Whether an administrative agency's unauthorized regulatory action that exceeds its statutory authority can constitute a compensable taking under the Fifth Amendment's Takings Clause

No question identified. : 1. a. This case arises from regulatory actions by the Centers for Disease Control (CDC) that directed, and then extended, a temporary pause on residential evictions during the COVID-19 pandemic. In one of the cases directly challenging that eviction moratorium, the district court determined that the CDC lacked statutory authority to impose the moratorium and vacated the CDC’s order. Alabama Ass’n of Realtors v. United States Dep’t of Health & Human Servs., 539 F. Supp. 3d 29, 36-43 (D.D.C. 2021). The district court, however, stayed its own order pending appeal, 539 Supp. 3d 211, 218 (2021), and the D.C. Circuit denied plaintiffs’ request to vacate that stay. This Court likewise denied plaintiffs’ application to vacate the stay, but noted that four Justices would have granted relief. Alabama Ass’n of Realtors v. Department of Health & Human Servs., 141 S. Ct. 2320 (2021). Justice Kavanaugh concurred in the denial. Although he agreed that the CDC had “exceeded its existing statutory authority by issuing a nationwide eviction moratorium,” he believed that emergency relief was unwarranted “[b]ecause the CDC plans to end the moratorium in only a few weeks.” Id. at 2320-2321. He observed that “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium” beyond its expiration date. Id. at 2321. Shortly after the CDC’s eviction moratorium expired, CDC issued another order further extending the moratorium by two months to October 3, 2021, while slightly narrowing its geographic scope. 86 Fed. Reg. 43,244 (Aug. 3, 2021). After the lower courts again declined to vacate the district court’s stay pending appeal, this Court vacated the stay. Alabama Ass’n of Realtors v. Department of Health & Human Servs., 594 U.S. 758 (2021) (per curiam). The Court concluded that it was “clear that the applicants are virtually certain to succeed on the merits of their argument that the CDC has exceeded its authority.” 594 U.S. at 759. The Court observed that “the CDC has imposed a nationwide moratorium on evictions in reliance on a decades-old statute that authorizes it to implement measures like fumigation and pest extermination,” adding that “[i]t strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts.” Id. at 760. The Court further observed that “[t]he applicants not only have a substantial likelihood of success on the merits -it is difficult to imagine them losing.” Id. at 763. The Court concluded that “[i]f a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.” Id. at 766. 2. Meanwhile, in July 2021, respondents filed this damages action in the Court of Federal Claims (CFC) under the Tucker Act, 28 U.S.C. 1491(a) (1), alleging that the CDC’s eviction moratorium was a taking of private property for public use without just compensation. The CFC dismissed the action for failure to state a claim, reasoning that no takings claim exists for government action that is not authorized by statute and that the CDC’s relevant action was “ultra vires” because the agency lacked statutory authority for the moratorium. 160 Fed. Cl. 45, 51-53 (2022). a. A divided panel of the Federal Circuit reversed. App., infra, la-37a. The majority acknowledged that “[a] compensable taking arises only if the government action in question is authorized,” id. at 7a-lla (citation omitted), and it assumed that the moratorium had “exceeded the CDC’s statutory authority,” id. at 7a n.6. But the majority determined that the CDC’s actions were “authorized” in the relevant sense, id. at lla-l6oa, stating that “an action can be authorized for takings-claim purposes even if it is unlawful or done without legal authority.” Id. at 7a; see id. at lla. The majority further determined that respondents had sufficiently alleged an actual physical taking, rejecting the government’s view that the moratorium was at best a re