A federal appeals court has revived a lawsuit against the U.S. Centers for Disease Control and Prevention’s (CDC) monthslong eviction moratorium, ruling that a lower court wrongly threw out the case.
A portion of the U.S. Constitution’s Fifth Amendment, known as the takings clause, states that “nor shall private property be taken for public use, without just compensation.”
“The CDC order constitutes a compensable taking of Plaintiffs’ property and property rights without just compensation,” the owners said in their suit.
“The CDC lacked the requisite congressional authority to issue the nationwide residential eviction moratorium at the heart of this case,” Bonilla said.
The appeals court, though, said that the CDC “was acting within the normal scope of its duties” when it issued the moratorium, which halted evictions from Sept. 4, 2020, through mid-2021.
One federal statute, for instance, confers the CDC and its director the power to “to make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases ... from one state or possession into any other state or possession,” and the CDC cited that law, the Public Health Service Act (PHSA), in its order.
“On the whole, the circumstances here indicate that the CDC issued the order in a good-faith attempt to prevent interstate spread of COVID-19, based on a good-faith interpretation of its authority under the PHSA. This suffices to conclude that the CDC issued the order within the normal scope of its duties for takings-claim purposes,” U.S. Circuit Judge Sharon Prost wrote for the majority of the circuit court panel that considered the appeal.
Officials also did not contravene any explicit prohibitions from Congress in issuing the order, the majority also said, noting that members never moved to revoke the moratorium and actually approved extending it by a month.
“Just before the order was set to expire by its own terms, Congress stepped in and extended it. Thereafter, the CDC—now under a different administration—extended it several more times,” Prost said. “All the while, the government vehemently defended the order’s legality against challenges. Taken together, these acts show the order to be a sustained, comprehensive governmental effort bearing hallmarks of official governmental action. Under these circumstances, there is indeed ‘a little natural unwillingness to find lack of authority’ on the CDC’s part.
Prost was joined by U.S. Circuit Judge Kara F. Stoll.
The CDC, the U.S. Department of Justice, which represents government agencies in litigation, and a lawyer for the property owners did not return requests for comment.
The U.S. Supreme Court, in a separate case, previously found that the CDC did not have the authority to issue the pause on evictions.
“The question of statutory authority is distinct from the question of authority for takings-claim purposes. Only the former was at all implicated” in the case in which the Supreme Court ruled, Prost wrote, adding later that “we are unwilling to assume that the Supreme Court, in assessing the merits of the PHSA statutory-authority question, also implicitly decided (or even suggested) that the order was unauthorized in the takings sense.”
“In sum, the Supreme Court’s decision specifically held that the eviction moratorium was outside the agency’s normal scope of duties or any reasonable interpretation of its powers,” he wrote, adding that “a takings claim cannot lie for such unauthorized acts of a government official.”
