Wednesday, at Darby Development Corporation v. United Statesthe U.S. Court of Appeals for the Federal Circuit, which reviews takings claims against the federal government, ruled that takings lawsuits can be brought against the 2020-21 federal eviction moratorium. In doing so, it reversed the Court of Claims’ trial court ruling, a decision I have criticized here . It could end up setting an important precedent.
In September 2020, amid the coronavirus pandemic, the Trump administration’s Centers for Disease Control (CDC) implemented a nationwide eviction moratorium, claiming it would reduce the spread of the disease. The Biden administration has extended the moratorium multiple times. In August 2021, the Supreme Court invalidated the eviction moratorium because the CDC lacked the appropriate legal authority to enforce it. But at the same time, many landlords suffered financial losses because they were unable to evict tenants for non-payment of rent.
Some property owners have sued, arguing that the eviction moratorium violates the Takings Clause of the Fifth Amendment, which requires the government to pay “just compensation” when taking private property. As I explained at the time, their position was supported by a 2021 Supreme Court ruling Cedar Point Nursery v. Hassidwhich holds that even temporary physical occupation of property qualifies as expropriation “per se” (automatically) requiring compensation.
In May 2022, the U.S. Court of Claims dismissed a lawsuit against the CDC’s moratorium on levies, arguing that there was no levy because the CDC’s eviction moratorium was never properly “authorized.” In other words, the government can escape responsibility just because its actions are illegal! A recent decision by the Federal Circuit overturned that ruling.
As Justice Sharon Prost wrote in her majority opinion for the court, an unlawful seizure of property may still be considered “authorized” if it is “responsible to the government”:
An action is generally deemed to be considered if it is carried out by a government agency “within the general scope of its duties,” that is, if it is the “natural consequence of a measure approved by Congress” or “carried out in good faith pursuant to an act of Congress.” for authorization”. del rio146 F.3d at 1362 (cleared); See also Ramirez724 F.2d at 152 (“[O]In many cases, Tucker Act remedies are deemed to lie when a government agent acts within the normal scope of his duties assigned to him by Congress and takes private property without clear legal authority or prohibition. )…
In summary: even if a government agent acts illegally, if the act is done within the normal scope of the agent’s duties, for example, if the act is done “in good faith,” it is likely to be considered Implementation of an act of Congress authorizing the purposes of the claim has been obtained. del rio146 F.3d at 1362 (cleared). Rather, the action may be deemed unauthorized if it is outside the normal scope of a government agent’s duties or, although within that scope, it violates an express prohibition or other affirmatively expressed congressional intent. View ID. 1363; ramirez, 724 F.2d at 151. Delrayo, 146 F.3d, 1362.
The majority opinion, along with Justice Dyck’s dissenting opinion, engaged in a lengthy and detailed debate as to whether the approach described above was the best interpretation of relevant Supreme Court and Federal Circuit precedent. I will not attempt to assess this debate here.
To me, the decisive factor should be that the Takings Clause does not provide that only lawful government actions or actions specifically authorized by law require compensation. Instead, the clause imposes a general rule that compensation must be paid whenever the government uses private property for “public purposes.” Of course, this could happen even without appropriate legislative authority. I can understand if rogue low-level officials seize property without any valid reason and still refuse to take responsibility. But that’s not what’s happening here. As most people explain it:
Leaving aside the finer legal issues, the impact of the dissent and the government’s stance reveal its weaknesses. Taken to its logical conclusion, their position is that a government agency can physically occupy private property for public use and resist the owner’s legitimate attempts for months
They leave, and then, when finally forced to leave, they say they don’t have to pay for accommodation because they don’t have to be there in the first place. It is one thing for such an outcome to arise when a government agency clearly acts against the will of Congress; in such cases, requiring just compensation would be an undue infringement of Congress’ fiscal authority…but in such cases, there is no good reason to results where (1) the President acting in good faith upon receipt of instructions from the Government based on a good faith understanding of the powers delegated by Congress, (2) there is no express congressional prohibition precluding such understanding…and (3) ) The government pressed this understanding strongly in its lawsuit in order to severely impede the property owners’ efforts to end the alleged occupation. In this case, depriving property owners of their potential Fifth Amendment remedies would deprive them of any meaningful remedy.
I think this is obviously correct. The CDC acted at the behest of two U.S. presidents of different parties. The federal government waged a months-long legal battle to prove that the policy was in fact properly authorized by legislation. They can’t turn around now and claim they don’t owe expropriation compensation because they ultimately lost that battle. I elaborate on this in more detail here.
Judge Dyke worried that majority rule would hold the government accountable in too many situations:
A majority stake here would have significant consequences. It can even effectively authorize unauthorized agency action to impose liability unless the action violates a specific prohibition of the authorizing statute or is taken in bad faith.
This can’t be right. The majority’s decision would radically alter our takings jurisprudence and impose significant takings liability for unauthorized conduct, directly hindering the adoption of legitimate government programs because of the risk of liability in addition to injunctive and declaratory relief. Historically, unauthorized programs were prohibited. Now, there are also concerns about liability.
I think the “ghost of responsibility” is a feature, not a bug. If the government regularly seizes property illegally, then they should bear “significant seizure liability” for doing so. This may help deter such misconduct, or at least compensate the victims, if not all. If such misconduct was relatively rare, then we wouldn’t have to worry about the ruling having “significant consequences.” If the government’s plans were indeed “legal,” then liability for “unauthorized acts” would be less of a concern, since legal plans would not contain many, if any, of these types of unauthorized access. .
The majority and dissent also disputed whether the CDC acted within the scope of its “normal duties” in issuing the eviction moratorium, a factor relevant to determining whether an eviction was “authorized” under prior precedent. The dissent is correct that the eviction moratorium is broader than previous policy adopted under the regulations the government claims to authorize. But most people had a pretty firm response:
[W]When we say that the CDC issued the order within the “normal scope” of its responsibilities, we do not mean that the order itself is normal. We readily agree that this is not the case. But then again, neither pandemic spread as quickly as COVID-19. The order’s anomalies naturally stem from the unusual circumstances faced by CDC, and CDC’s reasonable (if ultimately incorrect) interpretation and application of its PHSA authority to those circumstances. In this case, just because the order is unusual doesn’t mean the CDC, the agency responsible for issuing regulations, “as in [its] 42 USC § 264(a) – In issuing this judgment, he acted outside the “normal scope” of his duties for the purpose of pursuing the claim.
There’s a complicated situation here, with evidence that the Trump and Biden administrations enacted and extended pauses largely for political reasons rather than because they truly believed it would curb the spread of the disease. still, The fact that there is a legitimate public health justification for the measure (public health is the CDC’s primary area of responsibility) still makes it “normal” enough to qualify as authorized but illegal. A wide range of measures, including many with dubious legal basis, are common during the coronavirus pandemic.
Finally, the majority also concluded—correctly, in my opinion—that the eviction moratorium constituted a “physical taking” under the law. cedar point. They correctly rejected the argument that the moratorium merely regulates the landlord-tenant relationship and should not be considered a taking under current Supreme Court precedent. Rent control, ruling not absorption Iraq v. Escondido (1992), this is different from the situation where the government forces a landlord to accept a tenant occupying her land, otherwise she has the right to remove them:
[T]The government believes that here, e.g. yes…the appellant’s tenants were voluntarily “invited” onto the appellant’s property—which, according to the government, meant without actual occupation… See… Yi503 US at 528 (observing that the park owner’s “tenants were invited to [them]rather than the government forcing them”). While we agree that this case would be cedar pointwe do not believe it would have produced different results. If previous voluntary invitations (per se) control the analysis, this essentially means all Government actions involving landlord-tenant relationships are not considered takings in kind. (After all, we can safely assume that almost every landlord-tenant relationship begins with a voluntary “invitation” from the landlord to the tenant.) However,… we see no reason why government action involving such a relationship must be absolutely exempt from Influence.
Ultimately, just because a tenant (or other property occupier) was “invited” at one time or another, does not mean that their continued occupancy under government enforcement cannot in any event be considered a physical occupancy…
In other words, any “invitation” expires when the landlord has the legal right to evict the tenant. At that point, a voluntary landlord-tenant relationship no longer exists; if the government forces an owner to continue housing tenants on his land, we impose physical occupation of the property, which is considered a for himself Take.
The case could ultimately be reviewed by the Federal Circuit or even the Supreme Court. But if not (or if the full court or the Supreme Court upholds this ruling), it will set an important precedent on the nature of levy “authorizations” and moratoriums on evictions.
The question of whether the eviction moratorium qualifies as a taking is also litigated in state courts, but state courts have mostly ruled that it does not. I criticized such a decision here.
Robert Thomas of the Pacific Legal Foundation has more insight into yesterday’s Federal Circuit ruling.
