CRS Report for Congress
Received through the CRS Web
"Property Rights" Bills Take a Process Approach:
H.R. 992 and H.R. 1534
Updated June 24, 1998
American Law Division
Congressional Research Service ˜ The Library of Congress
In the 105th Congress, the property rights agenda has shifted from "compensation" to
"process" bills. While the former would ease the standards for when property owners harmed
by government action are compensated, the new approach simply streamlines how federal
courts handle such claims. This report examines the three leading process bills -- H.R. 992,
House-passed H.R. 1534, and Senate-reported H.R. 1534. The bills embody two process
approaches: allowing property owners suing the United States to bring invalidation and
compensation claims in the same court, and lowering abstention and ripeness barriers when
suing local governments in federal court for property rights violations.
"Property Rights" Bills Take a Process Approach: H.R. 992
and H.R. 1534
A new breed of “property rights” bills in the 105th Congress seeks to abbreviate
the judicial process used by property owners to assert claims based on adverse
impacts of government actions to their property. The bills purport to alter only the
judicial process, rather than the standards for judging the claims. In adopting this
approach, bill supporters hope to avoid the controversy sparked by the leading
“property rights” bills of recent Congresses — in particular, by bills affording property
owners monetary compensation on easier-to-meet standards than those of the Fifth
Amendment Takings Clause.
H.R. 992 and H.R. 1534 (Senate-reported version) take aim at the current
division of jurisdiction between the federal district courts and the U.S. Court of
Federal Claims (CFC) — as that division affects property-rights-related suits against
the United States. Consider a landowner facing a federal property-use restriction. He
or she wishes to attack the restriction’s validity and also seek compensation under the
Takings Clause. To pursue both remedies, the owner must now file in two courts: the
district court has jurisdiction over the invalidation claim; the CFC, under the Tucker
Act, must hear the compensation claim. Responding to this jurisdictional split, these
bills give each court some jurisdiction of the kind it now lacks.
Issues raised by these bills include: How serious and frequent is the current
“shuffle” between district court and CFC? Should the CFC be shifted away from its
historical identity as a court that hears chiefly monetary claims against the United
States? May an Article I court such as the CFC invalidate acts of Congress?
H.R. 1534, in both House-passed and Senate-reported versions, focusses
additionally on two threshold issues often used by courts to decline reaching the
merits of the property owner’s constitutional claims. These issues, “abstention” and
“ripeness,” have been developed by federal courts to avoid adjudication of certain
matters deemed not properly before them. However, supporters of these bills point
out that as a result of them, the large majority of landowner-filed constitutional
challenges are dismissed by federal courts. Though the state courts are available to
hear such claims, bill supporters argue that such courts are often pro-regulator, and
in any event, federal courts have a responsibility to adjudicate federal claims.
The response of H.R. 1534 (both versions) is to limit the ability of federal judges
to apply these threshold hurdles, with the result that such judges will have to
adjudicate more constitutional claims on the merits. Issues raised by the bills include:
Is the present system unfair? What are the federalism implications of having more
federal-court decisions on local government decisions as to land use? Will the bills
simply result in federal judges dismissing cases on the merits, rather than for lack of
H.R. 992 and Senate-reported H.R. 1534:
expanding court jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Description of bills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Issues raised by bills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
House-passed H.R. 1534 and Senate-reported H.R. 1534:
lowering abstention and ripeness hurdles . . . . . . . . . . . . . . . . . . . . . . . . .
The existing law of abstention and ripeness . . . . . . . . . . . . . . . . . . . . . . .
Asserted need for bills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Description of bills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Issues raised by the bills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Brief comparison of the two process approaches
in the bills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
"Property Rights" Bills Take a Process
Approach: H.R. 992 and H.R. 1534
A new breed of “property rights” bills has appeared on the congressional
horizon. These bills seek to abbreviate the federal judicial process now used by
property owners to assert claims based on adverse impacts of government actions on
their property. The bills purport to alter only the judicial process, rather than the
standards for judging the claims. In adopting this approach, bill supporters hope to
avoid the controversy generated by the leading property rights bills of recent
Congresses — in particular, by bills affording property owners monetary
compensation on easier-to-meet standards than those of the Fifth Amendment Takings
Property rights bills have been introduced in every Congress since 1990.2
Indeed, the very first generation of such bills took a process approach, seeking to
require federal agencies to do written “takings impact assessments” of their proposed
actions. In the period from 1993 to 1996, however, the emphasis shifted to the
aforementioned compensation approach. During 1995, the House passed a
compensation bill as part of the House Republicans’ Contract with America. In the
Senate, the Republican majority leader and Senate Judiciary Committee chairman
sponsored multifaceted property rights bills, which attracted attention chiefly to their
compensation components. None of these assessment and compensation bills was
During the later part of the 104th Congress, and early in the 105th, the belief
emerged among congressional supporters of property rights legislation that
compensation bills were too much of a lightning rod, and might not be enactable in
the foreseeable future. Thus, eyes turned toward arguably more moderate approaches
whose political prospects might be better. Enter the judicial process bills — H.R. 992
(Lamar Smith), H.R. 1534 (Gallegly), S. 1204 (Coverdell), and S. 1256 (Hatch).
The House passed H.R. 1534 on October 22, 1997, and H.R. 992 on March 12,
1998. In the Senate, the Committee on the Judiciary reported H.R. 1534 on February
26, 1998 with substituted text that combines the approaches of the two House-passed
bills. This report examines — H.R. 992 as passed by the House ("Tucker Act Shuffle
Relief Act"), H.R. 1534 as passed by the House ("Private Property Rights
Implementation Act"), and H.R. 1534 as reported by the Senate Committee on the
U.S. Const. Amend. V: “[N]or shall private property be taken for public use, without just
To be precise, the first property rights “bill” was a floor amendment. 136 Cong. Rec. 10909
(daily ed. July 27, 1990) (floor amendment of Sen. Steve Symms).
Judiciary ("Citizens Access to Justice Act"). The first generation of process bills, of
the assessment genre, is examined in an earlier CRS report.3
Note: At the Senate Committee on the Judiciary markup of H.R.
1534, several Republican members expressed doubts about the
bill, even while voting to send it to the floor. The express
understanding was that changes in the bill would be sought
before it came to the floor. Thus, the Senate-reported version
of H.R. 1534 discussed in this report may not be the vehicle on
which the full Senate acts.
H.R. 992 and Senate-reported H.R. 1534:
expanding court jurisdiction
H.R. 992 and Senate-reported H.R. 1534 take aim at the current division of
jurisdiction between the federal district courts and the U.S. Court of Federal Claims
(CFC) — as that division affects property-rights-related suits against the United
States. This approach first saw the light of day in S. 135 of the 104th Congress (Sen.
Hatch), and was later folded into various Senate “omnibus” property rights bills of the
104th and 105th Congresses.4
Historically, the district courts and the CFC, for the most part, hear different
types of suits against the federal government. The district courts have jurisdiction
over suits seeking to invalidate federal actions, often under the Administrative
Procedure Act (APA). They also hear tort suits against the United States. By
contrast, the CFC, under the Tucker Act,5 hears almost exclusively money claims
against the United States (other than torts and admiralty). This jurisdictional split
often means that the property owner aggrieved by a federal restriction on land use
must, if it wishes to pursue all remedies, file lawsuits in two separate courts. The suit
seeking judicial invalidation of the regulatory act must be filed in the district court,
while the Fifth Amendment “taking” action, asking for monetary compensation, must
be lodged with the CFC.
The reasons for this jurisdictional split go back to the mid-nineteenth century.
Prior to 1855, Congress dealt with requests for private bills by itself investigating the
merits of each claim. In that year, the predecessor of the CFC, the Court of Claims,
was created “primarily to relieve the pressure on Congress caused by the volume of
Robert Meltz, The Property Rights Issue 16-19 (CRS Report No. 95-200 A, 1995).
S. 605 (Sen. Dole) and S. 1954 (Sen. Hatch) of the 104th Congress, and S. 781 (Sen. Hatch)
of the 105th Congress.
Act of March 3, 1877, ch. 359, § 1, 24 Stat. 505 (1887), codified at 28 U.S.C. § 1491.
private bills.”6 Originally, its power extended only to hearing such claims and
preparing bills for submission to Congress. In 1887, however, the enactment of the
Tucker Act greatly expanded the court’s jurisdiction to include virtually all monetary
claims against the United States except those sounding in tort or admiralty. The Act
has changed little in relevant respects to this day.
Among other things, the Tucker Act gave the Court of Claims power over
money claims against the United States “founded ... upon the Constitution.”
Ultimately, almost all takings lawsuits against the Federal Government, being money
claims “founded ... upon” the Fifth Amendment Takings Clause, were seen to belong
exclusively in the CFC.7 A small exception is made by the "little Tucker Act," which
gives district courts jurisdiction concurrent with the CFC over a variety of money
claims, including takings claims, against the United States when the amount in
controversy does not exceed $10,000.8
While concentrating money claims against the United States in the CFC,
however, Congress left other claims against the United States — for injunctive and
declaratory relief -- largely in the domain of the U.S. district courts. Thus was
created a bifurcation of jurisdiction not typically encountered in property rights suits
against local governments, whether brought in state or federal court.
Description of bills
Responding to this split jurisdiction, H.R. 992 and Senate-reported H.R. 1534
give each court some jurisdiction of the type it now lacks — but only for those suits
against the United States that involve property rights. The CFC is given some
jurisdiction to invalidate acts of Congress and agency regulations, and, as to any
action within its jurisdiction, to issue injunctive and declaratory relief. The district
courts, for their part, are given jurisdiction to hear Fifth Amendment compensation
claims based on such acts and regulations, without the current $10,000 cap on such
claims. In effect, two court systems of concurrent jurisdiction are created for
challenges to federal actions adversely affecting property rights.
Other provisions found in both H.R. 992 and Senate-reported H.R. 1534 would:
give the plaintiff sole power to choose between the CFC and district court, direct
appeals from actions under the bill in either court to the U.S. Court of Appeals for the
Federal Circuit, and repeal a current restriction on CFC jurisdiction in 28 U.S.C. §
Provisions in Senate-reported H.R. 1534, but not H.R. 992, include: a 6-year
statute of limitations; a directive that courts award attorneys’ fees and other litigation
costs to prevailing plaintiffs; and a clarification that in CFC proceedings constituting
judicial review of federal agency action, the Administrative Procedure Act applies.
Glidden Co. v. Zdanok, 370 U.S. 530, 552 (1962).
See, among recent cases, Preseault v. ICC, 494 U.S. 1 (1990); Bay View, Inc. v. Ahtna, Inc.,
105 F.3d 1281 (9th Cir. 1997).
28 U.S.C. § 1346(a)(2).
Provisions in H.R. 992, but not Senate-reported H.R. 1534, include: a bar on
involuntary joinder in the CFC (an Article I court) of third parties entitled to an
Article III court; and a disclaimer specifying that the bill's grant of jurisdiction to the
CFC and district courts does not extend to matters over which exclusive jurisdiction
is now vested in a U.S. court of appeals.
Issues raised by bills
Plainly, it is more efficient of both litigant and judicial resources if claims arising
from the same set of facts can be adjudicated in the same court. The particular way
that H.R. 992 and Senate-reported H.R. 1534 seek to achieve this goal, however,
raises various issues that Congress may wish to consider.
1.The “shuffle” between the CFC and district courts: the Tucker Act and 28 U.S.C.
The Tucker Act. The main purpose of H.R. 992 and Senate-reported H.R. 1534
is to consolidate a property owner’s property-rights-related invalidation and
compensation claims in one court. This should first be put into perspective. The
bifurcation of invalidation/takings jurisdiction in the property rights realm is not an
isolated case. There are other situations, not involving takings, where a plaintiff might
have to split causes of action arising from the same fact situation between the CFC
and district courts — e.g., a breach of contract action and an invalidation action
against the United States, or a Contract Disputes Act claim and a tort action. This
fact led one witness at the hearing on H.R. 992 to suggest that if the issue of split
CFC/district court jurisdiction is to be addressed by Congress, it should not be limited
to property-rights-related claims.9
Our research reveals no use of the phrase “Tucker Act shuffle” by a court, but
in the context of property-rights-related claims it appears to refer chiefly to three
scenarios.10 In the first, a federal agency acts to restrict the use of privately owned
land — e.g., through denial of a wetlands permit required for developing the land.
The landowner wants both to have the government restriction overturned (i.e., the
permit granted) or, if the restriction proves to be lawful, to obtain recompense for an
alleged regulatory taking. So the owner files an invalidation action in the district
court, and a Tucker Act monetary compensation action in the CFC.11 At this point,
Prepared statement of Prof. Michael F. Noone, submitted at Hearing on H.R. 992 before the
Subcomm. on Immigration and Claims, House Comm. on the Judiciary, Sept. 10, 1997.
See the House Committee on the Judiciary's report on H.R. 992: H.R. Rep. No. 105-424,
at 5-6 (1997).
The federal permit programs most often drawn into the property rights debate are those
under the Endangered Species Act (ESA) and the Clean Water Act section 404 (wetlands)
program. Takings case law under the ESA is extremely limited, and so does not permit
assessment of how often multiple filings by landowners are occurring. Takings court
decisions under the section 404 program, however, are prodigious. Our survey of the more
recent section 404/takings decisions shows that in the majority, no district-court invalidation
suit is filed. Of course, it is arguable that if landowners are allowed to file invalidation and
the CFC typically will stay the compensation suit until the validity of the government
action is ascertained. This stay is dictated in part by the CFC/Federal Circuit rule that
the United States cannot be held liable for a taking based on unauthorized, ultra vires
government action (if the validity challenge involves such an issue),12 and in part by
the difficulty in assessing the existence or extent of the taking until validity questions
and the government's ultimate decision are resolved. Once the district court
proceedings are complete (unless the government action is found to be unauthorized),
the plaintiff then "shuffles" to the CFC to go forward with the taking action.
In the second scenario, the property owner aggrieved by government action
pursues invalidation in the district court or compensation in the CFC — one or the
other. In defense, the United States may argue, if warranted by the facts of the case,
that the invalidation action is really one for compensation and belongs instead in the
CFC, or that the compensation action is effectively a collateral attack on the
government action and thus should be determined by a district court. If the
government's argument prevails, the action will have to be filed in the other court.
A third scenario arises from the legal blur between which government actions
constitute takings, adjudicated in the CFC, and which constitute merely torts,
adjudicated in the district courts. A typical scenario occurs with the flooding of
private property caused by a government dam. A taking? Or a tort such as trespass
or negligence? H.R. 992 and Senate-reported H.R. 1534 would allow the plaintiff to
remain in the court where the action was originally filed, CFC or district court, if the
court determined that the government action was not as characterized by the plaintiff.
28 U.S.C. § 1500. The “Tucker Act shuffle” is to be distinguished from a
different “shuffle” that has been largely eliminated in the context of simultaneous
invalidation and monetary compensation suits. The latter shuffle used to arise under
an old, Reconstruction Era jurisdictional statute of the CFC, 28 U.S.C. § 1500.
Section 1500, which H.R. 992 and Senate-reported H.R. 1534 would repeal, bars the
CFC from exercising jurisdiction over “any claim for or in respect to which the
plaintiff ... has pending in any other court any suit or process against the United
States.”13 At first blush, then, section 1500 seems to force an election between
compensation suits in the same court, the frequency with which they press both claims might
Del-Rio Drilling Programs, Inc. v. United States, 1998 WL 321272 (Fed. Cir. June 18,
1998); Florida Rock Industries, Inc. v. United States, 791 F.2d 893, 898 (Fed. Cir. 1986),
cert. denied, 479 U.S. 1053 (1987).
According to the Supreme Court:
The lineage of [section 1500] 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 [today’s CFC], 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
challenging the validity of a federal action in district court, or filing a taking claim
based on that action in the CFC — one or the other, but not both. This “either/or”
raised the awkward possibility that the six-year statute of limitations for the filing of
CFC actions would expire before the district court litigation was concluded.
However, in the chief situation addressed by the bills — the plaintiff pursuing
invalidation and monetary remedies — there is no forced election. The reason: a CFC
predecessor court announced in 1956 that the jurisdictional bar of section 1500 does
not apply when the plaintiff asks for different types of remedy in the two courts.14 At
a minimum, this different-remedy exception has been held to mean that when the
district court suit is for invalidation or other equitable relief, the CFC suit — almost
always, for monetary relief -- may proceed.15 Though eliminated by the Federal
Circuit in 1992,16 the different-remedy exception was reinstated by the same court in
1994.17 Thus, a plaintiff today may simultaneously maintain an invalidation action in
the district court and and a compensation action in the CFC.18
In light of the reinstatement of the different-remedy exception, the primary
change made by the bills’ repeal of section 1500, at least in the property rights area,
seems to be the relatively modest one of increasing the permanence of the exception
by embodying it in a statutory prescription rather than a court-created one. Situations
relevant to the bills’ property rights focus do arise occasionally, however, where the
different-remedy exception (or other section 1500 exceptions) does not apply to lift
the bar on CFC jurisdiction. In such situations, the repeal of section 1500 still would
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 duplicate lawsuits that induced Congress to [enact section 1500].
Keene Corp. v. United States, 508 U.S. 200, 206 (1993).
Casman v. United States, 135 Ct. Cl. 647 (1956).
See, e.g., Marks v. United States, 34 Fed. Cl. 387 (1995), affirmed without published
opinion, 116 F.3d 1496 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 852 (1998).
UNR Industries, Inc. v. United States, 962 F.2d 1013 (Fed. Cir. 1992) (en banc), affirmed
sub nom. Keene Corp. v. United States, 508 U.S. 200 (1993).
Loveladies Harbor, Inc. v. United States, 27 F.3d 1545 (Fed. Cir. 1994) (en banc).
Senate-reported H.R. 1534 appears to be unaware of this fact. Section 2(3)(C) of the bill
contains a finding seemingly based on a belief that under current law a plaintiff may not
simultaneously maintain an equitable action in the district court and a compensation action
in the CFC, based on the same operative facts.
Possibly, section 2(3)(C) reflects a reading of Loveladies Harbor as confined to its
facts. Case law subsequent to Loveladies Harbor, however, discloses no such narrow
interpretation. See, e.g., Creppel v. United States, 41 F.3d 627, 633 (Fed. Cir. 1994).
See, e.g., Dico, Inc. v. United States, 48 F.3d 1199 (Fed. Cir. 1995). Under section 1500,
said Dico, the CFC lacked jurisdiction over a manufacturer’s taking claim for Superfund Act
response costs it incurred cleaning up groundwater under federal order. The manufacturer had
earlier filed a Superfund Act section 106(b) claim in district court against EPA for
2. The shift away from the CFC’s historical jurisdiction, which has been limited
almost exclusively to money claims.
The CFC has limited jurisdiction to grant equitable and other non-monetary relief
— always in statutorily specified situations, and often when such relief is appropriate
as an adjunct to securing monetary relief. In the large majority of its cases, however,
CFC plaintiffs seek money as the primary remedy. Indeed, the resolution of monetary
claims against the United States has been the prime thrust of the court ever since its
creation in 1855.
Under H.R. 992 and Senate-reported H.R. 1534, the number of cases where
non-monetary relief is sought from the CFC would be likely to increase substantially
over current levels, owing to the general perception that the CFC is a plaintiff-friendly
court. To be sure, H.R. 992 premises CFC jurisdiction over the non-taking claim on
plaintiff’s alleging a taking, and the Senate bill demands that the federal action be one
“affecting” plaintiff’s property. Both standards, however, are broad and easily met.
The H.R. 992 precondition of a taking claim may only require plaintiff to meet “Rule
11,” a rule of the CFC (and district courts) under which plaintiff’s attorneys avoid
sanctions for frivolous claims by showing that the claim was justified under existing
law or reasonable extension of existing law. Given the vagueness and fluidity of
takings law, this will arguably prove readily satisfied.
3. Consequences of having district courts, in addition to the CFC, rule on claims of
Under H.R. 992 and Senate-reported H.R. 1534, the law of federal takings
would develop in district courts in addition to the CFC, not (as now) almost
exclusively in the CFC.20 The prospect that such multiple forums would yield
inconsistent rulings is reduced in both bills by provisions that channel appeals from
district court decisions under the bills to one appellate court: the U.S. Court of
Appeals for the Federal Circuit. This is no different than under current law — right
now, the Federal Circuit hears appeals from the CFC and from the district courts
(takings claims seeking up to $10,000).21 Almost certainly, however, the number of
cases arriving at the Federal Circuit from the district courts will be much greater if the
bills are enacted, swelling the workload of that court. In part, such a result might be
caused by the reputation of the Federal Circuit as a plaintiff-friendly court.
Another issue raised by allowing the same claim to be pursued in more than one
court, as the bills do, is that of “forum shopping” — a practice decried by some but
reimbursement of the same costs. Although the legal theories in the two actions were
different, observed the court, the factual allegations and claims for monetary and injunctive
relief were essentially the same. Thus, the different-remedies exception to the section 1500
jurisdictional bar was inapplicable.
Because of the $10,000 jurisdictional limit in the little Tucker Act and the restriction of
takings actions to compensation remedies, few district courts today render takings decisions.
See supra text accompanying note 8.
28 U.S.C. §§ 1295(a)(2), (a)(3), respectively.
seen as relatively harmless by others. Note in this regard that the bills give the
plaintiff the choice of both trial court and appellate court. The choice of trial court
is explicit in the bills.22 The choice of appellate court is made by plaintiff’s decision
whether to attach the requisite property rights allegations to the invalidation claim —
property rights allegations attached, the appeal goes to the Federal Circuit; no such
allegations, appeal goes to the circuit in which the district court is located.
The concurrent CFC-district court jurisdiction contemplated by the bills is
nothing new. Congress has established duplicative jurisdiction between the CFC and
other courts in a number of settings, so arguably it has a certain tolerance for forum
4. Constitutionality of CFC, as an Article I court, invalidating acts of Congress.
Generally, the judicial power of the United States is exercised by lower courts
created by Congress under the judicial article (Article III) of the Constitution. These
include the federal district courts and the U.S. Court of Appeals. From time to time,
however, Congress has created courts under the legislative article (Article I) of the
Constitution. These include the territorial courts, District of Columbia courts,
bankruptcy courts, federal magistrate judges, military courts, and, of interest here, the
An old and still unresolved debate exists as to whether Article I forums, like the
CFC, may be vested with jurisdiction to do many or all of the things that Article III
H.R. 992 § 2(a)(2); Senate-reported H.R. 1534 § 5(c).
We noted earlier the overlap between CFC and district court jurisdiction as to money claims
against the United States for $10,000 or less, under the Tucker Act and little Tucker Act. In
addition, there is concurrent jurisdiction between the CFC and district courts under 28 U.S.C.
§§ 1491(a) and 1346(a)(1) (tax refund cases), 5 U.S.C. § 8715 (life insurance claims by
government employees and others), 5 U.S.C. § 8912 (health insurance claims by government
employees and others), 22 U.S.C. § 2356 (certain patent claims), 26 U.S.C. § 6226(e)
(petition for readjustment of partnership items), and 28 U.S.C. § 1479 (excessive injury from
U.S. action to prevent coastline damage from offshore pollution).
Yet another instance may be temporary. Until recently, the CFC had jurisdiction over
challenges to federal contract bid procedures only until the contract was awarded. Once
awarded, jurisdiction shifted to the district courts to hear APA challenges to the award’s
validity. In 1996, Congress gave each court the jurisdiction it lacked — the CFC, over postaward challenges; the district courts, over pre-award challenges. Pub. Law No. 104-320 §
12; 28 U.S.C. § 1491(b)(1). The effect was to create a system of two courts with identical
jurisdiction over a category of lawsuits, just as H.R. 992 and Senate-reported H.R. 1534
propose for property-rights-related litigation. However, Congress also decided to sunset the
district-court’s entire authority over bid protest actions as of January 1, 2001, while requiring
the General Accounting Office to do a study on whether concurrent CFC/district court
jurisdiction in this area was “necessary.” Pub. Law No. 104-320 § 12(c)-(d). Legislative
history shows that Senator Cohen, the chief proponent of the jurisdictional change, was
concerned about the possibility that dual jurisdiction would invite forum shopping and might
produce “disparate bodies of law.” 142 Cong. Rec. S11848 (daily ed. Sept. 30, 1996)
(remarks of Senator Cohen).
28 U.S.C. § 171(a).
forums can.25 Today it is clear that there is considerable overlap, the Supreme
Court’s criteria for the outer bounds of Article I judicial functioning being quite
broad. Nonetheless, observers have raised the issue whether an Article I forum may
be empowered to invalidate acts of Congress, which H.R. 992 and Senate-reported
H.R. 1534 would empower the CFC to do. The argument against such power
invokes separation of powers concerns and the theoretically greater independence of
Article III judges.26
A full development of the arguments as to whether the CFC, as an Article I
court, can be constitutionally empowered to invalidate congressional enactments is
beyond the scope of this report. Sharply opposing views have been articulated
recently by the U.S. Department of Justice (unconstitutional) and by Republican
members of the House Committee on the Judiciary (constitutional).27 Here, we merely
note that the Supreme Court has never directly addressed the question.
Should Congress determine that the above constitutionality concern argues
against granting invalidation authority to the CFC, it may be noted that the bills’
claims-consolidation purpose can be achieved solely by the jurisdictional expansion
effected by the bill in the district courts. Such a district-court-only approach was
espoused by an amendment offered by Representative Melvin Watt during fullcommittee markup and floor consideration of H.R. 992, but rejected.28
5. Effect on “preclusive review” provisions in existing regulatory statutes.
Congress may wish to clarify the extent to which the bills, particularly Senatereported H.R. 1534, override the “preclusive review” provisions contained in many
federal regulatory statutes. These provisions were designed to, among other things,
put an early end to legal disputes over new agency rulemakings, allowing both agency
and regulated community to commit the necessary resources with confidence that the
rule has some permanence. An example of a preclusive review provision is found in
See generally RICHARD H. FALLON, DANIEL J. MELTZER, AND DAVID L. SHAPIRO, HART
AND WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 387-444 (4th ed. 1996)
(hereinafter FEDERAL COURTS).
Such greater independence is thought to result from the fact that Article III judges have, by
the terms of that article, lifetime tenure (save for impeachment) and security against
reductions in pay. Article I judges have neither. For example, the judges of the CFC are
appointed for fifteen-year terms, not for life. 28 U.S.C. § 172(a).
An interesting counter-argument to the theoretically lesser independence of the article
I judges on the CFC has been made by the chief judge of that court, in testimony on H.R. 992.
He asserted that since each CFC active-status judge has the option of taking lifetime senior
status at the end of his or her fifteen-year term (if not reappointed), CFC judges are likely to
have the same independence of judgment as Article III judges. Oral testimony of Loren Smith,
Chief Judge of the CFC, at Hearing on H.R. 992 before the Subcomm. on Immigration and
Claims, House Comm. on the Judiciary, Sept. 10, 1997.
Letter from Andrew Fois, Ass't Att'y General, U.S. Dep't of Justice, to Rep. Lamar Smith
(Sept. 8, 1997); majority views in H.R. Rep. No. 105-424, at 7-11 (1997).
Rejection of the Watt amendment on the House floor was on a tie vote of 206-206. 144
Cong. Rec. H1138 (daily ed. March 12, 1998).
the Clean Air Act, which limits judicial review of nationally applicable regulations
under the act to the U.S. Court of Appeals for the District of Columbia, requires that
petitions for judicial review be filed within 60 days of Federal Register notice, and
provides that after such 60 days a regulation may not be challenged in an enforcement
The issue whether preclusive review provisions are overridden arises more
clearly under Senate-reported H.R. 1534, since that bill's provisions apply
“[n]otwithstanding any other provision of law.”30 Such override, if found, would
make several changes. Where a preclusive review provision would have channelled
all petitions for review to a single court (example above), the bill increases the chance
of multiple, inconsistent rulings from the district courts as to an agency action. Also,
agency actions for which original review jurisdiction now lies in the circuit courts
would be heard initially by district courts, enhancing the likelihood that more time will
be used in appeals. Finally, the six-year limitations period in Senate-reported H.R.
1534 arguably allows challenges to be filed long after the deadlines in existing
preclusive review provisions, which range between 45 and 120 days after the agency
By contrast, H.R. 992 lacks the "[n]otwithstanding any other provision of law"
phrase. Moreover, it stipulates that its grant of jurisdiction to the CFC and district
courts "does not extend to matters over which other Federal law has granted
exclusive jurisdiction to one or more United States courts of appeals."31 This
provision shrinks the issue of a possible override to those preclusive review provisions
conferring jurisdiction on federal district courts.32
Note that invalidation challenges under the bills could take the form of either
petitions for review of agency rulemaking, or counterclaims in a federal enforcement
6. Other issues.
Effect of court’s finding no taking. H.R. 992 conditions the expansion of CFC
and district court jurisdiction on plaintiff’s allegation that the agency action at issue
is a taking. (The district courts have jurisdiction over such claims independent of
Clean Air Act § 307(b); 42 U.S.C. § 7607(b). Other preclusive review provisions in
environmental statutes are: Clean Water Act, 33 U.S.C. § 1369(b); Safe Drinking Water Act,
42 U.S.C. § 300j-7; Resource Conservation and Recovery Act, 42 U.S.C. § 6976; Superfund
Act, 42 U.S.C. § 9613(a); Toxic Substances Control Act (TSCA), 15 U.S.C. § 2618; Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136n, and Surface Mining Control and
Reclamation Act, 30 U.S.C. § 1276. Non-environmental examples include the Occupational
Safety and Health Act, 29 U.S.C. § 660, and Consumer Product Safety Act, 15 U.S.C. §
See, e.g., Safe Drinking Water Act § 300j-7(b); Surface Mining Control and Reclamation
Act, 30 U.S.C. § 1276.
H.R. 992.) In the large majority of cases, it is likely that the taking claim will be
rejected by the CFC — this is the historical pattern in takings cases, one which H.R.
992 is likely to heighten by encouraging the filing of marginal takings claims to
establish the expanded jurisdiction over the non-taking claim. If the taking claim is
rebuffed, does the court retain jurisdiction over the non-taking claim? It would seem
likely, though Congress may wish to clarify the matter.
Scope of CFC’s new equitable powers. H.R. 992 grants the CFC power to grant
equitable and declaratory relief only in connection with actions brought under H.R.
992. In contrast, Senate-reported H.R. 1534 grants the CFC such powers "in any
case within its jurisdiction." Both bills would allow invocation of equitable powers
on a “when appropriate” standard, a phrase one assumes refers to traditional
principles of equity and does not allow the court to invalidate federal action solely
because it is adjudged a taking.33 Also raising this issue is a provision in Senatereported H.R. 1534 declaring that "[a]n owner may file a civil action under this
section to challenge the validity of any Federal agency action as a violation of the fifth
House-passed H.R. 1534 and Senate-reported H.R. 1534:
lowering abstention and ripeness hurdles
A "process" approach quite different from the Tucker Act-related provisions
above is taken by the House-passed version of H.R. 1534 and almost identical
provisions in the Senate-reported version of H.R. 1534. These bills would lower
certain threshold barriers to assertion of federal takings claims in federal courts, so
that more such cases are resolved on the merits, rather than dismissed on preliminary
grounds. This threshold-lowering approach is entirely independent of the earlierdiscussed jurisdictional approach. Indeed, the two approaches largely affect different
entities: the Tucker Act shuffle approach aims exclusively at suits against the federal
government; the threshold-lowering approach, mostly suits against local government.
The two threshold barriers targetted by the bills are “abstention” and “ripeness,”
concepts that have been developed by federal judges to avoid adjudication of certain
matters deemed not properly before federal courts. A basic understanding of these
sentries at the courthouse door is required at the outset.
Under well-settled law, invalidation is not available as a remedy for a Fifth Amendment
taking in the usual case; “just compensation” is deemed sufficient. See, e.g., Ruckelshaus v.
Monsanto Co., 467 U.S. 986, 1016 (1984). See also First English Evangelical Lutheran
Church v. County of Los Angeles, 482 U.S. 304, 314 (1987) (Takings Clause “does not
prohibit the taking of private property, but instead places a [compensation] condition on the
exercise of that power”).
The existing law of abstention and ripeness
Abstention is a discretionary doctrine under which federal judges may decline to
decide cases that are otherwise properly before the federal courts. Grounded in
principles of comity and cooperative federalism, abstention is based on the notion that
federal courts should not intrude on sensitive state political and judicial controversies
unless necessary. Rather, say proponents of abstention, those controversies should
be settled in the state courts. Thus, abstention is an exception to the otherwise
“virtually unflagging obligation of the federal courts to exercise the jurisdiction given
Several varieties of abstention exist, named after the Supreme Court decisions
in which they were announced. The two varieties most relevant to H.R. 1534 are
Pullman abstention and Burford abstention.37 Pullman abstention,38 in its classic use,
arises in federal-court challenges to state action in which resolution of an unsettled
state law issue could eliminate the need to decide, or could narrow, a difficult federal
question.39 It has been held applicable to section 1983 actions,40 a frequently used
basis for challenging local action in federal court.41 Typically, the federal court sends
the litigants to state court for a determination of the state law question, or, in the
speedier, more modern approach, simply "certifies" the state-law question to the high
Portions of the abstention discussion here are adapted from a draft of a forthcoming book
on the takings issue. The relevant portion of the book was written by Richard M. Frank, a
Senior Assistant Attorney General with the State of California.
Colorado River Water Conservation District v. United States, 424 U.S. 800, 817 (1970).
See generally Julie A. Davies, Pullman and Burford Abstention: Clarifying the Roles of
State and Federal Courts in Constitutional Cases, 20 U.C. Davis L. Rev. 1 (1986).
Announced in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941).
A leading treatise asserts that the Supreme Court’s enthusiasm for Pullman abstention
appeared to wane during the 1960s, the Court pointing to the delays that often result from
remitting plaintiff to a different court. More recently, however, the Burger Court resuscitated
the doctrine to some degree, and despite the small number of recent supportive cases in the
Supreme Court, the doctrine continues to be invoked in the lower federal courts. FEDERAL
COURTS, supra note 25, at 1237.
Harrison v. NAACP, 360 U.S. 167 (1959).
Section 1983, 42 U.S.C. § 1983, is the most often used provision of the Civil Rights Right
Act of 1871. It creates a federal cause of action on behalf of any person deprived of federal
rights “under color of” state law. Though the original motivation for section 1983 was to
ensure that the freedoms granted to southern blacks after the Civil War would not be at the
mercy of unfriendly state courts, the language of the provision admits of far broader usage.
Today, section 1983 remains a popular basis for assertion of federal rights in federal (and
state) court, in part because of a companion provision, 42 U.S.C. § 1988, allowing for the
award of attorneys fees to prevailing parties.
court of the state for its views on the matter.42 Meanwhile, the federal court retains
jurisdiction over the case, to resolve the federal question if a decision ultimately
Burford abstention43 counsels against federal adjudication in cases touching on
a complex state regulatory scheme concerning important matters of state policy more
properly addressed by state courts.44 By contrast with Pullman abstention, the typical
remedy is to dismiss the action. Recently, however, the Supreme Court held in
Quackenbush v. Allstate Ins. Co. that abstention does not support outright dismissal
or remand in actions seeking monetary damages, as opposed to equitable or other
discretionary relief.45 Owing to the more common use of dismissal in Burford
abstention, Quackenbush would seem to affect chiefly those cases. Important here,
its holding seems to limit the federal court addressing a takings-based section 1983
action to staying, rather than dismissing, the claim. This raises the question whether
Quackenbush will cause federal judges to lose interest in the use of abstention in
At least until Quackenbush, federal courts had been abstaining in regulatory
takings cases with greater frequency than a decade ago — the apparent result of two
Supreme Court developments. The first is the Court’s 1987 ruling that when a
regulatory taking is found, the Fifth Amendment requires a remedy of monetary
compensation, not merely invalidation of the land use restriction.46 Formerly, some
state courts had permitted only invalidation. Thus, the ruling deprived property
owners of the argument that the remedies available in state court were inferior to
those in federal court. Second, in 1985 the Supreme Court announced two stringent
ripeness rules for Fifth Amendment “takings” claims advanced in federal court —
discussed immediately below. These rules have further encouraged increasingly
overburdened federal judges to apply abstention principles to deflect many takings
cases (involving state and local agency defendants) to the state courts.
Abstention is only relevant where a federal court has before it a suit challenging
state or local action. If the venue is a state court, or the defendant is the United
States, abstention doctrine has no application.
There appears to be broad consensus that certification allows resolution of state law
questions more expeditiously than by the traditional method of requiring a party to file a
declaratory judgment action in the state trial court and possibly have to appeal up to the state
high court. See generally CHARLES A WRIGHT, LAW OF FEDERAL COURTS 334-335 (5th ed.
Announced in Burford v. Sun Oil Co., 319 U.S. 315 (1943).
The key follow-up case to Burford is Alabama Public Service Comm’n v. Southern Ry., 341
U.S. 341 (1951), holding that “[a]s adequate state court review of an administrative order
based upon predominantly local factors is available to appellee, intervention of a federal court
is not necessary for the protection of federal rights.” While the Supreme Court has not
invoked Burford abstention since this decision, its recent references to the case suggest its
517 U.S. 706 (1996).
First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987).
Ripeness is another threshold hurdle in litigation. If a claim is not ripe, the court
lacks subject matter jurisdiction and may not decide the merits of the case. Ripeness
seeks to ensure that issues adjudicated by courts are “mature” — i.e., that
developments in the plaintiff’s dispute with the defendant have reached a sufficient
level of definition and finality that judicial intervention is appropriate. In the federal
courts, the doctrine is rooted in both constitutional text (the Article III requirement
that federal courts adjudicate only “cases” and “controversies”) and the judiciary’s
inherent discretion, absent statutory proscription, to implement certain "prudential"
concerns as to the proper use of judicial resources.47
The Supreme Court has been at pains to spell out what general ripeness
principles require in the specialized context of Fifth Amendment takings actions.48
Indeed, beginning with Agins v. City of Tiburon49 in 1980, the Court’s effort to define
what constitutes a ripe taking claim became a key theme of its takings decisions. Two
decisions dominate the field: Williamson County Regional Planning Comm’n v.
Hamilton Bank (1985)50 and MacDonald, Sommer & Frates v. Yolo County (1986).51
The takings-ripeness precepts set out in these opinions reflect not only the broad
judicial desire that only mature issues (particularly when they are constitutional) be
adjudicated. More specifically, they are seen by the Court to emanate directly from
the Fifth Amendment Takings Clause. (Notwithstanding their Takings Clause roots,
some of these precepts also have been applied by certain courts to the substantive due
process and equal protection claims commonly made in local land-use litigation.52)
Suitum v. Tahoe Regional Planning Agency, 117 S. Ct. 1659, 1665 n.7 (1997), quoting
Reno v. Catholic Social Services, Inc., 509 U.S. 43, 57 n.18 (1993).
For a general treatment of takings ripeness doctrine in the federal courts, see DANIEL R.
MANDELKER, JULES B. GERARD, AND THOMAS E. SULLIVAN, FEDERAL LAND USE LAW §
447 U.S. 255 (1980). Some argue that the era of takings-ripeness concern in the land use
area actually began two years earlier, in Penn Central Transportation Co. v. New York City,
438 U.S. 104 (1978). That decision raised several ripeness-like concerns, though it did not
mention ripeness by name.
473 U.S. 172 (1985).
477 U.S. 340 (1986).
See, e.g., Del Monte Dunes v. City of Monterey, 920 F.2d 1496, 1507 (9th Cir. 1990).
Later cases suggest that courts are most likely to impose takings-ripeness in nontaking claims
when the arguments underlying the taking and nontaking claims are similar. Thus far, it
appears that principally finality ripeness, and only rarely compensation ripeness, has been
applied to substantive due process and equal protection challenges to local land use controls.
See Note, The Applicability of Compensation to Substantive Due Process Claims, 100 Yale
L. J. 2667 (1991).
The first ripeness element that a taking plaintiff must satisfy is “finality
ripeness."53 Finality ripeness insists that before the court can reach the taking claim,
the property-regulating government body must have arrived at a “final, definitive
position” as to the type and degree of development allowed on the property.54 The
Court's reasoning is straightforward: the factors that the Court has articulated for
determining whether a government restriction constitutes a taking — in particular, the
economic impact of the government action and the degree of interference with the
owner's investment-backed expectations — require courts to know with some
exactness what uses can still be made of a property.
To be ripe, it is generally held that local regulators must be given an opportunity
to review at least one “meaningful” development proposal.55 Submission of
“exceedingly grandiose development plans” (see below) is deemed not meaningful,
and will likely lead to the need for additional, scaled-down or reconfigured proposals
to establish ripeness. The meaningful application requirement also requires that the
landowner thoroughly pursue its application for approval of its development proposal,
and not “abandon it at an early stage.”56
Herein lies a major element of the developers’ complaint. The judicial need for
a clear delineation of what is still allowed on a tract, embodied in the “final, definitive
position” requirement, may create significant burdens for the landowner/developer.
Local land use agencies often do not issue declarations as to the maximum degree of
development they will allow on a tract. The usual pattern is that they simply approve
or disapprove specific development proposals put before them by the
landowner/developer. This thumbs-up or thumbs-down mode of responding means
that to satisfy the Supreme Court’s demand for a final, definitive position as to
allowed development, the landowner, following denial of its initial proposal, may
have to reapply with modified or scaled-down versions. As the Supreme Court put it:
The finality ripeness prerequisite applies only to as-applied takings claims — the large
majority of takings suits. It does not apply to the far less frequent instance of facial takings
challenges. See Suitum v. Tahoe Regional Planning Agency, 117 S. Ct. 1659, 1666 n.10
(1997). In addition, finality ripeness is per se satisfied in takings claims based on physical
invasions of property, rather than restriction of use. "A physical taking ... is by definition a
final decision ...." Sinaloa Lake Owners Ass'n v. City of Simi Valley, 882 F.2d 1398, 1402
(9th Cir. 1989), cert. denied, 494 U.S. 1016 (1990).
Williamson County, at 191. Or as the Court put it in MacDonald, at 348: “a final and
authoritative determination of the type and intensity of development legally permitted.”
In MacDonald, the Supreme Court appeared to endorse a state-court requirement that a
“meaningful” application is a ripeness prerequisite. 477 U.S. at 353 n.8. Lower courts have
turned the implied endorsement into an established pillar of takings finality ripeness. See, e.g.,
Southern Pacific Transp. Co. v. City of Los Angeles, 922 F.2d 498, 503 (9th Cir. 1990), cert.
denied, 502 U.S. 943 (1992). In the alternative phrase, there must be at least one
“reasonable” application. Id.
Southern Pacific, 922 F.2d at 503.
“rejection of exceedingly grandiose development plans does not logically imply that
less ambitious plans will receive similarly unfavorable reviews.”57
But how many reapplications will be necessary before a "final, definitive
position" can be judicially discerned? If a 200-unit subdivision is rejected, then a
150-unit version, then 100 units — will that be enough? Unsurprisingly, the courts
have declined to state an absolute-number maximum, raising concerns among
developers that the expensive process of preparing reapplications may be prolonged
by local government without fear of creating a ripe claim. Court decisions do indeed
reveal that on occasion a large number of reapplications is required, and seemingly not
in good faith.58 Importantly, though, our research reveals no evidence of a judicial
tendency to deny takings ripeness after such multiple reapplications.59
As part of securing a final, definitive position from the local agency, the
landowner also must exhaust any avenues for a variance, waiver, or other exemption
from the land use restriction at issue, and may be required to seek rezoning.
The second takings-ripeness element is “state compensation ripeness.”60 State
compensation ripeness demands that filers of federal-court takings actions against
state and local regulators first seek compensation from appropriate state forums, if
that remedy is available and “adequate.” This requirement is seen to stem from
Takings Clause text. The Clause, says the Supreme Court, bars not the taking of
property, but rather the uncompensated taking of property. It follows, the Court
says, that there is no violation of the Takings Clause, hence no basis for federal
jurisdiction, until a local regulation takes property and the property owner has been
Issues raised in federal court in connection with the state-compensation
requirement often revolve around whether the state’s compensation remedy is
available and “adequate.” For example, federal courts split over whether, to declare
the federal action unripe, state courts must have affirmatively declared the availability
of a compensation remedy, or whether it is enough that such availability be unclear.
Another recurring issue has been whether, having pursued his or her compensation
MacDonald, at 353 n.9. The “reapplication requirement” in the law of finality ripeness is
generally drawn from this decision.
See, e.g., Del Monte Dunes, 920 F.2d 1496 (four reapplications for progressively smaller
residential developments denied, despite prior signals from city they would be received
favorably); Schulz v. Milne, 849 F. Supp. 708 (N.D. Cal. 1994), aff'd in part, reversed in
part on other grounds, 98 F.3d 1346 (9th Cir. 1996) (remodeling permit granted after thirteen
reapplications "in compliance with all applicable zoning laws" denied).
In Del Monte Dunes, for example, the court found that "[r]equiring appellants to persist with
this protracted application process to meet the final decision requirement would implicate ...
concerns about disjointed, repetitive, and unfair procedures ...." Accordingly, it found the
taking claim ripe. 920 F.2d at 1506.
Compensation ripeness clearly applies to as-applied takings claims. Courts have split,
however, on whether it applies to the rarer, facial type of taking claim.
Williamson County, at 194-195.
remedy in the state courts, the landowner is barred by res judicata or collateral
estoppel from litigating the federal taking claim in federal district court62. While
some federal cases suggest that Williamson County may almost always result in
preclusion of federal claims,63 other courts have said or suggested that if plaintiff
"reserves" his or her federal claim in state court, the claim is preserved for later
litigation in the federal court.64
Both prongs of the takings-ripeness doctrine must be met for a claim to be ripe.
As to either prong, however, the landowner has a “futility exemption.” The
exemption stipulates that a taking case is ripe despite the owner’s failure to satisfy the
above prerequisites if pursuing them would, under the circumstances, be futile.65
A decision by the Supreme Court in December, 1997, has ignited a vigorous
debate over the continued vitality of the Williamson County ripeness prongs. In City
of Chicago v. International College of Surgeons,66 the Court addressed a suit alleging
state and federal law claims (including Fifth Amending taking) based on the city's
denial of a demolition permit for historic properties owned by the plaintiff. The suit
had been filed in state court, but was removed to federal court at the request of the
city defendant. The Court held that the federal court could exercise supplemental
jurisdiction over the state law claims, even though they called for deferential on-therecord review of state agency findings. This expansive view of federal court
jurisdiction in a challenge to local land use control has led some to see City of
Chicago as undermining Williamson County and highlighting the need for enactment
of H.R. 1534. Others, however, point out that the decision makes no mention of
ripeness doctrine, and that the Supreme Court reaffirmed Williamson County only last
year in its unanimous Suitum decision.67
Asserted need for bills
Supporters of H.R. 1534 outside Congress (principally the National Association
of Home Builders) assert that the need for the bill flows from the confluence of two
The judicially created doctrines of res judicata and collateral estoppel are said to promote
judicial efficiency by preventing multiple lawsuits over the same matter, and to enable parties
to rely on the finality of adjudications.
See, e.g., Wilkinson v. Pitkin County, 1998 WL 216085, *7n.4 (10th Cir. May 4, 1998);
Dodd v. Hood River County, 59 F.3d 852 (9th Cir. 1995) (res judicata bars federal court
adjudication of categorical taking claim), 136 F.3d 1219 (9th Cir. 1998) (collateral estoppel
bars federal court adjudication of same claim).
Fields v. Sarasota Manatee Airport Auth., 953 F.2d 1299, 1306 (11th Cir. 1992); Industrial
Park Corp. v. Town of Front Royal, 135 F.3d 275, 283 (4th Cir. 1998).
See, e.g., MacDonald, 477 U.S. at 350 n.7 (“property owner is of course not required to
resort to ... unfair procedures ....”); id. at 359 (White, J., dissenting) (takings ripeness does
not require landowner to take “patently fruitless measures”).
118 S. Ct. 523 (1997).
See, e.g., Letter from Andrew Fois, Ass't Att'y General, U.S. Dep't of Justice, to Hon.
Patrick J. Leahy (Feb. 25, 1998).
factors. The first is the perceived pro-land-use-regulator leaning of some state courts,
and the belief of the bill’s supporters that paricularly in those states, the landowner
should have the option of having its federal claims heard in federal court. The second
factor is the high barriers erected by the Supreme Court to reaching takings and
substantive due process claims on the merits — barriers that, in the view of bill
supporters, have been too vigorously implemented by the lower courts. Of these
hurdles, the most important are the ripeness prerequisites to adjudication of the taking
claim (in federal and state courts) and the abstention doctrine (in federal courts only).
The combined effect of these judicial leanings and threshold barriers, say bill
supporters, is that neither federal nor state forum may allow for a full and fair
adjudication of the landowner’s constitutional claims. In some state courts, there is
a pro-regulator mindset (assertedly) and the finality ripeness hurdle. In the federal
courts, the landowner/developer encounters finality and compensation ripeness,
abstention, and an institutional resistance to becoming involved in local affairs. (And,
if the landowner heeds the compensation requirement by litigating in state court first,
it is likely to find itself locked out of federal court by doctrines of res judicata and
collateral estoppel.) 68
A comprehensive study of the seriousness of these claimed obstacles confronting
the land developer is well beyond the scope of this report. However, a few
observations can be made. As to the asserted unreasonableness of takings ripeness
barriers, one can at least note that some law review articles are in agreement. These
articles generally fault the lower courts for their assertedly misguided implementation
of the Supreme Court’s criteria, more than the criteria themselves.69
The charge that federal courts decline to reach the merits in most takings-based
section 1983 claims is empirically supported. One article surveyed federal-court
takings cases from 1983 to 1988 and found that 94% (34 out of 36) of “ripeness
decisions concerning land use” found lack of ripeness.70 A survey of a similar
universe of cases from 1990 to 1997, done by counsel for the National Association
of Home Builders, found that 81% (25 out of 31) of district court cases and 55% (15
See , e.g., Gideon Kanner, Federal Reserve: Landowners are Proceeding to Congress to
Get Their Cases Heard, S.F. Daily J. at 4 (March 11, 1998).
Brian W. Blaesser, Closing the Federal Courthouse Door to Property Owners: The
Ripeness and Abstention Doctrine in Section 1983 Land Use Cases, 2 Hofstra Prop. L. J.
73 (1988); Timothy v. Kassouni, The Ripeness Doctrine and the Judicial Relegation of
Constitutionally Protected Property Rights, 29 Cal. W. L. Rev. 1 (1992); Gregory
Overstreet, The Ripeness Doctrine of the Takings Clause: A Survey of Decisions Showing
Just How Far Federal Courts Will Go to Avoid Adjudicating Land Use Cases, 10 J. Land
Use & Envtl. L. 91 (1994); Gregory Overstreet, Update on the Continuing and Dramatic
Effect of the Ripeness Doctrine on Federal Land Use Litigation (Part II), 20 Zoning and
Planning Law Report 25 (April, 1997).
Brian W. Blaesser, Closing the Federal Courthouse Door to Property Owners: The
Ripeness and Abstention Doctrine in Section 1983 Land Use Cases, 2 Hofstra Prop. L. J.
73, 91 (1988). The study does not include land-use takings cases against the federal
government, where ripeness is much less frequently an obstacle to the plaintiff.
out of 27) of appellate decisions held the takings claims unripe.71 Opponents of H.R.
1534 argue that given the expressed preference of federal courts for having local landuse cases adjudicated in the state courts, and the assertedly stubborn refusal of some
takings plaintiffs to take the Williamson County requirements seriously, these high
percentages are quite understandable. Moreover, other law review articles find the
lower courts’ application of the High Court’s doctrine to be reasonable, and to
perform an essential gatekeeping function in the management of the federal docket.72
As to the perceived regulator-friendly tilt of some state courts, suffice it to make
two points. First, one person’s “anti-developer bias” may be another’s enlightened
attitude toward the harmful consequences of unrestricted growth. To be sure,
however, a leading treatise does support the existence of a wide spectrum of statecourt leanings in landowner-regulator disputes.73 Second, looking at how section
1983 claims generally are treated, the studies contradict.74 One commentator reasons
that federal judges would be expected to decide section 1983 suits more fairly than
their state counterparts.75 An empirical study, however, concludes that section 1983
suits are treated no differently in state courts than in federal ones.76
Turning from the H.R. 1534 provisions directed at local governments to those
aimed at the United States, the need for lowering takings-ripeness hurdles appears less
compelling. Neither state-compensation ripeness nor abstention are applicable to the
federal defendant. And finality ripeness (at least those aspects of it addressed by H.R.
1534) has not been a major obstacle in takings claims against the United States.77
Memorandum to House Judiciary Committee, Subcomm. on Courts and Intellectual
Property, from Linowes and Blocher L.L.P. (Sept. 22, 1997).
Michael Whitman, The Ripeness Doctrine in the Land-Use Context: The Municipality’s
Ally and the Landowner’s Nemesis, 29 Urban Lawyer 13 (1997); R. Jeffrey Lyman, Finality
Ripeness in Federal Land Use Cases from Hamilton Bank to Lucas, 9 J. Land Use & Envtl.
L. 101 (1994).
This treatise asserts that 13 states have heavily dominated the zoning case law. The “prozoning states,” as it calls them, are California, New Jersey, Massachusetts, Maryland.
“Erratic states” are Michigan, Ohio, Florida, New York, and Pennsylvania. “Good gray
middle” states are Connecticut and Texas. “Strongly developer-minded states” are Illinois and
Rhode Island. NORMAN WILLIAMS, JR., AMERICAN LAND PLANNING LAW ch. 6 (1988 rev.).
Longtime students of judicial federalism issues will recognize this as but one more
manifestation of the “parity” debate — whether state courts are as fair or as competent as the
federal courts to resolve federal claims. See generally FEDERAL COURTS, supra note 25, at
Brian W. Blaesser, Closing the Federal Courthouse Door on Property Owners: The
Ripeness and Abstention Doctrines in Section 1983 Land Use Cases, 2 Hofstra Prop. L. J.
73, 74 (1988).
Michael E. Solimine, Rethinking Exclusive Federal Jurisdiction, 52 Univ. Pitt. L. Rev. 383,
418 (1991) (surveys section 1983 decisions during 1987 and concludes that “state courts are
dealing with section 1983 much as are their federal counterparts”).
See, e.g., Loveladies Harbor, Inc. v. United States, 15 Cl. Ct. 381 (1988) (Corps of
Engineers’ reasons for denying wetlands fill permit make further applications under
Perhaps the federal-defendant portion of H.R. 1534 was inserted simply for the sake
of treating federal and state/local defendants alike.
Description of bills
To address the foregoing issues, the H.R. 1534 bills lower the abstention and
ripeness barriers in federal court. (Congress may be prohibited constitutionally from
lowering them in state courts.) At the same time, they expressly disavow any intent
that their key provisions alter the substantive law of takings. As noted, H.R. 1534
applies to federal-court suits against both local governments and the United States.78
Claims against local governments: abstention. H.R. 1534 instructs that in
actions under the jurisdictional provisions of 28 U.S.C. § 1343(a) — which applies
to “section 1983" and other civil rights statutes — a federal district court may not
abstain from exercising its jurisdiction if the use of real property is involved, no statelaw claim is alleged, and no parallel state-court proceeding is pending. Where such
an action cannot be decided without resolution of an unsettled question of state law,
the court may certify the question to the highest appellate court of the state.
Certification to a state high court can be used only when the state law question will
significantly affect the federal claim, and is "patently unclear."
Claims against local governments: ripeness of property rights claims. The bill
declares that section 1983 actions for “deprivation of a property right or privilege
secured by the Constitution” shall be ripe when a local agency “final decision”
occurs.79 A “final decision” exists if -- (1) the official makes a “definitive decision
regarding the extent of permissible uses on the property that has been allegedly
infringed or taken”; (2) one "meaningful application," as defined by the locality, to
use the property has been submitted "but has not been approved" and one appeal or
waiver has been applied for and "not been approved" (unless unavailable, incapable
of providing the relief requested, or futile); and (3) if the local government's
disapproval explains in writing the development that would be approved, the
landowner has submitted a new proposal "taking into account" that explanation,
which "has not been approved," and one variance or appeal has been applied for and
"not been approved" (if available). Finally, where review of the case by elected
officials is offered, the landowner must have been denied such review.
From this point on, we refer only to local, rather than local and state, governments. The
portion of H.R. 1534 dealing with nonfederal defendants operates by amendment of the
jurisdictional provision for the Civil Rights Act of 1871. Section 1983, the most frequently
used provision in that statute, is chiefly employed in suits against local governments.
Municipalities have been held subject to suit under section 1983. Monell v. Dep’t of Social
Services, 436 U.S. 658 (1978).
The majority of takings actions against nonfederal defendants are brought under section
In the usual circumstance, the effect of these provisions is to allow the local land
use agency at least two and up to four opportunities to rule on development
To constitute a “final decision,” the party seeking redress need not exhaust state
These provisions lower the hurdles of existing takings/ripeness law in two key
ways. First, H.R. 1534 imposes an absolute limit on the procedural steps a landowner
must take before takings ripeness is established, in contrast with the current case-bycase approach. The bill thus places a bound on Williamson County finality ripeness.80
Second, the bill eliminates entirely the other Williamson County ripeness test: its
demand that the landowner exhaust possibilities for obtaining state-forum
compensation before coming to federal court.
Claims against the United States: ripeness of property rights claims. The H.R.
1534 bills declare that claims founded upon a property right or privilege secured by
the Constitution, that was allegedly “infringed or taken” by the United States, shall
be ripe when a “final decision” occurs.81 "Final decision" is defined as above, except
that in the case of the federal government, no provision is included for written
explanations of what the land use-restricting agency will accept.
The federal-defendant provisions do not address the compensation-ripeness
requirement, since it applies solely to suits against local governments.
Notice by federal agencies. H.R. 1534 requires that whenever a federal agency
takes action "limiting" the use of private property, it shall notify the property owner
of his or her rights under H.R. 1534. No exceptions are stated.
Issues raised by the bills
1. Federalism: congressional implications
Recent years have seen increasing congressional insistence that the federal
presence in various fields be reduced, leaving matters to the states. H.R. 1534
arguably goes in the opposite direction, by requiring federal judges to rule on takings
and other claims against local government that formerly could have been deflected to
the state courts or postponed pending further local proceedings. This point draws
In one minor respect, the bill may represent an expansion of the existing finality-ripeness
rule. It is beyond our scope here to research whether existing takings-ripeness law requires
the landowner, following denial by the initial decisionmaker and denial of any variance
application, to additionally be denied on appeal to any separate review body within the local
government, such as a zoning board of appeals. If takings-ripeness law does not require such
a “vertical” appeal, but H.R. 1534 is held to do so, the bill would add a new ripeness
requirement for the takings plaintiff.
H.R. 1534 provisions make this rule applicable regardless of whether the claim is brought
in the district court under the “little Tucker Act” (28 U.S.C. § 1346(a)) or in the U.S. Court
of Federal Claims under the regular Tucker Act (28 U.S.C. § 1491(a)).
particular importance from the historically local nature of most land use regulation in
the United States and its sensitivity to local needs and priorities. Perhaps for that
reason, H.R. 1534 is the only property rights bill in the 8-year history of congressional
involvement with this issue to address primarily local, rather than federal, regulation
of property use.
On the other hand, an enacted H.R. 1534 would not be alone in its seeming
inconsistency with current devolution rhetoric. Simultaneous with such policy
statements, Congress has fostered greater federal-court involvement in formerly statecourt matters by creating new federal causes of action in several areas, such as
product liability law and criminal law.
Another congressional implication flows from the argument that to the extent
land developers are suffering unfair burdens at the hands of local government
regulators, H.R. 1534 relieves only a symptom (takings actions dismissed on threshold
issues), not the underlying problem. That problem, assertedly, is the localgovernment development approval process and its inability to produce expeditiously
a decision that meets finality-ripeness requirements. Observers charge further that
some local land regulators deliberately draw out the development approval process
in the hope that the developer will lose interest. By avoiding a final decision, the
regulator hopes that finality ripeness doctrine will bar the landowner from maintaining
a taking action. Therefore, it has been argued, the more direct solution to the
landowners’ woes is to reform how local jurisdictions deal with development
proposals. And that solution, it has been contended, should come from the states
themselves, not the Congress.82
2. Federalism: judicial implications
H.R. 1534 runs counter to the often-expressed view of federal judges that federal
courts should minimize their presence in local land-use affairs, as a matter of
intergovernmental comity.83 Bill supporters respond that because a federal
See, e.g., Permit Streamlining Act, Cal. Gov’t Code § 65920 et seq. The PSA applies to
decisions by California’s state and local agencies on the completeness of applications for
development permits, and on their approval or disapproval. Under the statute, failure of the
agency to act on the application within the prescribed time limits must be deemed approval
of the development project.
See, e.g., Dodd v. Hood River County, 136 F.3d 1219, 1230 (9th Cir. 1998) ("Courts of
Appeals were not created to be `the Grand Mufti of local zoning boards'), quoting from
Hoehne v. County of San Benito, 870 F.2d 529, 532 (9th Cir. 1989); Spence v. Zimmerman,
873 F.2d 256, 262 (11th Cir. 1989) (“federal courts do not sit as zoning boards of review”);
Littlefield v. City of Afton, 785 F.2d 596, 607 (8th Cir. 1986) (“We are concerned that
federal courts not sit as zoning boards of appeals ....”); Golemis v. Kirby, 632 F. Supp. 159,
163 (D.R.I. 1985) (“So long as a state provides meaningful legal remedies for [land-userelated takings], the state must be given first crack at keeping its own house in order”); City
of Oak Creek v. Milwaukee Metro. Sewerage Dist., 576 F. Supp. 482, 487 (E.D. Wis. 1983)
(“Section 1983 was never intended as a vehicle for federal supervision of land use policy”).
One federal court based its reluctance to decide a local land-use taking case not on lofty
concerns of comity, but rather on pragmatics. Scudder v. Town of Glendale, 704 F.2d 999,
constitutional right (the Takings Clause) is involved, the federal courts should be as
open to deciding the case as when any other federal constitutional right is sought to
be vindicated. When a local government erects a nativity scene in front of the town
hall, or is alleged to engage in racial discrimination, federal courts assertedly do not
defer to their state counterparts. Neither, it is said, should they with regard to
3. Effect on the workload of the federal courts
H.R. 1534 may well increase the workload of the federal courts, particularly
from takings litigation. Congress may wish to consider this possible effect in the
context of current debate over existing vacancies on the federal bench and whether
the federal judiciary is overburdened.
The increase in federal-court section 1983 filings is likely to be most pronounced
at the outset. Landowners’ and developers’ counsel, long frustrated by existing
ripeness and abstention barriers, doubtless will want to test at the earliest opportunity
the extent to which H.R. 1534 has improved their prospects. The early rush to the
courthouse may subside a bit if landowners simply get ushered out on takings grounds
rather than ripeness/abstention grounds. H.R. 1534 supporters dispute claims of
increased filings, asserting that most builders are small operations that could ill afford
to maintain a taking action, particularly since H.R. 1534 does not ease the rigorous
substantive criteria for proving a taking.
Not as easily called into question, however, is the prediction of increased federalcourt workload as a result of the land-use-based section 1983 litigation that, in the
absence of H.R. 1534, would have been filed in the state courts.85 As we have seen,
H.R. 1534 lowers the ripeness hurdle only in federal court; it does not apply to section
1983 actions in state court. That being so, it is likely that following enactment of
H.R. 1534, far fewer property-rights-related section 1983 takings claims will continue
to be filed in the courts of most states.
4. Ripeness: effect of requiring federal judges to decide takings issues without an
1003 (7th Cir. 1983) (“availability of federal review of every zoning decision would only
serve to further congest an already overburdened federal court system”).
This argument of bill supporters is somewhat undermined to the extent it refers to the
ripeness, as opposed to abstention, hurdles in federal court. As noted, takings-ripeness
precepts are deemed to flow from the very text of the Takings Clause. If they are different
than the ripeness hurdles interposed in First or Fourth Amendment-based section 1983 actions,
that is because the underlying constitutional language is different.
It would be useful to get a handle on the number of such land-use-based section 1983 filings
in state court. All that can be put forth now, however, is one treatise writer’s assertion that
the annual number of all section-1983 reported appellate decisions from state courts is
“rapidly expanding.” STEVEN H. STEINGLASS, SECTION 1983 LITIGATION IN STATE COURTS
§ 2.7 (1994).
As noted, H.R. 1534 explicitly disclaims any change to the judicial standards for
determining which government regulations effect takings. Thus, after being helped
over the ripeness hurdle by H.R. 1534, the landowner still has to make a traditional
Therein lies a problem. The Supreme Court’s finality ripeness hurdle, which
H.R. 1534 would abridge, was crafted with a clearcut purpose. It was designed, said
the Court, to ensure that once met, a court would have the critical information it
needs to apply certain takings factors. In particular, a court can’t determine whether
the “economic impact” and “interference with investment-backed expectations”
factors of the Penn Central regulatory takings test point to the existence of a taking
without knowing exactly what uses the local agency proposes to permit on the
As noted, the process of finding out exactly what uses the local agency will
permit can be a prolonged one, and lies at the very heart of the developers’ grievance.
But also as noted, it is arguably a necessary process in many cases if the economic
impact and interference-with-expectations factors are to be applied in an informed
way. By limiting how long the landowner must pursue the approval process, H.R.
1534 will in many instances ask the federal judge to rule on the taking issue with less
information than he or she would have demanded without the bill. Since the burden
of proving a taking is on the landowner, a judge who feels there is an inadequate
factual basis to apply the takings factors will be constrained to rule against the
So does H.R. 1534 merely substitute a judgment that there is no taking for what
would have been, in the absence of H.R. 1534, a dismissal for lack of ripeness? Does
the plaintiff simply lose on a different legal theory? In many cases, probably yes.
Lack of the necessary record for applying the takings factors will dictate a ruling on
the merits against the plaintiff, even though he or she has been pushed over the
ripeness threshold by H.R. 1534. In other cases, however, H.R. 1534 proponents
argue that the bill will compel federal judges who are using ripeness disingenuously
— that is, dismissing cases when there is adequate information to apply the takings
factors — to confront the takings question. Concededly, many of these court
decisions ultimately may find no taking. But some will hold for the landowner, and
either way, the argument runs, the taking issue in the case will have been resolved.
5. Ripeness: effect of bill on the local agency/developer relationship.
To be sure, H.R. 1534 imposes no direct federal controls on the discretion of
local land use agencies. The argument is pressed, however, that if H.R. 1534 were
A traditional takings case generally involves showing that most or all of the three factors
announced by the Supreme Court in Penn Central Transp. Co. v. New York City, 438 U.S.
104 (1978) point to a taking. Those factors are: (1) the economic impact of the government
action; (2) its interference with reasonable investment-backed expectations; and (3) the
character of the government action. As a practical matter, courts require the landowner to
show that the government action has eliminated all or substantially all use or value of the
enacted, its inflexible limit on the procedural steps the landowner must take would
change fundamentally the dynamics of how developers and local planning
commissions arrive at mutually acceptable development projects. Developers, it is
said, would have less incentive to negotiate with local land regulators over creative,
alternative development scenarios. Rather, the developer will be tempted to insist on
its initial, presumably profit-maximizing proposal, knowing that the local jurisdiction
is unlikely to disapprove because it can ill afford to defend the resulting taking suit
which, owing to H.R. 1534, is likely to be on the merits.87
This argument rests on the assumption that the cost/time in defending a taking
action on the merits, possibly all the way through a full trial, is significantly greater
than the cost/time in defending one dismissed on a threshold ripeness issue (usually
by pretrial motion). Those who take this position also suggest that the increased
number of takings claims likely if H.R. 1534 is enacted will make local regulators
reluctant to rein in developers.
In response to criticism that H.R. 1534 would chill local zoning boards in the
exercise of their police-power duties, the introduced bill was amended in the House
to add additional steps the landowner must take to establish ripeness. As amended
(and adopted in the Senate version), if the local agency's first disapproval includes a
written explanation of the development that would be approved, the landowner must
reapply "taking into account" the explanation and not be approved again, and have a
variance or appeal not be approved. How much this new provision will abate any
chilling effect H.R. 1534 may have is speculative. In the absence of any legislative
history on how detailed and complete the written explanation must be, it is unclear
whether small local governments (the large majority of local governments) would
have the planning resources to prepare them. Currently, the burden of preparing
development proposals falls on the developer. Nor is it clear how courts will construe
the phrase "taking into account," so it is hard to predict how far the developer must
go in adjusting its first proposal in the direction of the written explanation.
6. Ripeness: whether aspects of the current Supreme Court takings-ripeness test that
the bill would eliminate are constitutionally required.
As mentioned, ripeness requirements in the federal courts originate in either
Article III of the Constitution or the inherent “prudential” power of the judiciary to
refuse to exercise jurisdiction where inappropriate. For some purposes, it makes little
difference into which category a given ripeness prerequisite falls. But where, as in
H.R. 1534, Congress proposes to do away with a ripeness hurdle, the category
becomes quite important. An Article III court, such as a federal district court, has
subject matter jurisdiction only over “cases” and “controversies.” If a ripeness
element is constitutionally based, this is equivalent to saying that it must be satisfied
to make out a case or controversy. Congress cannot dispense with the need for
See, e.g., Sharon Buccino, Turmoil over "Takings": How H.R. 1534 Turns Local Land Use
Disputes into Federal Cases, 28 Envtl. L. Rptr. 10083 (1998).
plaintiffs to satisfy such an element and still leave an Article III court with
Raising this issue is a lot easier than resolving it. The Supreme Court has been
in flux as to which ripeness elements are constitutional (statutes may not eliminate)
and which are prudential (statutes may eliminate). In particular, it has sent mixed
signals as to the compensation ripeness doctrine announced in Williamson County.89
Some legal commentators have regarded compensation ripeness, and even finality
ripeness, as constitutionally based.90 This takings-specific ripeness debate is playing
out against the backdrop of a broad Supreme Court trend toward regarding ripeness
as largely, though not exclusively, prudential.
7. Ripeness: tension between bill’s elimination of state-compensation ripeness and
the terms of section 1983.
By its terms, the nonfederal provisions of the bill purport to amend only 28
U.S.C. § 1343, a provision that gives federal district courts jurisdiction over section
1983 claims, among others. However, by eliminating the state-compensation
requirement of Williamson County, H.R. 1534 is in tension with, and arguably amends
by implication, section 1983 itself.
The reasoning runs as follows. Section 1983 creates a federal cause of action
for state action depriving persons of “rights ... secured by the Constitution.” But the
Supreme Court holds that “a property owner has not suffered a violation of the
[Constitution’s] Just Compensation Clause until the owner has unsuccessfully
attempted to obtain just compensation through the procedures provided by the
This is not an issue in the U.S. Court of Federal Claims, the focus of the federal-defendant
provisions of H.R. 1534. “Although established under Article I, the [U.S. Court of Federal
Claims] traditionally has applied the case or controversy requirement unless jurisdiction
conferred by Congress demands otherwise.” Massachusetts Bay Transp. Auth. v. United
States, 21 Cl. Ct. 252, 257-258 (1990) (emphasis added). The issue, however, would emerge
on appeal of the action to the U.S. Court of Appeals for the Federal Circuit, which is an
Article III court.
In Suitum, 117 S. Ct. At 1664, the Supreme Court declared that “[t]here are two independent
prudential hurdles to a regulatory taking claim brought against a state entity in federal court.”
(Emphasis added.) Follow-on text makes clear that the reference is to the finality and statecompensation prongs of Williamson County. However, in the same paragraph the Court
contradictorily seemed to say that state-compensation ripeness is constitutionally based —
more exactly, that it “stems from” the Takings Clause. In an earlier assertion of constitutional
basis, the Court in Williamson County recognized that “a property owner has not suffered a
violation of the Just Compensation Clause until the owner has unsuccessfully attempted to
obtain just compensation through the procedures provided by the State ....” 473 U.S. at 195
(emphasis added). If the state-compensation prong is constitutionally based, how can it be
only prudential (discretionary)?
See, e.g., Gregory M. Stein, Regulatory Takings and Ripeness in the Federal Courts, 48
Vand. L. Rev. 1, 16 (1995) (finality ripeness is prudential; compensation ripeness is
constitutional); Gregory Overstreet, The Ripeness Doctrine of the Takings Clause: A Survey
of Decisions Showing Just How Far Federal Courts Will Go to Avoid Adjudicating Land
Use Cases, 10 J. Land Use & Envtl. L. 91 (1994) (both are constitutional).
State.”91 That being so, a property owner who presents a taking-based 1983 claim
without having gone first to the state courts, a prerequisite eliminated by H.R. 1534,
alleges no deprivation of a federal constitutional right. Lacking such a deprivation,
what would be the basis of the section 1983 claim?
8. Ripeness: intent of bill’s references to property rights grievances other than Fifth
The ripeness provisions in the two H.R. 1534 biils refer not only to takings-based
section 1983 claims and takings claims against the United States. The bills speak of
section 1983 claims “to redress the deprivation of a property right or privilege secured
by the Constitution” and claims against the United States “founded upon a property
right or privilege secured by the Constitution, but [sic] was allegedly infringed or
taken ....” (Emphasis added.) For both nonfederal and federal defendants, the bill
defines “final decision” to mean “a definitive decision regarding the extent of
permissible uses on the property that has been allegedly infringed or taken ....”
Courts would be likely to give "infringed" some meaning beyond "taking."92 At
the very least, this bill language could be read to include property-based due process
claims. This view makes sense in the larger bill context, since the finality and statecompensation ripeness requirements that the bill targets have been applied by some
courts to substantive due process claims, as well as takings claims, against local landregulating agencies.
Alternatively, one could argue that the term has a broader meaning — that it
even creates a new cause of action for interferences with property that fall short of
takings and due process violations. Such a reading, however, seems to contradict the
bill text generally, which appears to confine itself to defining when ripeness occurs.
Congress may wish to clarify these matters.
9. Ripeness: implications of the bills' exemption from applying for an appeal or
H.R. 1534 declares that ripeness exists once the landowner applies for, but is
denied, one appeal or waiver from (1) the initial “definitive decision,” and (2)
disapproval of a reapplication by the owner that takes into account the local
government's written explanation of what it will accept (if one is prepared). The bill,
however, excuses the landowner from obtaining these denials where “no such appeal
is available, if it cannot provide the relief requested, or if the application or
reapplication would be futile."
Williamson County, 473 U.S. at 195.
Statutes are generally construed "so as to avoid rendering superfluous" any statutory
language. Astoria Federal Savings & Loan Ass'n v. Solimino, 501 U.S. 104, 112 (1991).
See esp. Bailey v. United States, 516 U.S. 137, 146 (1995) ("we assume that Congress used
two terms because it intended each term to have a particular, nonsuperfluous meaning").
Some debate has been sparked by the phrase "if it cannot provide the relief
requested." Read literally, the phrase appears susceptible of a reading whereby the
large majority of property owners could establish ripeness without appealing or
applying for a variance, by arguing that they desire relief of extreme degree or
nonregulatory nature. For example, the property owner could say that the relief he
or she desires from the regulatory restriction is monetary, that the local agency with
whom the appeal or variance application would be lodged has no power to grant
compensation, and therefore no appeal or variance application is necessary under H.R.
1534. A narrower interpretation of "cannot provide the relief requested" would
presumably assert that the phrase is implicitly limited to relief in the form of easing
the challenged restriction — that is, the sort of relief that disappointed landowners
typically seek from appeals or waivers.
10. Abstention: various issues.
1. The limitation of the abstention provisions of H.R. 1534 to claims involving
real property has prompted some members to contend that other section 1983 claims
in federal court, such as those based on race discrimination, are effectively demoted
in importance. Abstention is indeed invoked by federal courts to dismiss or stay nonreal-property-related section 1983 claims,93 though it is not clear that the practice
occurs in as great a proportion of cases as with property-based claims.
2. H.R. 1534 instructs a federal judge not to abstain in actions covered by 28
U.S.C. § 1343(a), in specified circumstances. Existing federal statutes generally run
in the contrary direction — authorizing or requiring abstention (though usually not
by that name), rather than prohibiting it. The most frequently invoked is the AntiInjunction Act.94
3. Recall the certification provisions in the abstention part of H.R. 1534. Almost
all states have now enacted laws or judicially adopted rules allowing the highest court
of the state to answer questions of state law that have been “certified” to them by
federal (and other state) courts.95 A few, however, have not. In addition, in those
For example, abstention has been held appropriate in section 1983 actions involving the
Sixth Amendment right to counsel, Mann v. Jett, 781 F.2d 1448 (9th Cir. 1986); conditions
of confinement at a juvenile facility, Manny v. Cabell, 654 F.2d 1280 (9th Cir. 1980); the
denial of medicaid benefits, Winters v. Lavine, 574 F.2d 46 (2d Cir. 1978); gender-based
discrimination, Tiger Inn v. Edwards, 636 F. Supp. 787 (D.N.J. 1986); and a non-realproperty taking claim, Firemen's Fund Ins. Co. v. Garamendi, 790 F. Supp. 938 (N.D. Cal.
1992), affirmed, 87 F.3d 290 (9th Cir. 1996).
28 U.S.C. § 2283. Other examples are 28 U.S.C. § 1334 (bankruptcy proceedings), 28
U.S.C. § 1341 (collection of state taxes, where adequate remedy exists in state courts), and
28 U.S.C. § 1342 (state utility rate orders, where adequate remedy exists in state courts).
17 CHARLES A. WRIGHT, ARTHUR R. MILLER, AND EDWARD H. COOPER, FEDERAL
PRACTICE AND PROCEDURE § 4248 (1988 and 1997 supp.) (listing 44 states, plus Puerto Rico
and the District of Columbia). In one of these states, however, the certification statute was
held unconstitutional. Zeman v. V.F. Factory Outlet, Inc., No. 72613 (Mo. July 13, 1990).
Since the cited supplement to the foregoing treatise, California adopted a certification
states having certification procedures, not all will accept certified questions from
federal district courts, as opposed to the federal courts of appeal or Supreme Court.96
Thus, there may be occasions under H.R. 1534 when state high courts cannot accept
a federal-court request to resolve a state law question. H.R. 1534 appears not to seek
any change in state certification procedures, nor to compel those few states lacking
such procedures to adopt them.
Brief comparison of the two process approaches
in the bills
The two approaches employed by H.R. 992 and H.R. 1534— (1) expanding the
jurisdiction of the CFC and district courts; (2) lowering abstention and ripeness
hurdles — both modify judicial process. Yet this report shows that they treat very
different aspects of that process. Some obvious contrasts:
Principal purpose: The jurisdiction expansion approach targets a jurisdictional
split that now requires property-owner plaintiffs to pursue their remedies against the
United States in two federal courts. In contrast, the abstention/ripeness approach
aims to lower the threshold hurdles of abstention and ripeness, principally invoked
by federal district-court judges seeking not to reach the merits of property-owner
actions against local land-use agencies.
Beneficiaries: The jurisdiction expansion approach benefits only property
owners suing federal agencies. The abstention/ripeness approach primarily benefits
property owners suing municipalities and counties, where these hurdles are typically
Types of property covered: The jurisdiction expansion approach applies to legal
actions againstgovernment conduct that affects any type of property — real, personal,
tangible, intangible. Similarly, the ripeness provisions of the bills are not by terms
limited to any one type of property, though they fit comfortably only when applied to
real property. The abstention provisions are confined expressly to real property.
There are also differences between the bills as to whether the term "property" is
used in the Takings Clause sense only or in both the Takings Clause and Due Process
procedure by rule of court. Cal. R. Ct. No. 29.5, effective Jan. 1, 1998.
See, e.g., Cal. R. Ct. No. 29.5.