112 F.4th 1017
Fed. Cir.2024Background
- In response to COVID-19, the CDC issued a nationwide eviction-moratorium Order on Sept. 4, 2020 that prevented evictions for nonpayment of rent (while leaving rent obligations intact).
- Congress briefly extended the Order by statute at the end of 2020 and appropriated large sums of emergency rental assistance; the CDC and later administrations extended the Order further into 2021.
- Rental-property owners sued in the Court of Federal Claims under the Tucker Act, alleging the Order effected a physical taking of their property by depriving them of the right to exclude and to evict.
- The Court of Federal Claims dismissed the complaint under Rule 12(b)(6), concluding the Order was unauthorized (relying on the Supreme Court’s treatment of the CDC Order in Alabama Ass’n of Realtors) and thus could not support takings liability.
- The Federal Circuit reversed, holding (1) the Order was “authorized” for takings-law purposes (even assuming the CDC exceeded its statutory authority), and (2) the complaint plausibly alleged a per se physical taking (distinguishing Yee and relying on Cedar Point and related precedent). The case was remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the CDC action was “authorized” such that takings liability can attach | The Order was a government action chargeable to the United States—issued by CDC in its core public‑health role and defended/extended by the political branches—so it is authorized for takings purposes | The Order exceeded CDC’s PHSA authority (as the Supreme Court indicated) and therefore was unauthorized; unauthorized agency acts cannot give rise to takings liability | Majority: Action was authorized for takings purposes because CDC acted within the normal scope of its duties in good faith and no explicit congressional prohibition barred the measure; Congress’s extensions/appropriations reinforce that result; dissent disagrees (unauthorized) |
| Whether the complaint pleaded a compensable physical taking | The moratorium removed appellants’ ability to exclude nonpaying tenants (forced occupation), which per Cedar Point and Loretto is a per se physical taking requiring just compensation | The Order merely regulated the landlord‑tenant relationship (Yee): tenants were initially invited, evictions were not forbidden forever, and the case is essentially rent/landlord regulation not a physical appropriation | Majority: Complaint states a plausible per se physical‑taking claim—Cedar Point controls and Yee is distinguishable because this Order barred evictions for nonpayment and thus authorized continued physical occupation; temporary appropriations can be takings |
Key Cases Cited
- Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021) (per se physical taking where government authorizes third‑party access that appropriates owner’s right to exclude)
- Yee v. City of Escondido, 503 U.S. 519 (1992) (landlord‑tenant regulation not a physical taking where landlord voluntarily rented and eviction for nonpayment remained available)
- Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (right to exclude is fundamental; permanent physical occupations are per se takings)
- Alabama Ass’n of Realtors v. Dep’t of Health & Human Servs., 594 U.S. 758 (2021) (Supreme Court concluded the CDC likely exceeded its PHSA authority and vacated stay of district‑court vacatur of the Order)
- Del‑Rio Drilling Programs, Inc. v. United States, 146 F.3d 1358 (Fed. Cir. 1998) (distinguishes unauthorized acts from unlawful acts; governmental acts within the normal scope of duties and in good faith implementation of congressionally conferred powers are chargeable to the government for takings purposes)
- Ramirez de Arellano v. Weinberger, 724 F.2d 143 (D.C. Cir. 1983) (agent‑action authorization inquiry; even illegal acts can be chargeable when within ordinary scope of duties)
- Hooe v. United States, 218 U.S. 322 (1910) (acts done without Congressional authority are not acts of the government and do not give rise to takings liability)
- Great Falls Mfg. Co. v. Garland, 124 U.S. 581 (1888) (officials acting within broad statutory discretion can create compensable takings even if some procedural detail is imperfect)
- Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327 (1922) (remanded to determine whether military firing over land was authorized; authorization is a threshold for takings liability)
- Horne v. Dep’t of Agriculture, 576 U.S. 350 (2015) (distinguishes appropriation from regulation; method of taking matters for Takings Clause analysis)