[House Report 107-444]
[From the U.S. Government Publishing Office]



107th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     107-444

======================================================================



 
                         REFERRAL OF H.R. 1258

                                _______
                                

   May 7, 2002.--Referred to the Private Calendar and ordered to be 
                                printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                       [To accompany H. Res. 103]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
resolution (H. Res. 103) referring the bill (H.R. 1258), 
entitled ``A bill for the relief of Sarabeth M. Davis, Robert 
S. Borders, Victor Maron, Irving Berke, and Adele E. Conrad'', 
to the chief judge of the United States Court of Federal Claims 
for a report thereon, having considered the same, reports 
favorably thereon without amendment and recommends that the 
resolution be agreed to.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     1
Background and Need for the Legislation..........................     1
Hearings.........................................................     2
Committee Consideration..........................................     2
Committee Oversight Findings.....................................     3
Performance Goals and Objectives.................................     3
New Budget Authority and Tax Expenditures........................     3
Congressional Budget Office Cost Estimate........................     3
Constitutional Authority Statement...............................     4
Agency Views.....................................................     5
Markup Transcript................................................     6

                          Purpose and Summary

    The resolution would refer H.R. 1258 to the U.S. Court of 
Federal Claims for an evaluation of this claim as well as a 
determination of any amount of appropriate compensation.

                Background and Need for the Legislation

    In 1976, the Los Caballeros Center partnership bought 9 
acres of property adjacent to the U.S. Army's Los Alamitos, 
California reserve center. In 1980, with the approval of the 
U.S. Army and the City of Los Alamitos, the land was developed. 
In November 1989, the partnership agreed to sell the property 
to Grace Church for $14.7 million. On February 12, 1990, 2 days 
before the closing of escrow, the Army informed the City 
Council that part of the property was now in the Army's 
proposed new ``Clear Zone''--the area around the base that the 
military recommends local governments keep free from any 
development to ensure the safety of aircraft operations. Later 
that year, it was clarified that the property was not in the 
Clear Zone at that time, but a preliminary study recommended 
the property be included in the Clear Zone. Four years later, 
the Army finally issued a new Clear Zone plan which excluded 
the property from any restriction on commercial development. 
Unfortunately, because of the Army's delay of 4 years on a 
decision and the City Council's refusal to allow any rezoning 
of the property, the partnership was forced into financial 
ruin. In May 1992, the partnership was forced to file Chapter 
11 bankruptcy. Finally, in August 1995, the partnership lost 
the property to foreclosure. In 1996, the partnership estimated 
their losses at $21 million. The five claimants covered by the 
bill and resolution are now elderly and have lost what would 
have provided for their retirement.
    The partnership initially pursued a claim against the 
Federal Government under the Federal Tort Claims Act. The Army 
denied the claim stating that the claim was a taking of private 
property rather than a tort claim. They advised the partnership 
to file a takings claim under the Tucker Act. Per Army 
instructions, the partnership filed a takings claim in August 
1995. However, in June 1996, when the case came before the 
Court of Federal Claims, the Justice Department (representing 
the Department of the Army) argued successfully that the claim 
was not a takings claim, but a tort claim. By then, the time 
limit on the partnership's ability to file an appeal of the 
Federal Tort Claims Act denial by the Department of the Army 
had expired.
    In its decision, the Court of Federal Claims dismissed the 
case on jurisdictional grounds, yet felt compelled to express 
it's sympathy for the partnership stating ``The procedural 
history of this case shows that the military effectively 
mislead [sic] plaintiffs in this matter . . . Congress did not 
intend those jurisdictional limits to be manipulated to prevent 
a claimant from recovering compensation against the 
Government.''
    In a July 21, 2000, letter from the Department of the Army, 
Secretary Caldera stated ``I regrettably conclude that I am 
unable to provide any relief to the claimants under existing 
law. Particularly in view of the Court of Federal Claims 
decision regarding this matter, however, I believe this may be 
an instance where private relief legislation is appropriate.''

                                Hearings

    No hearings were held on H. Res. 103.

                        Committee Consideration

    On November 1, 2001, the Subcommittee on Immigration and 
Claims met in open session and ordered favorably reported the 
resolution H. Res. 103 by voice vote, a quorum being present. 
On April 24, 2002, the Committee met in open session and 
ordered favorably reported the resolution H. Res. 103 without 
amendment by voice vote, a quorum being present.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII 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.

                    Performance Goals and Objectives

    H. Res. 103 does not authorize funding. Therefore, clause 
3(c) of rule XIII of the Rules of the House of Representatives 
is inapplicable.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of House rule XIII is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the resolution, H. Res. 103, the following estimate 
and comparison prepared by the Director of the Congressional 
Budget Office under section 402 of the Congressional Budget Act 
of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, April 29, 2002.
Hon. F. James Sensenbrenner, Jr., 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. Res. 103, a 
resolution referring the bill (H.R. 1258) entitled ``A bill for 
the relief of Sarabeth M. Davis, Robert S. Borders, Victor 
Maron, Irving Berke, and Adele E. Conrad,'' to the chief judge 
of the United States Court of Federal Claims for a report 
thereon.
    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,
                                  Dan L. Crippen, Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H. Res. 103--A resolution referring the bill (H.R. 1258), entitled ``A 
        bill for the relief of Sarabeth M. Davis, Robert S. Borders, 
        Victor Maron, Irving Berke, and Adele E. Conrad,'' to the chief 
        judge of the United States Court of Federal Claims for a report 
        thereon.
    H. Res. 103 would refer H.R. 1258, a private relief bill 
introduced in the House of Representatives on March 27, 2002, 
to the chief judge of the United States Court of Federal 
Claims. The chief judge would then report to the Congress on 
the court's findings of fact and conclusions of law regarding 
the claims addressed in H.R. 1258, along with the amount, if 
any, legally or equitably due to the claimants.
    CBO estimates that H. Res. 103 would have no significant 
impact on the Federal budget. Payment to the claimants of any 
amount based on the report of the Court of Federal Claims would 
depend on further Congressional action. The resolution would 
not affect receipts or direct spending; therefore, pay-as-you-
go procedures would not apply.
    The CBO staff contact for this estimate is Deborah Reis, 
who can be reached at 226-2860. This estimate was approved by 
Peter H. Fontaine, Deputy Assistant Director for Budget 
Analysis.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article 1, section 8 of the Constitution.

                              Agency Views


                           Markup Transcript



                            BUSINESS MEETING

                       WEDNESDAY, APRIL 24, 2002

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:09 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
    Chairman Sensenbrenner. [Presiding.] The Committee will be 
in order.
    [Intervening business.]
    Chairman Sensenbrenner. Okay. The next item on the agenda 
is the adoption of H.R. 486 for the relief of Barbara Makuch, 
H.R. 487 for the relief of Eugene Makuch, and H. Res. 103 
referring the bill H.R. 1258 to the chief judge of the U.S. 
Court of Federal Claims for a report thereon. Without 
objection, the bills will be considered en bloc.
    [The resolution, H. Res. 103, follows:]

    
    
    Chairman Sensenbrenner. The Chair recognizes the gentleman 
from Pennsylvania for a motion.
    Mr. Gekas. Mr. Chairman, the Subcommittee on Immigration 
and Claims reports favorably the bills H.R. 486, H.R. 487, and 
H. Res. 103 and moves their favorable recommendation to the 
full House.
    Chairman Sensenbrenner. Without objection, they will be 
considered as read and open for amendment at any point. Without 
objection, statements can be placed in the record at this 
point.
    Are there any amendments to either of the bills? If not, 
the Chair notes the presence of a reporting quorum. The 
question is on----
    Ms. Jackson Lee. Sorry, Mr. Chairman. Could you repeat the 
bills that you--are you doing these en bloc?
    Chairman Sensenbrenner. H.R. 486, H.R. 487, and H. Res. 103 
en bloc.
    Ms. Jackson Lee. Mr. Chairman?
    Chairman Sensenbrenner. The gentlewoman from Texas.
    Ms. Jackson Lee. Let me just add my support and I will 
offer a statement in the record for those three bills. Thank 
you.
    Chairman Sensenbrenner. The Chair notes the presence of a 
reporting quorum. The question is on reporting the three bills 
favorably. Those in favor will signify by saying aye? Those 
opposed, no?
    The ayes appear to have it. The ayes have it, and the bills 
are favorably reported. Without objection, the Chairman is 
authorized to move to go to conference pursuant to House rules. 
Without objection, the staff is directed to make any technical 
and conforming changes, and all Members will be given 2 days, 
as provided by House rules, in which to submit additional 
supplemental, dissenting, or minority views.
    At this point in time, because the gentleman from 
California, Mr. Berman, had an appointment, the Committee 
stands in recess subject--okay. Then the Chair recognizes the 
gentleman from North Carolina, Mr. Coble.

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