordance with lawful authority. A property owner would 
typically state a claim in the alternative: the agency action 
is invalid and should be enjoined, but if it is ruled to be 
valid, then compensation should be paid pursuant to the Fifth 
Amendment. To the extent necessary, this subsection overrides 
``preclusive review'' statutes in federal law.
    Subsection (a)(2) of section 2 provides that the plaintiff 
shall elect which court--a U.S. District Court or the Court of 
Federal Claims--shall hear and determine the claims as to that 
plaintiff. The court in which the plaintiff commences an action 
is the court elected.
    Subsection (a)(3) of section 2 provides that a third party 
cannot be involuntarily joined to a takings case that is being 
considered by the Court of Federal Claims only by reason of 
section 2 if the party would be entitled to a determination by 
an Article III court of the claim with respect to which the 
party is to be joined.
    Subsection (b) of section 2 provides that the Court of 
Federal Claims shall have the power to grant equitable and 
declaratory remedies when appropriate with respect to claims 
made part of its jurisdiction by section 2.
    Subsection (c) of section 2 provides that all appeals from 
actions commenced under the section in either U.S. District 
Courts or the Court of Federal Claims shall be to the U.S. 
Court of Appeals for the Federal Circuit.
    Subsection (d) of section 2 provides definitions of 
``agency'' and ``agency action.''
    Subsection (e) of section 2 amends section 1346(b) of title 
28 of the U.S. Code. Section 1346(b) allocates court 
jurisdiction over actions for money damages alleging the 
commission of torts by federal employees (while acting within 
the scope of their office or employment). The section is 
amended to clarify that while U.S. District Courts usually have 
exclusive jurisdiction over such actions, the Court of Federal 
Claims also has jurisdiction over tort actions where there is a 
related claim brought pursuant to section 2 of this bill.
    Section 3 repeals section 1500 of title 28 of the U.S. 
Code. This repeal is complete and is not limited to Fifth 
Amendment takings cases.

                              Agency Views

    Assistant Attorney General Eleanor Acheson stated in 
testimony before the Subcommittee on Immigration and Claims on 
September 10, 1997, that the U.S. Department of Justice opposed 
H.R. 992 as introduced.

H.L.C.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3 of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

                      TITLE 28, UNITED STATES CODE

          * * * * * * *

                    PART IV--JURISDICTION AND VENUE

          * * * * * * *

               CHAPTER 85--DISTRICT COURTS; JURISDICTION

          * * * * * * *

Sec. 1346. United States as defendant

    (a) * * *
    (b)(1) Subject to the provisions of chapter 171 of this 
title and the Tucker Act Shuffle Relief Act of 1997, the 
district courts, together with the United States District Court 
for the District of the Canal Zone and the District Court of 
the Virgin Islands, shall have exclusive jurisdiction of civil 
actions on claims against the United States, for money damages, 
accruing on and after January 1, 1945, for injury or loss of 
property, or personal injury or death caused by the negligent 
or wrongful act or omission of any employee of the Government 
while acting within the scope of his office or employment, 
under circumstances where the United States, if a private 
person, would be liable to the claimant in accordance with the 
law of the place where the act or omission occurred.
          * * * * * * *

           CHAPTER 91--UNITED STATES COURT OF FEDERAL CLAIMS

Sec.
1491. Claims against United States generally; actions involving 
          Tennessee Valley Authority.
     * * * * * * *
[1500. Pendency of claims in other courts.]
     * * * * * * *

[Sec. 1500. Pendency of claims in other courts

    [The United States Court of Federal Claims shall not have 
jurisdiction of any claim for or in respect to which the 
plaintiff or his assignee has pending in any other court any 
suit or process against the United States or any person who, at 
the time when the cause of action alleged in such suit or 
process arose, was, in respect thereto, acting or professing to 
act, directly or indirectly under the authority of the United 
States.]

                            Dissenting Views

           H.R. 992 ``Tucker Act Shuffle Relief Act of 1997''

    We oppose H.R. 992 because it is unconstitutional, will 
lead to duplicative litigation and forum shopping, and raises 
environmental and other policy concerns. Although the bill's 
goal is worthwhile, the legislation itself is flawed and we 
dissent for the following reasons.
I. H.R. 992 is Unconstitutional
    The stated purpose of the Tucker Act Shuffle Relief Act of 
1997 is to eliminate the so-called ``shuffle'' between the U.S. 
District Courts and the U.S. Court of Claims in takings cases. 
H.R. 992 would achieve this goal by expanding the jurisdiction 
of both the Court of Federal Claims and the U.S. District 
Courts. The bill provides that 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 to constitute a taking.''
    Currently, a property owner must file two separate lawsuits 
in order to challenge the validity of an agency action and 
obtain compensation if the agency action cannot be invalidated. 
The lawsuit to invalidate the agency action must be filed in 
the U.S. District Court, which is an Article III court. Only 
Article III courts have the power of judicial review and the 
power to enjoin agency actions. In order to obtain monetary 
relief, the property owner must file a lawsuit in the Court of 
Federal Claims, which has the sole authority to award monetary 
compensation in a takings case. Generally, when two such 
lawsuits are filed, proceedings in the Claims Court are stayed 
until the substantive challenge pending in the District Court 
is resolved.
    Proponents of H.R. 992 believe that expanding the 
jurisdiction and powers of the U.S. Court of Federal Claims 
will simplify and expedite judicial proceedings. While all of 
us support simplifying and expediting judicial proceedings, we 
cannot support undermining the Constitution to achieve that 
goal. Expanding the jurisdiction and equitable powers of the 
Court of Claims, as envisioned by H.R. 992, violates the 
Constitution by improperly extending the authority of Article 
III courts to Article I Courts. The Supreme Court has 
previously ruled that Congress cannot grant an Article I court 
the remedial powers of an Article III court. In Northern 
Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 
(1982), the Court invalidated a broad expansion of Article I 
Bankruptcy Court jurisdiction on the grounds that giving 
Article III powers to the Bankruptcy Court would represent an 
``encroachment or aggrandizement'' at the expense of Article 
III courts.
    Although we object to expanding of the authority of the 
Court of Claims, we believe that there may be a way to achieve 
the goals of H.R. 992 without violating the Constitution. The 
Ranking Member of the Immigration and Claims Subcommittee, 
Melvin L. Watt (D-NC), offered an amendment which would have 
permitted plaintiffs to choose either to bifurcate their case 
between the Court of Claims and the U.S. District Court or to 
consolidate all claims in the U.S. District Court. The 
amendment would have also permitted appeals of the consolidated 
cases to be heard in the Appellate Circuit where the District 
Court is located. This would prevent the overburdening the 
docket of the Court of Appeals for the Federal Circuit. 
Unfortunately, the amendment failed by a vote of 12-16.
II. H.R. 992 Will Lead to Duplicative Litigation and Forum Shopping
    If Mr. Watt's amendment were adopted, it would have also 
preserved Section 1500 of Title 28, which divests jurisdiction 
of the Court of Claims when a similar claim has been filed or 
is pending in any other court. If Section 1500 were eliminated, 
we would expect to see a rash of duplicative litigation and 
forum shopping which would unnecessarily waste limited judicial 
resources.
    Proponents of H.R. 992 assert that elimination of Section 
1500 is necessary to protect plaintiffs against sophisticated 
legal maneuvering by lawyers challenging the jurisdiction of 
various courts. However, in Loveladies Harbor, Inc. v. U.S., 27 
F.3d 1545 (Fed. Cir. 1994), the Federal Circuit settled 
jurisdictional questions surrounding Section 1500 by concluding 
it only precluded actions seeking the same relief. Therefore, a 
claim arising out of the same event but seeking different 
relief, could still be adjudicated in both the District Court 
and the Court of Claims. Accordingly, the concerns raised by 
proponents of HR 992 regarding Section 1500 are unwarranted.
III. H.R. 992 Raises Environmental and Other Policy Concerns
    Passage of H.R. 992 also raises several serious public 
policy concerns. HR 992 could be construed to undermine various 
preemptive review provisions in federal environmental statutes. 
For example, the Clean Air Act limits judicial review of its 
regulations to the U.S. Court of Appeals for the District of 
Columbia. HR 992 could be construed as overriding this 
provision, thereby granting any District Court or the Court of 
Claims jurisdiction to invalidate any clean air regulations 
which operate to limit property rights. This could 
significantly increase the chance of multiple, inconsistent 
rulings on agency actions and lead to further opportunities to 
forum shop.
    In light of the consequences of overriding preemptive 
review, some are concerned that the underlying purpose of this 
provision of HR 992 is to discourage Congress from passing any 
future environmental legislation since they can only operate 
efficiently with strong preemptive review provisions. Without 
such statutes, however, property owners will be free from 
reasonable limitations placed on them for the purpose of 
protecting the public's health and safety.
    Second, granting equitable and declaratory powers to 
Article I judges serving on the Court of Federal Claims could 
unnecessarily extend the opportunity to engage in judicial 
activism to that court. Since many proponents of HR 992 also 
count themselves among the harshest critics of judicial 
activism, such a extension of the Court of Federal Claims 
authority seems incongruous.
    Finally, HR 992 has the net effect of unjustly elevating 
takings actions for specialized treatment under the Tucker Act. 
There are other situations, not involving property rights, 
where a plaintiff must bifurcate causes of action arising from 
the same situation between the Court of Federal Claims and 
District Courts--e.g., a breach of contract action against the 
United States and an invalidation action.\1\ If bifurcation is 
a problem in the property rights context, it is a problem in 
these contexts as well. Yet, if H.R. 992 is passed, such claims 
will be disparately treated.
---------------------------------------------------------------------------
    \1\ CRS Report, supra n. 4 at 3. See statement of Prof. Michael F. 
Noone at Sept. 10, 1997 Subcommittee hearing.

                                   John Conyers, Jr.
                                   Barney Frank.
                                   Howard L. Berman.
                                   Robert C. Scott.
                                   Melvin L. Watt.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   Martin T. Meehan.

