This provision is a corollary to the amendment clarifying jurisdiction over claims for "monetary relief," since, as explicated by the Supreme Court in Bowen v. Massachusetts, 487 U.S. at 893-901, many judgments for a sum of money constitute awards of "specific relief deemed equitable in nature, especially in contract cases and in most review-of-agency-action cases, including military and civilian pay and price support cases. Enactment of this provision will remove all doubt concerning the authority of the court to award complete relief and otherwise render appropriate judgments in cases within its jurisdiction.

(d) This section adds a new paragraph (5) to 28 U.S.C. § 1491(a) making it clear that in cases which constitute judicial review of administrative agency action, the APA standards of review set forth in 5 U.S.C. § 706 shall apply. One would assume, from the face of § 706 ("To the extent necessary to decision and when presented, the reviewing court shall *** [duties of court reviewing agency action and scope of review defined]" (emphasis added)), that it is already plainly applicable to the "reviewing court" in every case which constitutes judicial review of agency action.

The former Court of Claims, in a number of opinions, referred to the Administrative Procedure Act, 5 U.S.C. §702, as the legislative basis for a plaintiffs right to seek judicial review of final agency action of various kinds by a suit under the Tucker Act. Sanders v. United States, 219 Ct. Cl. 285, 300, 594 F.2d 804, 812 (1979) (military pay case; review of a decision of the board for correction of military records); Jarett v. United States, 195 Ct. Cl. 320, 326-29, 451 F.2d 623, 626-28 (1971) (civilian pay case; review of decision of Maritime Administration; "one need not burn the midnight oil to discover the relevance of the Administrative Procedure Act *** 5 U.S.C. §§ 701-706"; "we must conclude that *** [the suit] is a case coming within section 702, thereby giving plaintiff a right of review "); Keco Industries, Inc. v. United States, 192 Ct. Cl. 773, 781, 428 F.2d 1233, 1238 (1970) (bid protest case; pursuant to 5 U.S.C. §702, "judicial review

of agency action will not be denied unless there is clear and convincing evidence of a contrary legislative intent "); Hertzog v. United States, 167 Ct. Cl. 377, 384 (1964) (military pay case; review of decision of board for correction of military records).

Likewise, decisions of the Court of Federal Claims have found the APA controlling in cases constituting judicial review of agency_action. Bradley v. United States, 26 Cl. Ct. 699, 701–03 (1992), aff'd per curiam, 1 F.3d 1252 (Fed. Cir. 1993) (prevailing wage rate case; review of rulemaking decision of Treasury Department; review standards in 5 U.S.C. §706 apply); Simons v. United States, 25 Cl. Ct. 685, 694695 and n. 18 (1992) (dairy termination program case; review of decision of USDA, review standards in 5 U.S.C. §706 apply); Dory v. United States, 24 Cl. Ct. 615, 624-26 (1991) (dairy termination program case; review of decision of USDA, review standards in 5 U.S.C. §706 apply); Pender Peanut Corp. v. United States, 20 Cl. Ct. 447, 451-52 and n.3 (1990) (farm price support case; review of decision of USDA; review standards of 5 U.S.C. §706 apply); Stegall v. United States, 19 Cl. Ct. 765, 769-70 (1990) (farm subsidy program case; review of decision of USDA; "The Administrative Procedure Act [5 U.S.C. §§ 701-706] *** provides the framework for determining when a court may review an agency's determination. * * * The APA is not a jurisdictional statute. ").

Despite this history of invocation and application of the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. §§ 701-706, in cases before the old

ing that the Court of Claims could employ substantive equitable doctrines as an incident to adjudication of claims seeking monetary relief).

4The Administrative Procedure Act, 5 U.S.C. §706, provides the following scope and standards for judicial review of agency action:

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—

(1) compel agency action unlawfully withheld or unreasonably delayed;

(2) hold unlawful and set aside agency action, findings, and conclusions found to be―

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

").

Court of Claims and the Court of Federal Claims, two recent decisions of the Court of Appeals for the Federal Circuit have clouded the issue concerning applicability of the APA in agency review cases before the Court of Federal Claims. Mitchell v. United States, 1 F.3d 1252, 1993 WL 190890 (Fed. Cir., June 4, 1993) (unpublished disposition) (military pay case; review of decision of board for correction of military records) (asserting without explanation that Claims Court has no authority to invoke the APA); Murphy v. United States, 993 F.2d 871, 874 (Fed. Cir. 1993) (military pay case; review of decision of board for correction of military records) (asserting without explanation that "the Claims Court has no authority to invoke the APA The addition of the proposed new paragraph to 28 U.S.C. § 1491(a) will end all doubt and confusion concerning the applicability of the Administrative Procedure Act, and especially the judicial review standards of 5 U.S.C. §706, to agency review cases litigated in the Court of Federal Claims. This provision will be of obvious assistance to litigants in such cases and promote the court's efficiency in handling such cases. This clarification will make plain, whenever there is occasion to construe 5 U.S.C. §§ 701-706, that with respect to a permitted appeal from agency action to any court with jurisdiction over the appeal, be it district, circuit, or Federal Claims, the standards of review set forth in 5 U.S.C. §706 apply and control.R

CONCLUSION

The United States Court of Federal Claims is uniquely "The Citizens' Court," and it is the principal forum for monetary claims against the United States. The court's jurisdiction originated in 1855, when Congress acted to resolve a problem of tremendous proportion. Because sovereign immunity barred legal redress of wrongs committed by the United States government, the only option for a citizen with a claim against the government was a private bill before the Congress. Thus, in each session of Congress, numerous citizens and groups sought private bills. As this system of private bills proved too burdensome, inefficient, and likely to spawn corrupt practices, Congress created the Court of Claims.

The creation of a court to do justice responded to a basic democratic imperative: fair dealing by the government in disputes between the government and the private citizen. Indeed, as Abraham Lincoln noted:

It is as much the duty of Government to render prompt justice against itself, in favor of citizens, as it is to administer the same between private individuals.

Throughout its history, the Court of Claims strove to give vitality to the spirit of Abraham Lincoln's admonition.

Through various changes in the structure and names of the court, the basic jurisdiction of the present United States Court of Federal Claims has remained remarkably stable for well over a century. It is a jurisdiction where the federal government may be sued for its alleged violations of the rights of citizens. It is both a tribute to our Congresses and Presidents, as well as to our Nations' deeply ingrained respect for legal rights, that since 1855, the notion that government must deal with its citizens on the basis of legal equality has never been seriously questioned. The

More recently, however, a panel of the Court of Appeals for the Federal Circuit indicated that both the Federal Circuit and the Court of Federal Claims employ review standards prescribed by the Administrative Procedure Act, 5 U.S.C. §706, when conducting judicial review of agency action. McCall Stock Farms, Inc., No. 93-5077 (Fed. Cir. Dec. 23, 1993) (slip op. at 9) (citing Foote Mineral Co. v. United States, 228 Ct. Cl.230, 233-34, 654 F.2d 81, 85 (1981), for proposition that the ordinary standards for review of agency action reflected in the APA, 5 U.S.C. §706(2), governed judicial review of agency action in the Court of Claims and citing Heinemann v. United States, 796 F.2d 451, 454-55 (Fed. Cir. 1986), for proposition that the Federal Circuit and Court of Federal Claims both employ these same standards in reviewing agency action).

This more recent pronouncement is consistent with the review_provision set forth in the bill. It is sometimes mistakenly assumed that the Administrative Procedure Act assigned judicial review of agency action to the district courts. The judicial review provisions of the APA (originally constituting section 10 of the Act of June 11, 1946, Pub. L. 79-404; now set out, as amended, in 5 U.S.C. §§ 701-706) are emphatically not jurisdictional provisions. Califano v. Sanders, 430 U.S. 99, 104-07 and n.6 (1977) ("None of the [APA judicial review] sections *** is phrased like the usual grant ofjurisdiction to proceed in the federal courts. Furthermore, * * * there is no basis for concluding that Congress actually conceived of the Act in jurisdictional terms. *** We thus conclude that the APA does not afford an implied grant of subjectmatter jurisdiction permitting federal judicial review of agency action. ; McGrath v. United States, 207 Ct. Cl. 978, 521 F.2d 1406 (1975) ("The Administrative Procedure Act is not a jurisdictional statute but merely outlines procedures for judicial review of administrative action. ")

judicial review sections of the legislation before this committee would further the mission of the court, by correcting procedural and structural problems faced by litigants before the district courts and the Court of Federal Claims.

The CHAIRMAN. Well, thank you, judge. That was very helpful. Ms. Marzulla, let's call you next, and then we will go to your husband.

STATEMENT OF NANCIE G. MARZULLA

Ms. MARZULLA. Thank you, Senator. I am delighted to have the opportunity to speak to you today regarding the need for comprehensive property rights legislation. The need for such legislation has never been greater. Through its ability to regulate, government today is destroying the lives and livelihoods of countless of individuals all across the country, all in violation of the fifth amendment. I am here today on behalf of millions of Americans whose property is being destroyed by excessive and overreaching government regulations. Yet, these same Americans have found that the path to obtaining compensation is neither just nor affordable. In fact, we are so besieged with requests for assistance from such property owners that we often compare our work to that of a doctor in the field practicing triage, using our limited resources to help only those most able to survive.

We represent individuals such as Bob and Mary McMackin who, in the Poconos, in Pennsylvania, after having obtained all the necessary permits and government approvals, built a house on dry land and lived in it for 4 years. Then one day they received a letter in the mail from the Army Corps of Engineers telling them that they had built on a wetland, and as a result they now face civil fines of up to $50,000 per day and criminal sanctions.

We also represent another gentleman named Gregory Banford, a farmer in western Nevada, in one of the most arid States in the country, in one of the most arid portions of that State, who was told one day by the government that he could no longer receive water with which to grow his crops. This is despite the fact that his farm sits atop the largest underground aquifer in the United States.

These cases are far from random anecdotes. The common theme they all convey is of a government which, in its zeal to do good, has lost sight of its constitutional duty to pay for what it takes. Indeed, the dollar amounts of claims now pending before the U.S. Court of Federal Claims is reported to be well over $2.5 billion, and this statistic does not even begin to reflect the countless other individuals who simply do not have the resources to litigate against the Federal Government. Indeed, few corporations today willingly engage in takings litigation against the Federal Government.

That is because regulatory takings litigation today is a nightmare that only the most well-financed and dedicated property owner can endure, and that is because the government has at its disposal a huge arsenal of defenses to throw out at the property owner to defeat his claim for just compensation, plus all of the statutes and regulations are written so as to favor the Government versus the property owner.

Finally, courts can employ this ad hoc factual inquiry which we have discussed earlier today to determine whether a compensable

taking has occurred, which has devolved into an exhaustive factual case-by-case inquiry. Look at the major takings cases now pending before the court.

1902 Atlantic-that was one case in which it took 12 years for the property owner to be compensated. Loveladies Harbor, another case which is pending that case has also been in litigation for 12 years. Florida Rock-that case has been in litigation for 14 years, and yet the property owner has yet to be paid. Whitney Benefitsthat case has been in litigation for 16 years, and yet the property has yet to be paid. Hendler v. United States-that case has been in litigation for 12 years. Plaintiffs in that case are all extremely elderly and they hope to live to see the day when the Government will pay them for the taking of their property.

In the face of such obstacles, most property owners simply give up or agree to onerous conditions attached to the use of their land. In short, a constitutional right available only to the wealthy and the most obdurate is no guarantee at all.

Comprehensive property rights legislation can put the notion of justice back into just compensation by ensuring that all property owners are paid for what the Government takes. It can also put an end to this lengthy and arduous litigation process which wastes everyone's resources, the Government's included.

Three things are needed in property rights legislation. First, it should draw a bright line for establishing a duty to pay for property that has been taken via regulation. Second, it should establish a quick and affordable means by which property owners can obtain just compensation, such as an arbitration procedure. Lastly, it should ease the procedural hurdles which bar property owners from getting relief from courts on the merits of their case.

In closing, let me say that Judge Jay Plager of the U.S. Court of Appeals for the Federal Circuit recently wrote in the Hendler case that the Federal Government can, like a thief in the night, break in and steal precious property rights. Recently, the House of Representatives locked the front and the back door against this thief by passing its own property rights bill, H.R. 925. Today, we are here to ask the Senate to lock the windows, too, by passing comprehensive property rights legislation.

Thank you.

The CHAIRMAN. Well, thank you.

Roger Marzulla, we ask you to make any comments you would care to make. You are an expert in this field and we would be happy to listen to you as well.

Mr. MARZULLA. Thank you, Senator. Having no prepared remarks, may I heartily endorse the remarks made by my wife. Indeed, it seems to me I have no alternative if I am going home after this hearing.

The CHAIRMAN. It is always good to have domestic agreement is all I can say.

Mr. MARZULLA. I would underscore, if I might, however, Senator, an important point that you made in your opening statement, and that is that this bill is crafted, as I understand it, so as to implement the guarantees that are already contained in the Constitution.

-Many of the situations that have hypothetically been posed today and in the debate over this bill in the House are situations in which the Court of Federal Claims would appropriately, we hope, grant relief, so that the argument with the bill's standards is for the most part an argument not with S. 605, but, in fact, an argument with the fifth amendment to the Constitution. It is an argument as to whether or not the individuals who pose those objections believe in the principle that some people alone should not be forced to bear the costs which, in fairness and justice, belong to the public as a whole.

Let me just point out two other items that have arisen in the course of the discussion with the Associate Attorney General just to make sure that there is no question on the subject. The bill clearly does not cover local zoning or other State and local activities. It is narrowly crafted to apply specifically to Federal activities. Secondly, consistent with that, in response to Senator Feinstein's questions earlier, the bill has nothing to do with the allocation of water rights under State law, a function which, I might add, under our constitutional system which is left exclusively with the States. It covers only those circumstances, Senator, in which the water right allocated and vested as a property right under State law is then taken away by the Federal Government. Under existing condemnation law, that is a compensable taking and would be compensated if the Federal Government were to condemn those water rights, as it has frequently done.

With those brief comments, I am happy to respond to any questions.

[The prepared statement of Ms. Marzulla follows:]

PREPARED STATEMENT OF NANCIE G. MARZULLA

MR. CHAIRMAN AND MEMBERS OF THE COMMITTEE: Thank you for inviting me to appear before this _Committee today to discuss the vital need for private property rights legislation. The need for property rights legislation was well-described in a recent decision by Chief Judge Loren A. Smith of the Court of Federal Claims:

This case presents in sharp relief the difficulty that current takings law forces upon both the federal government and the private citizen. The government here had little guidance from the law as to whether its action was a taking in advance of a long and expensive course of litigation. The citizen likewise had little more presidential guidance than faith in the justice of his cause to sustain a long and costly suit in several courts. There must be a better way to balance legitimate public goals with fundamental individual rights. Courts, however, cannot produce comprehensive solutions. They can only interpret the rather precise language of the fifth amendment to our constitution in very specific factual circumstances. To the extent that the constitutional protections of the Fifth amendment are a bulwark of liberty, they should also be understood to be a social mechanism of last, not first resort. Judicial decisions are far less sensitive to political branches of our great constitutional system. At best courts sketch the outlines of individual rights, they cannot hope to fill in the portrait of wise and just social and economic policy.

Bowles v. United States, 31 Fed. Cl. 37 (1994).

I serve as President of Defenders of Property Rights, the nation's only nonprofit legal defense foundation dedicated exclusively to the protection of constitutionallyguaranteed property rights. Through a program of litigation, education and legislative support, Defenders seeks to realize the promise of the Bill of Rights of the U.S. Constitution that private property shall not be "taken for public use, without just compensation". Defenders has a large national membership representative of the property owners, users and beneficiaries of the rights protected by the Constitution