"Property Rights" Bills Take a Process Approach:
H.R. 992 and H.R. 1534

Robert Meltz
American Law Division

Updated June 24, 1998

97-877 A

CONTENTS:

Summary
"Property Rights" Bills Take a Process Approach: H.R. 992 and H.R. 1534
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

SUMMARY

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 ripeness?

"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 Clause. (See Endnote 1.)

Property rights bills have been introduced in every Congress since 1990. (See Endnote 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 enacted.

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 Judiciary ("Citizens Access to Justice Act"). The first generation of process bills, of the assessment genre, is examined in an earlier CRS report. (See Endnote 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. (See Endnote 4.)

Background

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, (See Endnote 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 private bills.' (See Endnote 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. (See Endnote 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. (See Endnote 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. Section 1500.

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.

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. Section 1500.

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. (See Endnote 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. (See Endnote 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. (See Endnote 11.) At this point, 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), (See Endnote 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. Section 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. Section 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.' (See Endnote 13.) At first blush, then, section 1500 seems to force an election between 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. (See Endnote 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. (See Endnote 15.) Though eliminated by the Federal Circuit in 1992, (See Endnote 16.) the different-remedy exception was reinstated by the same court in 1994. (See Endnote 17.) Thus, a plaintiff today may simultaneously maintain an invalidation action in the district court and and a compensation action in the CFC. (See Endnote 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 have consequences. (See Endnote 19.)

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 federal takings.

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. (See Endnote 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). (See Endnote 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 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. (See Endnote 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 shopping. (See Endnote 23.) 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 CFC. (See Endnote 24.)

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 forums can. (See Endnote 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. (See Endnote 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). (See Endnote 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 full-committee markup and floor consideration of H.R. 992, but rejected. (See Endnote 28.)

ENDNOTES

(1) U.S. Const. Amend. V: '[N]or shall private property be taken for public use, without just compensation.'

(2) 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).

(3) Robert Meltz, The Property Rights Issue 16-19 (CRS Report No. 95-200 A, 1995).

(4) S. 605 (Sen. Dole) and S. 1954 (Sen. Hatch) of the 104th Congress, and S. 781 (Sen. Hatch) of the 105th Congress.

(5) Act of March 3, 1877, ch. 359, Section 1, 24 Stat. 505 (1887), codified at 28 U.S.C. Section 1491.

(6) Glidden Co. v. Zdanok, 370 U.S. 530, 552 (1962).

(7) 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).

(8) 28 U.S.C. Section 1346(a)(2).

(9) 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.

(10) See the House Committee on the Judiciary's report on H.R. 992: H.R. Rep. No. 105-424, at 5-6 (1997).

(11) 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 compensation suits in the same court, the frequency with which they press both claims might increase.

(12) 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).

(13) 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 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).

(14) Casman v. United States, 135 Ct. Cl. 647 (1956).

(15) 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).

(16) 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).

(17) Loveladies Harbor, Inc. v. United States, 27 F.3d 1545 (Fed. Cir. 1994) (en banc).

(18) 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).

(19) 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 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.

(20) 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.

(21) 28 U.S.C. Sections 1295(a)(2), (a)(3), respectively.

(22) H.R. 992 Section 2(a)(2); Senate-reported H.R. 1534 Section 5(c).

(23) 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. Sections 1491(a) and 1346(a)(1) (tax refund cases), 5 U.S.C. Section 8715 (life insurance claims by government employees and others), 5 U.S.C. Section 8912 (health insurance claims by government employees and others), 22 U.S.C. Section 2356 (certain patent claims), 26 U.S.C. Section 6226(e) (petition for readjustment of partnership items), and 28 U.S.C. Section 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 post-award challenges; the district courts, over pre-award challenges. Pub. Law No. 104-320 Section 12; 28 U.S.C. Section 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 Section 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).

(24) 28 U.S.C. Section 171(a).

(25) 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).

(26) 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. Section 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.

(27) 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).

(28) 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).