Case: 22-1929    Document: 80     Page: 1   Filed: 08/07/2024




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

  DARBY DEVELOPMENT COMPANY, INC., ET AL.,
             Plaintiffs-Appellants

                             v.

                    UNITED STATES,
                    Defendant-Appellee
                  ______________________

                        2022-1929
                  ______________________

     Appeal from the United States Court of Federal Claims
 in No. 1:21-cv-01621-AOB, Judge Armando O. Bonilla.
                  ______________________

                 Decided: August 7, 2024
                 ______________________

     CREIGHTON REID MAGID, Dorsey & Whitney LLP,
 Washington, DC, argued for plaintiffs-appellants. Also
 represented by SHAWN LARSEN-BRIGHT, Seattle, WA.

     NATHANAEL YALE, Commercial Litigation Branch, Civil
 Division, United States Department of Justice, Washing-
 ton, DC, argued for defendant-appellee. Also represented
 by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, LOREN
 MISHA PREHEIM.

     LELA AMES, Womble Bond Dickinson (US) LLP, Wash-
 ington, DC, for amicus curiae National Association of Home
 Builders. Also represented by JASMINE CHALASHTORI.
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 2                   DARBY DEVELOPMENT COMPANY, INC. v. US




     BRETT SHUMATE, Jones Day, Washington, DC, for ami-
 cus curiae National Association of Realtors. Also repre-
 sented by BRINTON LUCAS.

     GREGORY DOLIN, New Civil Liberties Alliance, Wash-
 ington, DC, for amicus curiae New Civil Liberties Alliance.
                  ______________________

       Before DYK, PROST, and STOLL, Circuit Judges.
     Opinion for the court filed by Circuit Judge PROST.
       Dissenting opinion filed by Circuit Judge DYK.
 PROST, Circuit Judge.
     In September 2020, the Centers for Disease Control
 and Prevention (“CDC”) responded to the COVID-19 pan-
 demic by issuing a nationwide order temporarily halting
 residential evictions. This eviction moratorium (or itera-
 tions of it) remained generally effective for nearly a year.
     Owners of residential rental properties sued the gov-
 ernment in the U.S. Court of Federal Claims, claiming that
 the CDC’s order constituted a physical taking of their prop-
 erty for public use, thus requiring just compensation under
 the Fifth Amendment’s Takings Clause. The Court of Fed-
 eral Claims dismissed their complaint for failing to state a
 claim upon which relief could be granted. Because we con-
 clude that the complaint stated a claim for a physical tak-
 ing, we reverse and remand for further proceedings.
                         BACKGROUND
                              I
    The COVID-19 pandemic prompted several legislative
 and executive responses.
    On March 27, 2020, Congress enacted the CARES Act,
 which instituted a 120-day moratorium on commencing
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 eviction proceedings for nonpayment of rent as to certain
 properties that received federal assistance or had federally
 backed loans. 

(b), 

, 493–94 (2020). That moratorium expired on July 24,
 2020.
      On August 8, 2020, the President issued Executive Or-
 der 13945, titled “Fighting the Spread of COVID-19 by
 Providing Assistance to Renters and Homeowners.”
 

 (Aug. 8, 2020). It stated: “[T]he policy
 of the United States [is] to minimize, to the greatest extent
 possible, residential evictions and foreclosures during the
 ongoing COVID-19 national emergency.” 

. It
 also directed the Secretary of Health and Human Services
 and the CDC Director to “consider whether any measures
 temporarily halting residential evictions of any tenants for
 failure to pay rent are reasonably necessary to prevent the
 further spread of COVID-19 from one State or possession
 into any other State or possession.” 

     Less than a month later, on September 4, 2020, the
 CDC issued an order titled “Temporary Halt in Residential
 Evictions [t]o Prevent the Further Spread of COVID-19.”
 

 (Sept. 4, 2020) (“Order”). The CDC rep-
 resented that it was issuing the Order under the authority
 of section 361 of the Public Health Service Act (“PHSA”) 1
 (codified as amended at 

) as well as
 

. 

 at 55292–93, 55297. The Order pro-
 vided that
     a landlord, owner of a residential property, or other
     person with a legal right to pursue eviction or pos-
     sessory action shall not evict any covered person
     from any residential property in any State or U.S.
     territory in which there are documented cases of



     1     

, 

, 703–04
 (1944).
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 4                   DARBY DEVELOPMENT COMPANY, INC. v. US




     COVID-19 that provides a level of public-health
     protections below the requirements listed in this
     Order.
 

. The Order did not relieve tenants of their
 obligation to pay rent. 

. And the government
 represents that the Order also did not prevent landlords
 from commencing eviction proceedings for nonpayment of
 rent. Appellee’s Br. 7 & n.3 (citing J.A. 42). The Order did,
 however, prevent any actual eviction for nonpayment of
 rent from occurring. See 85 Fed. Reg. at 55293 (defining
 “Evict” and “Eviction”), 55294 (preventing evictions for vi-
 olations of contractual obligations concerning “timely pay-
 ment of rent or similar housing-related payment”). 2 The
 Order was originally set to expire on December 31, 2020.
 See id. at 55297.
     On December 27, 2020—just days before the Order was
 set to expire—Congress extended it by a month, through
 January 31, 2021. Consolidated Appropriations Act, 2021,
 

div. N, sec. 502, 

,
 2078–79. In the preceding section of that same Act, Con-
 gress also appropriated $25 billion in emergency rental as-
 sistance, including for payment of rent and rental arrears.
 

 sec. 501(a)(1), 501(c)(2), 134 Stat. at 2069–73. Such


     2    The Order did not prevent evictions for certain rea-
 sons unrelated to rent, such as engaging in criminal activ-
 ity on the premises or threatening the health and safety of
 other residents. 

. The Order also prevented
 evictions only if the tenant was a “[c]overed person,” which,
 as defined, generally meant someone who supplied a sworn
 declaration attesting to economic hardship.          See 

. Neither side has suggested that this latter qual-
 ification should affect our analysis of the legal issues that
 we decide in this appeal. Therefore, and for simplicity’s
 sake, we will refer to the Order generally as having pre-
 vented evictions for nonpayment of rent.
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 payments were ultimately intended for lessors. See 

 sec. 501(c)(2)(C), 134 Stat. at 2073. Less than three
 months later, Congress appropriated an additional
 $21.55 billion in emergency rental assistance. American
 Rescue Plan Act of 2021, 

,
 

, 54–58.
     As the congressional extension of the Order lapsed, the
 CDC itself (now under a different administration) extended
 it. 

 (Feb. 3, 2021) (extending through
 March 31, 2021). It did so again a few more times, ulti-
 mately through October 3, 2021. 

 (Mar. 31, 2021) (extending through June 30, 2021); 

 (June 28, 2021) (extending through July 31,
 2021); 

 (Aug. 6, 2021) (extending
 through October 3, 2021). 3
                              II
     Rental-property owners challenged the Order almost
 as soon as it issued. One litigation—Alabama Association
 of Realtors—culminated in a Supreme Court opinion rele-
 vant here.
      In Alabama Association of Realtors, the plaintiffs con-
 tended that the Order exceeded the CDC’s statutory au-
 thority under the PHSA, thus violating the Administrative
 Procedure Act. Over the government’s opposition, the dis-
 trict court agreed with the plaintiffs and therefore vacated
 the Order. But, instead of letting the vacatur take effect
 immediately, the district court granted the government’s
 request to stay that result pending appeal.
      In August 2021, the Supreme Court vacated the dis-
 trict court’s stay, thus allowing the Order’s vacatur to take



     3    Although these extensions included some modifica-
 tions to the originally issued Order, they are immaterial to
 this opinion’s discussion.
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 6                    DARBY DEVELOPMENT COMPANY, INC. v. US




 effect. Ala. Ass’n of Realtors v. Dep’t of Health & Hum.
 Servs., 

 (2021). The merits issue of whether
 the CDC exceeded its PHSA statutory authority was not
 directly before the Court—only the stay was. But, because
 a stay’s appropriateness generally depends on whether the
 stay-seeking party has made a strong showing that it will
 likely succeed on the merits, see 

 at 761–63 (citing Nken
 v. Holder, 

 (2009)), the Court spoke to the
 merits issue in that context. And, in the Court’s view, it
 was the plaintiffs—not the stay-seeking government—who
 had a substantial likelihood of success on the merits. Id.
 at 759 (deeming the plaintiffs “virtually certain to succeed”
 on the statutory-authority issue); id. at 762–65. Further,
 when evaluating the equities of a stay, the Court observed
 that “preventing [landlords] from evicting tenants who
 breach their leases intrudes on one of the most fundamen-
 tal elements of property ownership—the right to exclude.”
 Id. at 765 (citing Loretto v. Teleprompter Manhattan CATV
 Corp., 

 (1982)).
     With the stay no longer in place, the district court’s va-
 catur of the Order took effect, and the government volun-
 tarily dismissed its appeal.
                              III
     Appellants filed this suit against the government in the
 Court of Federal Claims under the Tucker Act, 

. In their operative complaint, they claimed that the
 Order, by preventing them from evicting non-rent-paying
 tenants, constituted a physical taking of their rental prop-
 erties for public use, thus requiring just compensation un-
 der the Fifth Amendment’s Takings Clause. See J.A. 37
 ¶ 31, 38 ¶¶ 36–37 (describing the Order as having deprived
 Appellants of their “fundamental right to exclude” and hav-
 ing “effected a government-authorized physical invasion,
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 DARBY DEVELOPMENT COMPANY, INC. v. US                      7



 occupation, or appropriation of [their] private property, for
 the government itself or for third parties” (cleaned up)). 4
     The government moved under Court of Federal Claims
 Rule 12(b)(6) to dismiss Appellants’ complaint for failing to
 state a claim upon which relief could be granted. The gov-
 ernment made two primary arguments relevant here.
 First, it argued that a takings claim cannot be premised on
 government action that was unauthorized; and, in its view,
 the Supreme Court in Alabama Association of Realtors es-
 sentially confirmed that the Order was unauthorized. Sec-
 ond, it argued that, under Yee v. City of Escondido, 

 (1992), the Order could not constitute a physical taking
 because it merely regulated the landlord-tenant relation-
 ship.
     The Court of Federal Claims granted the government’s
 motion and dismissed the complaint. Darby Dev. Co. v.
 United States, 

 (2022). It agreed with the
 government’s first argument and therefore dismissed with-
 out considering the second. See 

 at 51–56. Notably, it
 rejected Appellants’ arguments that Congress, by extend-
 ing the Order for a month, had “ratified” the CDC’s asser-
 tion of legal authority for the Order (or that Congress had
 otherwise “acquiesce[d]” in that assertion).        See 

 at 54–55, 55 n.12. In addition to analyzing and rejecting
 these arguments on their merits, the court reasoned that


     4    Appellants alternatively claimed that the Order
 constituted an illegal exaction. The Court of Federal
 Claims dismissed that claim, and Appellants appealed that
 dismissal. At oral argument, however, Appellants repre-
 sented that if we reversed the dismissal of the takings
 claim (which we do), we need not reach the dismissal of the
 illegal-exaction claim.       Oral Arg. at 39:34–40:01,
 https://oralarguments.cafc.uscourts.gov/default.aspx?fl=
 22-1929_09072023.mp3. We therefore do not reach the dis-
 missal of the illegal-exaction claim.
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 8                   DARBY DEVELOPMENT COMPANY, INC. v. US




 accepting them would be inconsistent with the Supreme
 Court’s ruling in Alabama Association of Realtors. See 

 at 54–55.
     Appellants timely appealed. We have jurisdiction un-
 der 

(a)(3).
                         DISCUSSION
     We review de novo the Court of Federal Claims’
 Rule 12(b)(6) dismissal of a complaint for failure to state a
 claim. E.g., Kellogg Brown & Root Servs., Inc. v. United
 States, 

 (Fed. Cir. 2013). In doing so,
 we accept well-pleaded factual allegations as true and
 draw all reasonable inferences in the plaintiff’s favor. See
 

     The Fifth Amendment’s Takings Clause provides:
 “[N]or shall private property be taken for public use, with-
 out just compensation.” U.S. CONST. amend. V. This con-
 stitutional guarantee “was designed to bar government
 from forcing some people alone to bear public burdens
 which, in all fairness and justice, should be borne by the
 public as a whole.” Armstrong v. United States, 

 (1960) (cleaned up).
     Appellants’ position is straightforward. They claim
 that the Order, by imposing an eviction moratorium pre-
 venting them from evicting non-rent-paying tenants, con-
 stituted a physical taking of their rental properties for
 public use, thus requiring just compensation under the
 Fifth Amendment’s Takings Clause.
     The government responds with the same two argu-
 ments described above: that the Order cannot support a
 takings claim because it was unauthorized; and that, under
 Yee, it could not constitute a physical taking because it
 merely regulated the landlord-tenant relationship. We ad-
 dress each issue in turn.
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 DARBY DEVELOPMENT COMPANY, INC. v. US                     9



                              I
                              A
     “A compensable taking arises only if the government
 action in question is authorized.” Del-Rio Drilling Pro-
 grams Inc. v. United States, 

 (Fed. Cir.
 1998). Two cases in particular—Del-Rio (from this court)
 and Ramirez (from the D.C. Circuit)—explain what it
 means for a government agent’s action to be “authorized”
 in this context. See Del-Rio, 146 F.3d at 1362–63; Ramirez
 de Arellano v. Weinberger, 

, 151–53 (D.C. Cir.
 1983) (Scalia, J.). 5
      In the takings context, “authorized” is not synonymous
 with “lawful” or “done with legal authority.” That is, an
 action can be authorized for takings-claim purposes even if
 it is unlawful or done without legal authority. See, e.g.,
 Ramirez, 

 (“It is well established that the
 mere fact that a government officer has acted illegally does
 not mean he has exceeded his authority for Tucker Act pur-
 poses, even though he is not ‘authorized’ to break the
 law.”); Del-Rio, 

 (discussing “‘authorized’
 as that term is used in the law of takings,” and noting that
 “[m]erely because a government agent’s conduct is unlaw-
 ful does not mean that it is unauthorized; a government
 official may act within his authority even if his conduct is



    5     Although the en banc D.C. Circuit vacated the
 panel’s opinion and judgment in Ramirez, we have ob-
 served that “the en banc court did not disagree with the
 panel’s analysis of the authorization issue.” Del-Rio,
 

 (citing Ramirez de Arellano v. Weinberger,
 

, 1523–24 (D.C. Cir. 1984) (en banc), vacated
 on other grounds, 

 (1985)). We therefore con-
 tinue to find the Ramirez panel’s discussion of the author-
 ization issue instructive—just as we did in Del-Rio. See id.
 at 1362–63.
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 10                   DARBY DEVELOPMENT COMPANY, INC. v. US




 later determined to have been contrary to law” (emphasis
 added)). Indeed, then-Judge Scalia—writing for a panel of
 the D.C. Circuit—characterized as “extreme” the position
 that “the Tucker Act precludes recovery for acts by govern-
 ment agents beyond their statutory or constitutional au-
 thority.” Ramirez, 

. 6
     Instead of asking merely whether the action was le-
 gally authorized, the takings-law inquiry asks “whether
 the alleged invasion of property rights is chargeable to the
 government.” Del-Rio, 

 (emphasis added).
 The focus is on whether the government should be held li-
 able for its agents’ actions. See, e.g., Portsmouth Harbor
 Land & Hotel Co. v. United States, 

 (1922)
 (Holmes, J.) (considering whether the plaintiffs could “es-
 tablish authority on the part of those who did the acts to
 bind the government by taking the land” (cleaned up));
 United States v. N. Am. Transp. & Trading Co., 

 (1920) (“What [the government agent] had
 done[,] . . . having been without authority, . . . created no
 liability on the part of the government.”); Hooe v. United
 States, 

 (1910) (addressing circumstances
 under which a government agent “will not, in any legal or
 constitutional sense, represent the United States,” and



      6   We will assume in this opinion that the Order ex-
 ceeded the CDC’s statutory authority under the PHSA.
 Although Appellants correctly observe that the Supreme
 Court in Alabama Association of Realtors did not directly
 rule on that merits issue (having instead considered it only
 in the context of ruling on the stay), we find it difficult to
 ignore the Court’s clearly expressed view of that issue. So,
 while we appreciate the distinction Appellants observe, we
 will still assume that the Order exceeded the CDC’s statu-
 tory authority. Again, however, as we explain, an action
 can be “authorized” in the takings context even if it was
 done without such authority.
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 DARBY DEVELOPMENT COMPANY, INC. v. US                        11



 noting that “what he does or omits to do, without the au-
 thority of the Congress, cannot create a claim against the
 government”); see also Ramirez, 

 (roughly
 analogizing the inquiry to respondeat superior, a private-
 law doctrine concerning an employer’s liability for actions
 of its employees). 7
      Certain considerations help separate authorized ac-
 tions from unauthorized ones in the takings context. See,
 e.g., Ramirez, 724 F.2d at 151–53 (synthesizing case law).
     An action will normally be deemed authorized if it was
 done by government agents “within the general scope of
 their duties”—i.e., if it was “a natural consequence of con-
 gressionally approved measures” or “pursuant to the good
 faith implementation of a congressional act.” Del-Rio,
 

 (cleaned up); see also Ramirez, 

 (“[O]n numerous occasions when the government
 agent was acting within the ordinary scope of responsibili-
 ties conferred on him by Congress, and took private prop-
 erty without express statutory authority or prohibition, the
 Tucker Act remedy was held to lie.”).




     7    In determining when an agent’s act is attributable
 to a principal, it is not novel to define the agent’s authority
 based on its reasonable (even if ultimately mistaken) un-
 derstanding of the authority that the principal gave it. See,
 e.g., Restatement (Third) of Agency § 2.02 cmt. c (Am. Law.
 Inst. 2006) (“Actual authority is an agent’s power to affect
 the principal’s legal relations in accord with the agent’s
 reasonable understanding, at the time the agent acts, of
 the principal’s manifestations to the agent. . . . If an agent’s
 understanding is reasonable, the agent has actual authority
 to act in accordance with the understanding, although the
 principal subsequently establishes that the agent was mis-
 taken.” (emphasis added)).
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 12                   DARBY DEVELOPMENT COMPANY, INC. v. US




     Precedent bears this out. For example, in Great Falls,
 Congress had authorized the Secretary of War to take land
 embraced within a survey for purposes of constructing a
 dam. The plaintiff alleged that the Secretary took land out-
 side the survey. The Supreme Court held that even if some
 of the land taken “happen[ed] not to be covered by the sur-
 vey . . . , the United States [was] as much bound to make
 just compensation therefor as if such land[] had been actu-
 ally embraced in that survey.” Great Falls Mfg. Co. v. Gar-
 land, 

 (1888). To be sure, the Court was
 not “saying that the Secretary of War could, by any act of
 his, bind the United States to pay for land[] taken by him”
 that was unrelated to the dam’s construction. 

 (empha-
 sis added) (cleaned up). In the case before it, however,
 nothing suggested that the Secretary of War had taken
 more than was “reasonably necessary for the purposes de-
 scribed in the Act of Congress, or that he did not honestly
 and reasonably exercise the discretion with which he was
 invested.” 

 (cleaned up); see also Ramirez, 

 (discussing Great Falls).
      In Portsmouth, the plaintiffs alleged that the govern-
 ment took their land by firing guns over it from a nearby
 fort. The Court of Claims dismissed the takings claim at
 the pleadings stage. In reversing the dismissal, the Su-
 preme Court addressed the authorization issue, acknowl-
 edging that “it very well may be that the [plaintiffs] will be
 unable to establish authority on the part of those who did
 the acts to bind the government by taking the land.”
 

 (cleaned up). But, given the plaintiffs’ al-
 legations, the Court was unprepared to conclude at the
 pleadings stage that the government agents in question
 lacked that authority. After all, the Court noted, “as the
 United States built the fort and put in the guns and the
 men, there is a little natural unwillingness to find lack of
 authority to do the acts even if the possible legal conse-
 quences were unforeseen.” 

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     In Eyherabide, the plaintiffs owned property near a
 military gunnery range used for testing aerial ordnance.
 Although the military had previously been a lessee of the
 property, its lease had ended in 1947. Eyherabide v. United
 States, 

 (Ct. Cl. 1965). Sometime after
 1952, military personnel were dropping fuel tanks, shells,
 and other objects on or near the property. See 

 at 568–69. Military personnel even visited the property
 several times and warned its caretakers that they were
 trespassers and that they should leave or else be arrested.
 

. The plaintiffs brought a takings claim. Our
 predecessor court addressed the authorization issue and
 concluded that, because the government agents were act-
 ing within the “general scope of [their] duties,” their ac-
 tions were not “wholly unauthorized”—even though “they
 may have been mistaken, imprudent, or wrongful.” 

. The court added that “[n]o statute or regulation
 forbade these activities.” 

 (emphasis added).
     Finally, in Del-Rio itself, an agency responsible for is-
 suing drilling permits had denied a permit due to its mis-
 interpretation of a statute. 8 We held that, even if the
 denial had been unlawful, it was still authorized for tak-
 ings-claim purposes because “[i]t was part of [the agents’]
 job to interpret the statutes and regulations governing fed-
 eral mining leases, and there [was] no reason to suppose
 that their decision reflected anything but a good faith effort
 to apply the statutes and regulations as they understood



     8   Technically, and contrary to the government’s
 characterization, this court in Del-Rio never held that the
 agency had “mistakenly interpreted the statute.” Contra
 Appellee’s Br. 24. We instead held that whether it had
 done so was immaterial to the takings claim’s viability. See
 Del-Rio, 146 F.3d at 1363–64. Nevertheless, for the pur-
 poses of our discussion, we will assume that the agency did
 indeed misinterpret the statute.
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 14                    DARBY DEVELOPMENT COMPANY, INC. v. US




 them.” Del-Rio, 

. “In short,” we said, the
 agents “had the authority to regulate the proposed min-
 ing.” 

 (cleaned up).
     In contrast, unauthorized actions for takings-claim
 purposes tend to be “outside the normal scope of the gov-
 ernment officials’ duties” or done despite an “explicit pro-
 hibit[ion].” 9 See id.; see also Ramirez, 

 (observing that, if a taking occurs while a government
 agent “is acting within the normal scope of his duties,” it
 will typically be deemed authorized “unless Congress has
 expressed a positive intent to prevent the taking or to ex-
 clude governmental liability” (emphasis added)).
     Precedent bears this out as well. In Hooe, for example,
 a government agency was leasing a building (except for the
 basement) for $4,000 annually, yet the agency proceeded to
 occupy the basement anyway. 

. The lessors
 balked at renewing the lease for $4,000, wanting $6,000 in-
 stead (to include the basement). 

 at 327–28. Although
 Congress initially refused to increase the appropriation


      9    The Del-Rio court described each of these as a de-
 fining characteristic of actions done “ultra vires,” 

 (italics
 removed), and it contrasted ultra vires actions with those
 that are “chargeable to the government” (and thus capable
 of supporting takings liability), id. at 1362. We recognize
 that, in City of Arlington, the Supreme Court viewed “ultra
 vires” agency action more generally as anything going “be-
 yond what Congress has permitted it to do.” See City of
 Arlington v. FCC, 

, 297–98 (2013). We think
 it clear, however, that the Del-Rio court was using the term
 in a narrower sense, given that it said repeatedly that just
 because an action is unlawful does not mean it is unauthor-
 ized for takings-claim purposes. E.g., 

; see
 also Appellee’s Br. 27 (referencing “ultra vires conduct as
 that term is used in Del-Rio” (emphasis added) (some italics
 removed)).
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 above $4,000, it later appropriated $4,500. Id. at 328. In
 doing so, Congress “distinctly advised” the plaintiffs that
 this amount was all that it was authorizing for the build-
 ing’s rent. Id. at 332 (citing relevant appropriation acts
 specifying that the amount appropriated for the rent was
 intended to be “full compensation” (emphasis in original));
 see also id. at 331 (collecting background statutes generally
 prohibiting government agencies from making contracts
 for rent until an appropriation had been made). The Sec-
 retary of the Interior then reached agreement to lease the
 building (except for the basement) for $4,500, id. at 328–29,
 but the agency nonetheless continued to occupy the base-
 ment. When the lessors filed suit to recover the difference
 between what they were paid and what they believed they
 were owed (including for the continued occupation of the
 basement), the Supreme Court held that they could not re-
 cover because, under the circumstances, the government
 agents had no authority to bind the government for any-
 thing more than what Congress had appropriated for rent.
 See id. at 333–36. Notably, the Court later distinguished
 Hooe from other takings cases on the ground that it in-
 volved “specific limitation on the agent’s authority.” Lar-
 son v. Domestic & Foreign Com. Corp., 

, 701
 n.24 (1949); see Ramirez, 

 (observing as
 much); see also United States v. Buffalo Pitts Co., 

 (1914) (distinguishing Hooe because “the attempt
 to make the government liable for rent was in the face of a
 statute . . . [that] provided that no contract should be made
 for rent until an appropriation for that purpose had been
 made by Congress”). 10



     10   This court’s predecessor distinguished Hooe on a
 similar basis. See Armijo v. United States, 

 (Ct. Cl. 1981) (characterizing Hooe as holding that takings
 liability “could not be founded on the acts of officers wholly
 without authority from Congress, express or implied, the
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 16                   DARBY DEVELOPMENT COMPANY, INC. v. US




     The Supreme Court also deemed action unauthorized
 in North American Transportation. There, an army gen-
 eral had taken possession of the plaintiff’s property.
 

. Although Congress had authorized such
 an appropriation, that authority had been conferred only
 upon the Secretary of War. See 

 at 333–34. And while
 the Secretary did later authorize the appropriation, “[w]hat
 [the army general] had done before that date[,] having been
 without authority, . . . created no liability on the part of the
 government.” 

; see also Ramirez, 

 & n.9 (discussing North American Transportation and
 characterizing the army general’s action as “not compensa-
 ble under the Tucker Act since the applicable statute had
 explicitly conferred confiscation power only upon the Sec-
 retary of War”).
                            *   *   *
      To summarize: even if an action by a government agent
 is unlawful, it will likely be deemed authorized for takings-
 claim purposes if it was done within the normal scope of
 the agent’s duties—for example, if it was done “pursuant to
 the good faith implementation of a congressional act.” Del-
 Rio, 

 (cleaned up). If instead the action
 was outside the normal scope of the government agent’s du-
 ties—or, despite being within that scope, it contravened an
 explicit prohibition or other positively expressed congres-
 sional intent—it will likely be deemed unauthorized. See
 

; Ramirez, 

. The ultimate inquiry
 is whether the government agent’s action is “chargeable to
 the government.” Del-Rio, 

.




 implication being to the contrary in view of the express
 rental limit” (emphasis added)).
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 DARBY DEVELOPMENT COMPANY, INC. v. US                      17



                               B
     We now consider whether the Order was “authorized”
 in the way takings law contemplates. We conclude that it
 was. 11
     To begin, we conclude that the CDC was acting within
 the normal scope of its duties when it issued the Order.
 The CDC is a national public-health agency, and its Direc-
 tor is authorized under section 361 of the PHSA “to make
 and enforce such regulations as in [its] judgment are nec-
 essary to prevent the introduction, transmission, or spread
 of communicable diseases . . . from one State or possession
 into any other State or possession.” 

(a). 12
 The CDC issued the Order explicitly under that statutory
 authority. 85 Fed. Reg. at 55292–93, 55297. The Order
 explained why evictions would increase the risk of spread.
 

 (“In short, evictions threaten to increase the
 spread of COVID-19 as they force people to move, often into
 close quarters in new shared housing settings with friends
 or family, or congregate settings such as homeless shel-
 ters.”). And it determined that the eviction moratorium
 “constitute[d] a reasonably necessary measure . . . to pre-
 vent the further spread of COVID-19 throughout the
 United States.” 

 Plainly, when the CDC issued the Or-
 der, it was trying to “prevent the . . . spread of communica-
 ble diseases” across states—one of its core functions under
 the PHSA. See 

(a).
    Critically, we also conclude that the CDC issued the
 Order “pursuant to the good faith implementation of” the



     11   Neither side has suggested that any factual dispute
 or other reason here prevents us from resolving this issue
 as a matter of law at this stage.
     12   The PHSA named the Surgeon General when set-
 ting forth this authority, but it is undisputed that the rele-
 vant authority now lies with the CDC Director.
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 18                  DARBY DEVELOPMENT COMPANY, INC. v. US




 PHSA. See Del-Rio, 

 (cleaned up). The
 government certainly does not suggest otherwise. See Oral
 Arg. at 29:18–29. Nor could it, really. After all, the gov-
 ernment spent months in litigation defending its Order-re-
 lated interpretation of the PHSA. See, e.g., Mot. Summ. J.
 at 8, Ala. Ass’n of Realtors v. U.S. Dep’t of Health & Hum.
 Servs., No. 1:20-cv-03377 (D.D.C. Dec. 21, 2020) (“[The]
 CDC acted within its statutory and regulatory authority in
 issuing the Order. This issue is one of straightforward
 statutory analysis . . . .”), ECF No. 26. And, although the
 Supreme Court eventually rejected that interpretation, it
 was hardly an unfounded one; other courts (and three dis-
 senting Justices) deemed it meritorious. See, e.g., Ala.
 Ass’n of Realtors v. U.S. Dep’t of Health & Hum. Servs.,
 No. 21-5093, 

, at *1–2 (D.C. Cir. June 2,
 2021); see also Ala. Ass’n of Realtors, 594 U.S. at 768–70
 (Breyer, J., joined by Sotomayor and Kagan, JJ., dissent-
 ing); 

 (“At minimum, there are arguments on both
 sides.”). 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.
 See Del-Rio, 

.
     Having concluded that the CDC issued the Order
 within the normal scope of its duties, we next consider
 whether it contravened some explicit prohibition or posi-
 tively expressed congressional intent in so doing. See 

, Ramirez, 

. We conclude it did not.
 The government, for its part, does not identify any relevant
 explicit prohibition or intent—whether in the PHSA or oth-
 erwise. And the circumstances here, in addition to confirm-
 ing there was not one, further suggest that any taking
 resulting from the Order should be deemed chargeable to
 the government. For example, unlike other takings cases
 deciding the authorization issue (involving localized
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 DARBY DEVELOPMENT COMPANY, INC. v. US                       19



 interests regarding one property owner or another), here
 the Order was of vast national significance and impacted
 property owners nationwide—all in a time of national dis-
 tress. 13 It hardly escaped Congress’s attention. And yet,
 not only did this all play out under Congress’s watchful eye
 without eliciting any legislative pushback, Congress actu-
 ally extended the Order by a month. Consolidated Appro-
 priations Act, 2021 div. N, sec. 502, 134 Stat. at 2078–79
 (further describing the Order as issued “under section 361
 of the [PHSA] (42 U.S.C. [§] 264)”). While we do not dispute


     13    We note that, although Youngstown involved an is-
 sue of national significance and impact—namely, the Pres-
 ident’s seizure of most of the nation’s steel mills in response
 to a threatened labor strike—the Supreme Court in
 Youngstown did not decide the takings-claim-authorization
 issue. See Youngstown Sheet & Tube Co. v. Sawyer,
 

, 584–85 (1952). Instead, it simply acknowl-
 edged the issue when assessing whether, on prudential
 grounds, it should decline to reach the constitutional issue
 implicated by the district court’s injunction. The theory be-
 hind the prudential ground was: if the steel mills had an
 adequate remedy in takings liability, an injunction might
 have been denied on that basis without having to confront
 the constitutional issue. See 

 In assessing that pruden-
 tial ground, the Court noted only that some of its prior
 cases “cast doubt” on a plaintiff’s ability to establish tak-
 ings liability for “propert[y] unlawfully taken.” 

 at 585
 (citing Hooe and North American Transportation). It also
 reasoned that damages for the alleged taking would be “dif-
 ficult, if not incapable, of measurement.” 

 “Viewing the
 case this way, and in the light of the facts presented,” the
 Court agreed with the district court that there was “no rea-
 son for delaying decision of the constitutional validity” of
 the President’s seizure. 

 And it ultimately affirmed the
 injunction because it concluded that the President’s seizure
 was indeed unconstitutional. See 

 at 587–89.
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 20                   DARBY DEVELOPMENT COMPANY, INC. v. US




 the Court of Federal Claims’ conclusion that Congress did
 not necessarily ratify or acquiesce in the CDC’s assertion
 of legal authority for the Order, see, e.g., supra note 6, we
 do think Congress’s role respecting the Order additionally
 supports the conclusion that any taking resulting there-
 from is fairly chargeable to the government. At the very
 least, it dispels any notion that there was some explicit con-
 gressional prohibition (or something to similar effect) that
 the Order contravened. 14
     Accordingly, because the CDC issued the Order within
 the normal scope of its duties, and because it did not con-
 travene any explicit prohibition or positively expressed
 congressional intent in so doing (far from it, as just dis-
 cussed), we conclude that the Order was “authorized” for
 takings-claim purposes. See Del-Rio, 146 F.3d at 1362–63;
 Ramirez, 724 F.2d at 151–53.
     That the Order was “authorized,” or chargeable to the
 government, not only accords with doctrine; it also accords
 with common sense. The CDC issued the Order only after
 receiving a directive—from the President himself—to “con-
 sider whether any measures temporarily halting residen-
 tial evictions of any tenants for failure to pay rent are
 reasonably necessary to prevent” further interstate spread


      14  We reiterate that Congress, in a neighboring sec-
 tion of the Consolidated Appropriations Act, 2021, appro-
 priated $25 billion in emergency rental assistance
 (ultimately intended for lessors) and another $21.55 billion
 soon thereafter. See supra Background Part I. While un-
 necessary to our decision, we think this contemporaneous
 action further suggests that Congress appreciated that any
 taking resulting from the Order would be “chargeable to
 the government”—in quite a literal sense. Indeed, had the
 congressionally appropriated money made its way to oth-
 erwise-unpaid lessors, there may have been little to no un-
 compensated-taking allegations to speak of.
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 DARBY DEVELOPMENT COMPANY, INC. v. US                      21



 of COVID-19. 85 Fed. Reg. at 49936. 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. All the
 while, the government vehemently defended the Order’s le-
 gality 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.
 See Portsmouth, 

.
     Ultimately, requiring that a government agent’s action
 be “authorized” in order to support takings liability reflects
 solicitude for Congress’s “power of the purse.” See, e.g.,
 NBH Land Co. v. United States, 

 (Ct. Cl.
 1978). The basic idea is to guard against government
 agents obligating the public fisc without sufficient say-so
 from Congress. For the foregoing reasons, we do not be-
 lieve that concern is implicated by this case. Moreover, any
 such concern should be assuaged by the fact that Congress
 has already appropriated a significant sum for the purpose
 of rent or rental arrears, ultimately intended for lessors.
 See supra note 14.
                               C
                               1
     The dissent and government take a contrary view of
 the authorization issue. They insist that, because the Or-
 der exceeded the CDC’s statutory authority under the
 PHSA, it was unauthorized for takings-claim purposes—no
 further analysis needed. While they acknowledge that an
 authorized action can be unlawful in some respects, they
 say there exists a bright-line rule: if the government
 agent’s action exceeds the authority of the statute under
 which the agent was acting, it cannot be authorized in the
 takings sense. Rather, they maintain, actions of the “un-
 lawful yet authorized” sort contemplate only violations of
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 22                   DARBY DEVELOPMENT COMPANY, INC. v. US




 some other statute, or some (arguably) other miscellaneous
 type of error (for the dissent, it is a mistake of fact; for the
 government, it is a mere “procedural[]” error, or perhaps
 the way in which the action was carried out, or maybe even
 a constitutional violation, like violating the Eighth Amend-
 ment). See, e.g., Dissent 1–2; Appellee’s Br. 17, 25–27.
 This type of line-drawing is both unsupported and unper-
 suasive.
      Initially, the dissent marshals several cases that it
 says support its bright-line rule. The cases it relies on,
 however, are distinguishable—at least because in those
 cases, unlike here, the alleged taking contravened an ex-
 plicit prohibition or other positively expressed congres-
 sional intent. For example, in addition to Hooe and North
 American Transportation (discussed supra Discussion
 Part I.A), the dissent relies on this court’s predecessor’s de-
 cisions in NBH and Southern California Financial. Dis-
 sent 15–16, 24. In NBH, the alleged taking related to a
 proposed expansion of a military base—a proposal Con-
 gress had twice explicitly rejected. NBH, 

.
 In deeming the requisite authorization lacking, the court
 repeatedly stressed this latter fact. 

 (observing
 that “the only participation by Congress has been to reject
 the acquisition out of hand”); 

 (reasoning that “aware-
 ness” of potential Tucker Act liability “cannot be imputed
 to Congress when its only connection with a proposed land
 acquisition has been to reject it”).
     Likewise, in Southern California Financial, the mili-
 tary appropriated what amounted to a fee or permanent
 easement. Our predecessor court determined that, under
 the Military Construction Authorization Act, such an ap-
 propriation “would have required the specific consent of
 Congress,” which the military neither sought nor obtained.
 S. Cal. Fin. Corp. v. United States, 

, 523 & n.3
 (Ct. Cl. 1980). Central to the court’s conclusion that the
 requisite authority was lacking was the fact that the mili-
 tary had acted despite Congress’s “express demand” that
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 DARBY DEVELOPMENT COMPANY, INC. v. US                     23



 Congress first “consider and authorize a permanent or in-
 definite acquisition of this size.” 

 (emphasis
 added). Indeed, this fact “ma[de] all the difference.” Id.;
 see also 

 (“In the face of the express requirement to seek
 congressional consent in a Military Construction Authori-
 zation statute, there can be no implied authority to take a
 permanent or indefinite interest apart from that route.”
 (cleaned up)); 

 (“[A]n executive agency is not au-
 thorized to take steps resulting in a compensable taking
 where Congress has refused to authorize such a taking or
 properly expects that no such taking can occur unless spec-
 ified procedures involving Congress are followed.” (empha-
 sis added)).
     Other cases the dissent relies on are to similar effect.
 See Coast Indian Cmty. v. United States, 

,
 650–52, 650 nn.23 & 25 (Ct. Cl. 1977) (one section of the
 congressional Act appeared to authorize the alleged taking,
 but a neighboring section of the same Act “expressly
 forb[ade]” such an action without tribal consent; the al-
 leged taking “in the absence of the required consents was
 an act beyond the authority of the government agents in-
 volved” (cleaned up)); Sun Oil Co. v. United States,
 

 (Ct. Cl. 1978) (the congressional Act ap-
 peared to authorize the alleged taking, but only in “special
 national emergency or state of war situations,” which were
 not present). 15



     15 The dissent also relies on Mitchell v. United States,
 

 (1925), to support its bright-line rule. See
 Dissent 7–8, 24. We think its reliance is misplaced. In
 Mitchell, the Supreme Court primarily held that plaintiffs
 whose land was taken could not recover consequential
 damages for the resulting loss to their business. 

 at 344–45. The Court additionally reasoned that (1) there
 was no finding that the government intended to take the
 business (and that without such intent, there could be no
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 24                   DARBY DEVELOPMENT COMPANY, INC. v. US




     In each of these cases, Congress had provided some ex-
 plicit indication that the alleged taking was not authorized.
 As we have explained, those circumstances are not present
 in this case; if anything, the circumstances here are the op-
 posite. This distinction “makes all the difference.” See S.
 Cal. Fin., 

.
      The dissent also reads Del-Rio, and the principles it ar-
 ticulated, as being limited to the dissent’s bright-line rule.
 See, e.g., Dissent 18–19 (maintaining that Del-Rio recog-
 nized only that a government agent’s action, “though un-
 lawful because violative of another statute or mistaken on
 the facts,” can be authorized in the takings sense (emphasis
 added)). We disagree with the dissent’s narrow reading of
 Del-Rio. Nowhere does Del-Rio itself ascribe significance
 to such a distinction—e.g., between acts contrary to the



 takings liability); and (2) there was no finding that the gov-
 ernment even took the business. Id. at 345. Only after
 providing these additional reasons did the Court add that,
 “[m]oreover,” because the Act in question did not confer au-
 thority to take a business, there could be no takings liabil-
 ity. Id. (citing N. Am. Transp., 

). Even then,
 however, the Court interpreted language in the Act as
 demonstrating that Congress did authorize accounting for
 consequential damages from a resulting loss to a busi-
 ness—but only in cases where the property owner and the
 government reached an agreement on the sale price (as dis-
 tinct from the case before it, where the property was ac-
 quired via eminent domain). See 

 In other words, with
 Congress having granted such authority (but only in cer-
 tain instances), the case resembled North American Trans-
 portation, the sole case Mitchell cited for the takings-claim-
 authorization issue. Regardless, Mitchell’s facts and pri-
 mary holding are not implicated here—which may explain
 why the government, despite citing the case in its brief, did
 not discuss it.
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 DARBY DEVELOPMENT COMPANY, INC. v. US                      25



 statute under which the agent was acting and acts contrary
 to some other statute—let alone indicate that only the lat-
 ter (and not the former) could support takings liability.
 Nor do we think such a distinction is dispositive of whether
 the action should be deemed chargeable to the government.
 In either scenario, the agent has exceeded its authority in
 some sense. See Ramirez, 

 (no agent is “‘au-
 thorized’ to break the law”). And each type of misstep could
 well arise in the course of an agent’s carrying out what it
 fairly perceives to be its duty, based on what Congress has
 (and has not) told it. Put simply, the question of authority
 for takings-claim purposes is different from the question of
 statutory authority.
      Finer legal points aside, the implications of the dissent
 and government’s position illustrate its weakness. Taken
 to its logical conclusion, their position is that government
 agents can physically occupy private property for public
 use, resist for months the owner’s legal attempts to make
 them leave, and then, when finally made to leave, say they
 need not pay for their stay because they had no business
 being there in the first place. It would be one thing for this
 to be the result when government agents are clearly acting
 apart from Congress’s will; in such a case, requiring just
 compensation would encroach too much on Congress’s
 power of the purse. 16 But there is no sound reason for such
 a result in a case like this, where (1) the government agent,
 after receiving a directive from the President, acted in good
 faith pursuant to a good-faith understanding of its congres-
 sionally conferred authority, (2) there was no explicit con-
 gressional prohibition foreclosing that understanding
 (indeed, Congress at the time did nothing but lend support



     16  Moreover, we think that in such a case, the lack of
 legal authority that would demand ending the occupation
 would become apparent relatively quickly in any litigation
 challenging the occupation.
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 26                  DARBY DEVELOPMENT COMPANY, INC. v. US




 to that understanding), and (3) the government vehe-
 mently pressed that understanding in litigation so as to se-
 riously impede the property owners’ efforts to end the
 alleged occupation. Depriving property owners of a poten-
 tial Fifth Amendment remedy in this case would deprive
 them of any meaningful remedy at all. It would vitiate the
 Takings Clause by “forcing some people alone to bear pub-
 lic burdens which, in all fairness and justice, should be
 borne by the public as a whole.” Armstrong, 

 (cleaned up). No precedent or good sense compels such a
 result.
                              2
      The dissent and government further argue that, even
 if the CDC’s lack of PHSA authority for the Order does not
 by itself foreclose a takings claim, the CDC also was not
 acting within the normal scope of its duties when it issued
 the Order. See Dissent 25–31; see also Appellee’s Br. 27,
 35. Both rely heavily on the Supreme Court’s ruling in Al-
 abama Association of Realtors in advancing this argument.
 See, e.g., Dissent 31 (“[T]he Supreme Court’s decision spe-
 cifically held that the [Order] was outside the agency’s nor-
 mal scope of duties or any reasonable interpretation of its
 powers.”); Appellee’s Br. 27 (observing that the Court
 deemed it “virtually certain” that the CDC lacked statutory
 authority for the Order (quoting Ala. Ass’n of Realtors,
 

)).
     We are unconvinced. As we have explained, the ques-
 tion of statutory authority is distinct from the question of
 authority for takings-claim purposes. Only the former was
 at all implicated in Alabama Association of Realtors. And
 we are unwilling to assume that the Supreme Court, in as-
 sessing the merits of the PHSA statutory-authority ques-
 tion, also implicitly decided (or even suggested) that the
 Order was unauthorized in the takings sense—so as to re-
 lieve the government of a Fifth Amendment obligation to
 compensate for any taking that resulted from the Order.
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 DARBY DEVELOPMENT COMPANY, INC. v. US                    27



      The dissent nonetheless maintains that, because the
 Order was so abnormal, it could not have possibly been
 within the “normal scope” of the CDC’s duties. See Dis-
 sent 28 (“[T]he [PHSA] had been in existence for 76 years,
 but the CDC’s [Order] was unlike any previous action
 taken under the PHSA before the COVID-19 pandemic.”);
 

 at 27–30. Of course, when we say that the CDC issued
 the Order within the “normal scope” of its duties, we do not
 mean to suggest that the Order itself was normal. We read-
 ily agree it was not. But then again, neither was a bur-
 geoning pandemic on the scale of COVID-19 (certainly not
 in the 76 years of the PHSA’s existence). See, e.g., 85 Fed.
 Reg. at 55292 (observing that COVID-19 presented “a his-
 toric threat to public health” prompting “unprecedented or
 exceedingly rare [governmental] actions”). The Order’s ab-
 normality flowed naturally from the abnormal circum-
 stances the CDC was confronting—and from the CDC’s
 reasonable (if ultimately incorrect) interpretation and ap-
 plication of its PHSA authority to those circumstances. In
 this case, simply because the Order was abnormal does not
 mean that the CDC—the agency charged with issuing reg-
 ulations “as in [its] judgment” are necessary to prevent the
 interstate spread of communicable diseases, 

(a)—was acting outside the “normal scope” of its du-
 ties for takings-claim purposes when issuing it.
     Accordingly, for the foregoing reasons, we conclude
 that the Order was “authorized” in the way takings law
 contemplates.
                              II
      Having concluded that there is no “lack of authoriza-
 tion” impediment to Appellants’ takings claim, we turn
 now to whether their complaint stated a claim for a physi-
 cal taking by the government. We conclude that it did.
      The law recognizes two main categories of takings—
 physical takings and regulatory takings—each analyzed
 differently. See, e.g., Tahoe-Sierra Pres. Council, Inc. v.
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 28                  DARBY DEVELOPMENT COMPANY, INC. v. US




 Tahoe Reg’l Plan. Agency, 

, 321–23 (2002).
 Generally speaking, physical takings (which concern phys-
 ical occupation or appropriation of property) involve per se
 rules, whereas regulatory takings (which concern re-
 strictions on how a property owner uses its property) in-
 volve a flexible, multifactor balancing inquiry. See Cedar
 Point Nursery v. Hassid, 

, 147–49 (2021); Ta-
 hoe-Sierra, 535 U.S. at 321–23. Here, we consider only
 whether Appellants’ complaint stated a claim for a physical
 taking, as they have expressly disclaimed any regulatory-
 taking theory. Darby, 160 Fed. Cl. at 51 n.9; Appellants’
 Br. 13; Oral Arg. at 40:00–07.
     The parties’ dispute over whether the complaint stated
 a physical-taking claim centers largely on two Supreme
 Court cases. Appellants rely on Cedar Point, and the gov-
 ernment relies on Yee. We therefore recount these two
 cases before analyzing the physical-taking issue here.
                              A
     In Cedar Point, a state regulation granted labor organ-
 izations a right to take access to an employer’s property.
 The regulation required employers to allow union organiz-
 ers onto their property for up to three hours a day, 120 days
 a year. 594 U.S. at 143. In analyzing the regulation’s tak-
 ings implications, the Supreme Court observed that the
 “right to exclude is ‘one of the most treasured’ rights of
 property ownership.” Id. at 149 (quoting Loretto, 

). And, after canvassing its precedent, it confirmed
 that “government-authorized invasions of property . . . are
 physical takings requiring just compensation.” Id. at 152.
 The Court determined that the regulation “appropriate[d]
 a right to physically invade” the employers’ property. Id.;
 see id. at 149 (“Rather than restraining the [employers’]
 use of their own property, the regulation appropriate[d] for
 the enjoyment of third parties the owners’ right to ex-
 clude.”). It therefore constituted a per se physical taking.
 Id. at 152. And such takings are assessed “using a simple,
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 DARBY DEVELOPMENT COMPANY, INC. v. US                   29



 per se rule: The government must pay for what it takes.”
 Id. at 148 (italics removed).
      Yee involved park owners renting space to mobile-home
 owners for their mobile homes. As a practical matter, these
 “mobile” homes stayed put. So, when a mobile-home owner
 wished to move, the home would be sold in place, and the
 buyer would continue to rent the space from the park
 owner. Yee, 

. At issue were a state statute
 and a local rent-control ordinance. The statute limited the
 bases upon which a park owner could terminate a mobile-
 home owner’s tenancy—though, notably, “nonpayment of
 rent” and “the park owner’s desire to change the use of his
 land” remained permissible bases. 

 at 524 (citing 

 (West 1991)). The ordinance set rent at
 what the park owners claimed was below market. 

, 526–27. The park owners argued that their mobile-
 home-owner tenants could take advantage of the below-
 market rent they paid (and that any future tenant would
 pay) under the ordinance by selling their home at a pre-
 mium. That is, these mobile-home owners could convince
 a prospective buyer that paying extra for the home was
 worth it, because the buyer would be paying below-market
 rent. In the park owners’ view, their mobile-home-owner
 tenants could thus reap value that the park owners as-
 serted belonged to them. They claimed that this “trans-
 fer[]” to the mobile-home owners constituted a physical
 taking. See 

 at 526–27.
     The Supreme Court concluded in Yee that no physical
 taking occurred. It observed that “[t]he government effects
 a physical taking only where it requires the landowner to
 submit to the physical occupation of his land.” 

 (emphasis in original). That element of required acquies-
 cence was missing, however, because the park owners “vol-
 untarily rented their land to mobile home owners.” 

 The
 Court reasoned that “no government ha[d] required any
 physical invasion of [the park owners’] property”; rather,
 “[their] tenants were invited by [them], not forced upon
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 30                   DARBY DEVELOPMENT COMPANY, INC. v. US




 them by the government.” 

. Ultimately, the
 Court concluded that the laws at issue “merely regulate[d]
 [the park owners’] use of their land by regulating the rela-
 tionship between landlord and tenant,” 

 (emphasis in
 original), and it confirmed that “[w]hen a landowner de-
 cides to rent his land to tenants, the government may place
 ceilings on the rents the landowner can charge” without ef-
 fecting a physical taking, see 

. In so concluding,
 however, the Court was careful to note that (1) nothing
 compelled the park owners, once they had rented their
 property to tenants, to continue doing so, 

 at 527–28;
 (2) in fact, a park owner wishing to change use of its prop-
 erty could evict its tenants (albeit with six- or twelve-
 months’ notice), 

; and (3) “[a] different case would
 be presented” if a landowner were “compel[led] . . . over ob-
 jection to rent his property or to refrain in perpetuity from
 terminating a tenancy,” 

                               B
     Cedar Point’s reasoning indicates that the complaint
 stated a physical-taking claim. And, as explained below,
 we consider Yee distinguishable. We therefore conclude
 that the complaint stated a physical-taking claim.
     We begin with Cedar Point. Just as in that case—
 where, absent the regulation, the employers could have ex-
 cluded the union organizers from their property, Cedar
 Point, 594 U.S. at 155—here Appellants alleged (and there
 has been no dispute) that, absent the Order, they could
 have evicted (or “excluded” from their property) at least
 some non-rent-paying tenants, see J.A. 31 ¶ 10. And, just
 as the Cedar Point regulation resulted in government-au-
 thorized physical invasion—having “appropriate[d] for the
 enjoyment of third parties” the employers’ right to exclude,
 594 U.S. at 149—here too Appellants alleged that the Or-
 der, by removing their ability to evict non-rent-paying ten-
 ants, resulted in “government-authorized invasion,
 occupation, or appropriation” of their property, J.A. 37 ¶ 31
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 DARBY DEVELOPMENT COMPANY, INC. v. US                     31



 (cleaned up). See also Sheetz v. Cnty. of El Dorado,
 

, 274 (2024) (observing that a physical taking
 occurs if the government physically appropriates property
 “or otherwise interfere[s] with the owner’s right to exclude
 others from it” (citing Cedar Point, 594 U.S. at 149–52)).
 Moreover, even apart from these significant similarities, at
 a fundamental level, we cannot reconcile how forcing prop-
 erty owners to occasionally let union organizers on their
 property infringes their right to exclude, while forcing
 them to house non-rent-paying tenants (by removing their
 ability to evict) would not.
      Yee, meanwhile, is distinguishable and does not control
 here. Unlike here, the laws at issue in Yee expressly per-
 mitted eviction for nonpayment of rent. See 

; see also 

 at 531 n.* (noting that the ordinance
 “only limits rents”). Indeed, Yee was fundamentally a rent-
 control case. See 

 at 529–30 (observing that “[o]rdinary
 rent control often transfers wealth from landlords to ten-
 ants,” and that although a mobile-home owner’s “ability to
 sell the mobile home at a premium may make this wealth
 transfer more visible than in the ordinary case,” “the exist-
 ence of the transfer in itself d[id] not convert regulation
 into physical invasion” (emphasis in original)). The grava-
 men of the park owners’ challenge in Yee concerned an al-
 leged transfer of value that was occasioned by the rent-
 control ordinance—a theory that was “predicated on the
 unusual economic relationship” between park owners and
 mobile-home owners. See 

. The Court simply was
 not presented with something akin to what has been chal-
 lenged here: an outright prohibition on evictions for non-
 payment of rent.
    Although the government advances several Yee-based
 arguments for why Appellants’ complaint did not state a
 physical-taking claim, none is persuasive.
     First, the government seems to suggest that Yee
 broadly established that government actions implicating
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 32                   DARBY DEVELOPMENT COMPANY, INC. v. US




 the landlord-tenant relationship can never be physical tak-
 ings. See, e.g., Appellee’s Br. 17–18. We disagree. To be
 sure, Yee confirmed that states “have broad power to regu-
 late housing conditions in general and the landlord-tenant
 relationship in particular without paying compensation for
 all economic injuries that such regulation entails.”
 503 U.S. at 528–29 (quoting Loretto, 

); see
 also FCC v. Fla. Power Co., 

 (1987) (artic-
 ulating a similar principle where the FCC was regulating
 rates that utilities charged to cable companies for attach-
 ments on utility poles). But we see nothing in Yee (or any
 other binding precedent we are aware of) that immunizes—
 as a categorical matter—government action implicating
 the landlord-tenant relationship from being treated as a
 physical taking. That is particularly so given the express
 caveat in Yee that “[a] different case would be presented” if
 a landowner were “compel[led] . . . over objection to rent his
 property or to refrain in perpetuity from terminating a ten-
 ancy.” 

. 17
     Second, the government argues that here, like Yee (and
 unlike Cedar Point), Appellants’ tenants had been volun-
 tarily “invited” onto Appellants’ property—which,



      17  Florida Power provides another example of this
 type of caveat. There, the Supreme Court stated that “stat-
 utes regulating the economic relations of landlords and ten-
 ants are not per se takings.” Fla. Power, 

 (italics removed) (citing Loretto, 

). But,
 even setting aside what was (and was not) specifically con-
 templated by “economic relations,” the statement was
 hardly unqualified. Earlier in the same paragraph, the
 Court expressly noted that it was not deciding what the
 physical-taking implications “would be if the FCC in a fu-
 ture case required utilities, over objection, to enter into, re-
 new, or refrain from terminating pole attachment
 agreements.” See 

 at 251–52 n.6.
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 DARBY DEVELOPMENT COMPANY, INC. v. US                     33



 according to the government, means that there was no
 physical taking. See Appellee’s Br. 41, 46–47; see also Yee,
 

 (observing that the park owners’ “tenants
 were invited by [them], not forced upon them by the gov-
 ernment”). While we agree that this point distinguishes
 this case from Cedar Point, we are not persuaded that it
 compels a different result. If a previous voluntary invita-
 tion (by itself) controlled the analysis, that would essen-
 tially mean that all government actions implicating the
 landlord-tenant relationship are immune from being
 treated as physical takings. (After all, we can safely as-
 sume that just about every landlord-tenant relationship
 stems from a voluntary “invitation” from the landlord to
 the tenant.) And yet, as noted above, we see no reason why
 government actions implicating that relationship must be
 categorically immune from being treated as a physical tak-
 ing. At bottom, just because tenants (or other occupiers of
 property) were at one point “invited” does not mean that
 their continued, government-compelled occupation cannot,
 under any circumstances, be treated as a physical taking.
      Third, the government downplays the significance of
 Yee’s express caveat that “[a] different case would be pre-
 sented” if a landowner were “compel[led] . . . over objection
 to rent his property or to refrain in perpetuity from termi-
 nating a tenancy,” 

 (emphasis added). Spe-
 cifically, the government argues that the Order did not
 prevent evictions in perpetuity. See Appellee’s Br. 43. But
 the Supreme Court confirmed in Cedar Point that even
 temporary physical appropriations are physical takings.
 594 U.S. at 153 (“[W]e have held that a physical appropri-
 ation is a taking whether it is permanent or temporary.”).
 The mere fact that the Order did not extend “in perpetuity”
 therefore does not preclude it from having effected a phys-
 ical taking.
    In sum, the complaint states a claim sharing signifi-
 cant similarities with what was described and held in Ce-
 dar Point to constitute a physical taking. And, although
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 34                   DARBY DEVELOPMENT COMPANY, INC. v. US




 Yee was concerned with a landlord-tenant relationship, for
 the foregoing reasons, we find it distinguishable from the
 circumstances presented in this case. We therefore con-
 clude that Appellants’ complaint stated a physical-taking
 claim requiring just compensation. Our conclusion in this
 regard is only bolstered by the Supreme Court’s observa-
 tion in Alabama Association of Realtors that the Order, by
 “preventing [landlords] from evicting tenants who breach
 their leases[,] intrudes on one of the most fundamental el-
 ements of property ownership—the right to exclude.”
 594 U.S. at 765 (citing Loretto, 

).
     Before completing our discussion, however, one final
 point bears mentioning. The government envisions “strik-
 ing” implications of concluding that Appellants’ complaint
 stated a physical-taking claim. See Appellee’s Br. 43. It
 argues that, if Appellants’ claim can proceed, any law that
 prevents a property owner from immediately effecting an
 eviction will constitute a physical taking, since it will have
 “temporarily interfer[ed] with the purported ‘right to ex-
 clude.’” See 

 at 43–44.
     We take the government’s point, but its concern is ulti-
 mately misplaced. Initially, what we have here is hardly a
 run-of-the-mill law implicating the landlord-tenant rela-
 tionship. Instead, it is a highly unusual—and, so far as the
 parties have shown, unprecedented—Order that outright
 prevented evictions for nonpayment of rent. Cf. Cmty.
 Hous. Improvement Program v. City of New York, 

 (2d Cir. 2023) (“It is well settled that limitations
 on the termination of a tenancy do not effect a [physical]
 taking so long as there is a possible route to an eviction.”
 (emphasis added)), cert. denied, 

 (2023).
     Further, just because other means might have had a
 similar economic impact on Appellants—e.g., government
 action making it more onerous or time-consuming to real-
 ize an eviction—it does not follow that such means would
 give rise to a physical taking. The Supreme Court
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 DARBY DEVELOPMENT COMPANY, INC. v. US                     35



 considered a similar situation in Horne v. Department of
 Agriculture, 

 (2015). There, a federal order
 required raisin growers to give a percentage of their crop
 to the government. 

. The Court held that this
 requirement was a physical taking. 

. Although
 it acknowledged that the government could have simply
 prohibited the sale of raisins (or limited their production)
 without effecting a physical taking, the Court concluded
 that this distinction “flow[ed] naturally” from the “settled
 difference in [its] takings jurisprudence between appropri-
 ation and regulation.” 

. It explained:
     A physical taking of raisins and a regulatory limit
     on production may have the same economic impact
     on a grower. The Constitution, however, is con-
     cerned with means as well as ends. . . . As Justice
     Holmes noted, “a strong public desire to improve
     the public condition is not enough to warrant
     achieving the desire by a shorter cut than the con-
     stitutional way.”
 

 (quoting Pa. Coal Co. v. Mahon, 

 (1922)). A similar explanation suffices here. Whatever
 might be said of other means to achieving the same or a
 similar end as the Order—and to be clear, we do not pass
 on any such means—we conclude that Appellants’ com-
 plaint stated a claim that fits within the Court’s conception
 of a physical taking.
                        CONCLUSION
     We have considered the government’s remaining argu-
 ments and find them unpersuasive. For the foregoing rea-
 sons, we reverse the Court of Federal Claims’ dismissal and
 remand for further proceedings.
                REVERSED AND REMANDED
                            COSTS
 Costs to Appellants.
Case: 22-1929    Document: 80      Page: 36    Filed: 08/07/2024




    United States Court of Appeals
        for the Federal Circuit
                   ______________________

  DARBY DEVELOPMENT COMPANY, INC., ET AL.,
             Plaintiffs-Appellants

                              v.

                     UNITED STATES,
                     Defendant-Appellee
                   ______________________

                         2022-1929
                   ______________________

     Appeal from the United States Court of Federal Claims
 in No. 1:21-cv-01621-AOB, Judge Armando O. Bonilla.
                  ______________________

 DYK, Circuit Judge, dissenting.
     For well over 100 years the Supreme Court has recog-
 nized that unauthorized actions of a federal agency or fed-
 eral official cannot create takings liability. If a government
 agent exceeds the authority conferred by the statute which
 grants it the power to act, then that action is unauthorized.
 Unauthorized actions are distinct from unlawful actions.
 The pertinent difference is that a government action which
 is unlawful because it violates some other statute or misin-
 terprets the facts can still be authorized. The majority fails
 to recognize this critical distinction.
     1. Until now our court and our predecessor court have
 faithfully followed that Supreme Court authority. How-
 ever, the panel majority here, relying on a misreading of
 our decision in Del-Rio Drilling Programs, Inc. v. United
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 2                   DARBY DEVELOPMENT COMPANY, INC. v. US




 States, 

 (Fed. Cir. 1998), rejects established
 precedent and concludes that “an action can be authorized”
 even if it is “done without legal authority,” Maj. Op. 9, and
 that “the question of authority for takings-claim purposes
 is different from the question of statutory authority,” Maj.
 Op. 25. That is, an agency may be authorized if it exceeds
 the scope of the statute which empowers it to act—so long
 as the action is within the “normal scope of the government
 agent’s duties.” Maj. Op. 16. This approach is unsup-
 ported. Del-Rio held that an action may be authorized if it
 is within the normal scope of duties, even if it turns out to
 be illegal or improper for a separate reason (for example,
 violating another statute or erroneously determining the
 facts). Del-Rio does not hold that the action can be author-
 ized if it exceeds statutory authority under which the
 agency or official operates. Nor could it have done so, given
 that the Supreme Court and earlier circuit decisions have
 repeatedly held the opposite. These cases establish that
 unauthorized acts by government officials cannot be at-
 tributed to Congress, which has the sole authority to obli-
 gate government funds. See Hooe v. United States, 

 (1910).
     2. The Supreme Court cases on which the majority re-
 lies—Great Falls Manufacturing Co. v. Garland, 

 (1888) and Portsmouth Harbor Land & Hotel Co. v.
 United States, 

 (1922)—either specifically
 found authorization (Great Falls) or ordered the very in-
 quiry into authorization that the governing cases clearly
 require (Portsmouth). There is not a single Supreme Court
 case that applies the majority’s “normal scope of duties”
 standard. Whatever interpretation is given to the lan-
 guage of Del-Rio, the fact remains that not a single case
 from the Supreme Court or our court has ever imposed tak-
 ings liability where the agency acted beyond the scope of
 statutory authorization.
     3. Even if the majority’s reading of Del-Rio were cor-
 rect, the majority’s conclusion that the Centers for Disease
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 DARBY DEVELOPMENT COMPANY, INC. v. US                      3



 Control and Prevention’s (“CDC”) eviction moratorium was
 within the “normal scope” of the duties of the CDC acting
 under section 361 of the Public Health Service Act
 (“PHSA”), Maj. Op. 17, is unsupported and inconsistent
 with the Supreme Court’s decision in Alabama Association
 of Realtors v. Department of Health & Human Services, 

 (2021) (hereinafter “Alabama Realtors”). There,
 the Supreme Court held that the eviction moratorium at
 issue here was well outside the CDC’s normal scope of du-
 ties. “This claim of expansive authority under § 361(a) is
 unprecedented.” Alabama Realtors, 594 U.S. at 765. The
 Court concluded that it was “virtually certain . . . that the
 CDC has exceeded its authority” in adopting an eviction
 moratorium—“[i]t strains credulity to believe that [the
 PHSA] grants the CDC the sweeping authority that it as-
 serts.” Id. at 759–60. “Section 361(a) is a wafer-thin reed
 on which to rest such sweeping power,” id. at 765, and “it
 is a stretch to maintain that § 361(a) gives the CDC the
 authority to impose this eviction moratorium,” id. at 764.
      4. The majority’s holding here would have significant
 consequences. It would effectively make even clearly un-
 authorized agency action authorized for purposes of tak-
 ings liability unless that action was contrary to a specific
 prohibition of the authorizing statute or taken in bad faith.
 That cannot be correct. The majority’s decision would work
 a sea change in our takings jurisprudence and impose sig-
 nificant takings liability on agencies for unauthorized acts,
 directly discouraging adoption of legitimate government
 programs because of the risk of takings liability in addition
 to injunctive and declaratory relief. Historically, unau-
 thorized programs were enjoined. Now, in addition there
 is the specter of takings liability. In this case alone, the
 Supreme Court found that Congress’ “nearly $50 billion in
 emergency rental assistance” was “a reasonable proxy of
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 4                   DARBY DEVELOPMENT COMPANY, INC. v. US




 the moratorium’s economic impact.” Alabama Realtors,
 594 U.S. at 764. 1
     5. The majority contends that “[d]epriving property
 owners of a potential Fifth Amendment remedy in this case
 would deprive them of any meaningful remedy at all.” Maj.
 Op. 26. This is simply incorrect. The appellants here did
 have a meaningful remedy, which has been repeatedly rec-
 ognized by the Supreme Court and this court and led to the
 invalidation of the eviction moratorium order. “Ordinarily,
 whenever there is no authority for a taking or intrusion,
 the claimant, although unable to obtain compensation, can
 seek an injunction or a declaratory judgment against the
 unauthorized governmental activities.” S. Cal. Fin. Corp.
 v. United States, 

, 526 n.8 (Ct. Cl. 1980); see
 also Larson v. Domestic & Foreign Com. Corp., 

 (1949) (“The officer is not doing the business
 which the sovereign has empowered him to do or he is do-
 ing it in a way which the sovereign has forbidden. His ac-
 tions are ultra vires his authority and therefore may be
 made the object of [an injunction].”).
      Here, however, the plaintiffs never even bothered to
 seek an injunction. The CDC’s eviction moratorium was
 first implemented on September 4, 2020, and the plaintiffs
 could have immediately sought an injunction or declara-
 tory relief. Instead, the plaintiffs did not seek an injunc-
 tion or declaratory relief and waited nearly a year, until
 July 27, 2021, to file suit in the Court of Federal Claims
 alleging a takings claim. Plaintiffs cannot fail to seek an
 injunction or declaratory relief, wait for damages to accrue,


     1   Other sources have similarly estimated that the
 amount of back rent, utilities, and late fees owed as of Jan-
 uary 2021 would be $57 billion. Jim Parrott & Mark Zandi,
 Averting an Eviction Crisis 2 (Urb. Inst. 2021),
 https://www.urban.org/sites/default/files/publication/
 103532/averting-an-eviction-crisis.pdf.
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 DARBY DEVELOPMENT COMPANY, INC. v. US                       5



 and then contend that only a takings claim is a meaningful
 remedy.
                               I
      I now explain how fundamentally the majority has
 gone astray. The length of this dissent is testament to the
 large number of cases in the Supreme Court, our court, and
 our predecessor court that directly contradict the major-
 ity’s approach.
                              A
     The requirement that there can be no taking in the ab-
 sence of authority (and the reason for that requirement)
 has been recognized repeatedly by the Supreme Court.
 There can be no takings liability for unauthorized acts be-
 cause they are not chargeable to the United States.
     In 1910 in the seminal Hooe case, the Court explained:
     It is the Constitution which places these matters
     under the control of Congress. If an officer of the
     United States assumes, by virtue alone of his office,
     and without the authority of Congress, to take such
     matters under his control, he will not, in any legal
     or constitutional sense, represent the United
     States, and what he does or omits to do, without
     the authority of the Congress, cannot create a claim
     against the government . . . . The constitutional
     prohibition against taking private property for
     public use without just compensation is directed
     against the government, and not against individual
     or public officers proceeding without the authority
     of legislative enactment. The taking of private
     property by an officer of the United States for pub-
     lic use, without being authorized, expressly or by
     necessary implication, to do so by some act of Con-
     gress, is not the act of the government.
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 6                   DARBY DEVELOPMENT COMPANY, INC. v. US




 Hooe, 218 U.S. at 335–36 (emphasis omitted). Similarly, in
 the Regional Rail Reorganization Act Cases:
     “The taking of private property by an officer of the
     United States for public use, without being author-
     ized, expressly or by necessary implication, to do so
     by some act of Congress, is not the act of the gov-
     ernment,” and hence recovery is not available in
     the Court of Claims.
 

, 127 n.16 (1974) (quoting Hooe, 

).
     The Supreme Court decisions applying these principles
 are legion. The first mention of the authorization require-
 ment appears in United States v. Great Falls Manufactur-
 ing Co., 

 (1884). The Court found that the
 Secretary of the Interior was authorized to take the land
 because it was acquired “under the sanction of legislative
 enactments by Congress” which “appropriate[ed] [] money
 specifically for the construction of the dam.” 

 The tak-
 ing was authorized by the statute and not unlawful, but the
 failure to pay compensation was unlawful.
      In Hooe, the Court for the first time found that a lack
 of authorization defeated a takings claim. The Secretary
 of the Interior rented a building for an amount in excess of
 the amount appropriated by Congress. 

.
 The Court held that “[t]he statutes . . . make it plain that
 the Secretary was without power to make any express con-
 tract for rent in excess of the appropriation made by Con-
 gress,” and thus there was no takings liability. 

.
     In North American Transportation & Trading Co. v.
 United States, 

 (1920), a decade after
 Hooe, the Supreme Court held there was no taking when
 an Army General appropriated land as a site for an army
 post. The General took the land pursuant to a statute
 which provided:
Case: 22-1929    Document: 80      Page: 42    Filed: 08/07/2024




 DARBY DEVELOPMENT COMPANY, INC. v. US                        7



     [T]he Secretary of War may cause proceedings to
     be instituted, in the name of the United States . . .
     for the acquirement, by condemnation, of any land,
     or right pertaining thereto, needed for the site, lo-
     cation, construction, or prosecution of works for for-
     tifications and coast defenses . . . .
 Act of Aug. 18, 1890, ch. 797, 

, 316. The Su-
 preme Court construed the statute to mean that only the
 Secretary of War had that authority. N. Am. Transp., 

. Because the General exceeded the scope of
 statutory authority, his action was “without authority” for
 takings purposes. 

. The Supreme Court found
 that “although Congress may have conferred upon the Ex-
 ecutive Department power to take land for a given purpose,
 the [g]overnment will not be deemed to have so appropri-
 ated private property, merely because some officer thereaf-
 ter takes possession of it with a view to effectuating the
 general purpose of Congress.” 

.
      Two years later in Portsmouth Harbor Land & Hotel
 Co. v. United States, a taking was alleged to have occurred
 when a military base fired gun projectiles over the plain-
 tiff’s property. 

 (1922). There was a ques-
 tion of whether firing the guns was authorized, and the
 Supreme Court remanded to determine whether the ac-
 tions were authorized. 

. The Court concluded
 that “[i]t very well may be that the claimants will be unable
 to establish authority on the part of those who did the acts
 to bind the [g]overnment” and then cited North American
 Transportation, discussed earlier, making clear once again
 that statutory authorization was essential to succeed on a
 takings claim. 

      In Mitchell v. United States, 

 (1925),
 land was taken by the President for military purposes, in-
 cluding the plaintiff’s land which was alleged to be “espe-
 cially adapted to the growing of [a] particular quality of
 corn.” Because “[p]laintiffs were consequently unable to re-
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 8                    DARBY DEVELOPMENT COMPANY, INC. v. US




 establish themselves elsewhere,” they claimed a taking of
 their business. 

 The Court held there was no taking
 because, among other reasons, “the Act did not confer au-
 thority to take a business.” 

. “The Act authorized
 the taking only of ‘land and appurtenances and improve-
 ments attached thereto,’” and “it did not declare that com-
 pensation should be made for losses resulting from the
 establishment of the [military] ground.” 

 at 344 (quoting
 Act of Oct. 6, 1917, ch. 79, 

, 353). “In the ab-
 sence of authority, even an intentional taking cannot sup-
 port an action for compensation under the Tucker Act.” 

.
      In Yearsley v. W.A. Ross Constr. Co., 

 (1940), a taking was alleged when the government con-
 structed dikes which caused part of the plaintiff’s land to
 wash away. The Supreme Court held that the construction
 of the dikes was authorized, and the government would in-
 cur takings liability “if this authority to carry out the pro-
 ject was validly conferred, that is, if what was done was
 within the constitutional power of Congress.” 

 at 20–21.
      In Youngstown Sheet & Tube Co. v. Sawyer, the Court
 reasoned that Congress had not authorized the President’s
 action in seizing steel mills. An injunction was appropriate
 because of prospective irreparable injury. The injury was
 irreparable in part because a right to after-the-fact takings
 liability had not been established. “Prior cases in this
 Court have cast doubt on the right to recover in the Court
 of Claims on account of properties unlawfully taken by gov-
 ernment officials for public use.” 

 (1952)
 (first citing Hooe, 218 U.S. at 335–36; and then citing N.
 Am. Transp., 

). 2



     2   See also Larson, 

 n.24 (“[W]here a
 suit is brought against the United States, in which it is
Case: 22-1929    Document: 80      Page: 44    Filed: 08/07/2024




 DARBY DEVELOPMENT COMPANY, INC. v. US                       9



      In Malone v. Bowdoin, the plaintiff alleged that a For-
 est Service officer’s occupation of land was unauthorized
 because the plaintiff was the rightful owner of the land.
 

 (1962). The Supreme Court explained
 that a takings claim could lie because the Forest Service
 officer was authorized in occupying land; “it [had not] been
 asserted that the [officer] was exceeding his delegated pow-
 ers as an officer of the United States in occupying the land
 in question, or that he was in possession of the land in an-
 ything other than his official capacity.” 

 (footnote
 omitted).
     Similarly in the Regional Rail Reorganization Act
 Cases, the Court found takings liability because the gov-
 ernment’s actions were authorized. The government re-
 quired the transfer of the property of eight major railroads
 into a single for-profit corporation. 419 U.S. at 108–09.
 The Court noted that “‘[t]he taking of private property by
 an officer of the United States for public use, without being
 authorized, expressly or by necessary implication, to do so
 by some act of Congress, is not the act of the [g]overnment,’
 and hence recovery is not available in the Court of Claims.”
 

 at 127 n.16 (quoting Hooe, 

). However,
 the Court concluded that “[t]hese cases are inapposite since
 the [g]overnment actions at issue here are authorized by
 the Rail Act.” 

 claimed that the tortious actions of public officers, within
 the scope of their delegated powers, are the actions of the
 United States . . . Portsmouth . . . demonstrates that such
 suits cannot be defeated by arguing that the officers’ ac-
 tions, because tortious, are outside of their authority and
 hence not actions of the United States.”) (citation omitted);
 id. at 702 (government action is unauthorized when “it is
 not within the officer’s statutory powers or, if within those
 powers, only if the powers, or their exercise in the particu-
 lar case, are constitutionally void”).
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 10                   DARBY DEVELOPMENT COMPANY, INC. v. US




     Thus, the Supreme Court has repeatedly recognized
 that for a taking to lie, the government agent must have
 statutory authority. If a government agent violates or ex-
 ceeds the very statute which grants him power to act, then
 that action is unauthorized. The majority cannot distin-
 guish these cases or explain why they are not contrary to
 the approach that it adopts.
      These cases leave no room for a normal or general scope
 of duties exception to statutory authorization. They explic-
 itly require authorization, and if “the [a]ct did not confer
 authority to take . . . [it] cannot support an action for com-
 pensation under the Tucker Act.” Mitchell, 

.
                               B
     The Supreme Court cases relied on by the majority do
 not support its contention that an action beyond statutory
 authority can result in takings liability “if it was done by
 government agents ‘within the general scope of their du-
 ties.’” Maj. Op. 11 (quoting Del-Rio, 

).
     The majority points to the second Great Falls decision,
 Great Falls Manufacturing Co., v. Garland, 

 (1888), as demonstrating that “[a]n action will normally be
 deemed authorized if it was done by government agents
 ‘within the general scope of their duties.’” Maj. Op. 11
 (quoting Del-Rio, 

). Great Falls stands for
 no such proposition. Great Falls involved formal condem-
 nation proceedings—a different context than liability for
 inverse condemnation, the issue involved here. As with
 Great Falls, many condemnation cases involve arguments
 that the government was not authorized to condemn land
Case: 22-1929    Document: 80      Page: 46    Filed: 08/07/2024




 DARBY DEVELOPMENT COMPANY, INC. v. US                       11



 because it did not follow the requirements set forth in the
 condemnation statute. 3
     In Great Falls, the statute provided that:
     The Secretary of War shall cause to be made . . . a
     like survey and map of the land necessary for a
     dam . . . and when surveys and maps shall have
     been made the Secretary of War and the Attorney
     General of the United States shall proceed to ac-
     quire to and for the United States the outstanding
     title, if any, to said land and water rights . . . by
     condemnation.
 

 (first omission in original) (quoting Act of
 July 15, 1882, ch. 294, 

). The plaintiff, in seek-
 ing to restrain the United States officers from occupying its
 property, alleged that the survey required by the statute
 had not been conducted. 

.
     The government never argued that takings liability
 could not lie because the Secretary of War’s acts were un-
 authorized. Instead, the government contended that it
 complied with the statute and that the condemnation was
 authorized. Br. of Argument for Appellees at 7, Great
 Falls, 

. The Supreme Court found that the


     3    See, e.g., Nat’l R.R. Passenger Corp. v. Bos. & Me.
 Corp., 

 (1992) (analyzing whether Amtrak
 was authorized to condemn specific railroad track under a
 statute which only allowed condemnation of property “re-
 quired for intercity rail passenger service” (quoting 

(d) (1988))); Fed. Power Comm’n v. Tuscarora
 Indian Nation, 

 (1960) (evaluating if the
 licensee was authorized to condemn Indian land under a
 statute which permitted condemnation of “lands or prop-
 erty of others necessary to the construction, maintenance,
 or operation of any” licensed project (quoting 

)).
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 12                    DARBY DEVELOPMENT COMPANY, INC. v. US




 Secretary of War’s authorization was not limited by the
 survey, but extended explicitly to “said land,” that is, “the
 land necessary” for a dam. Great Falls, 

.
 “[I]f the Secretary of War . . . found it necessary to take . . .
 lands of the plaintiff for the proposed dam, which happen
 not to be covered by the survey and map,” such an act was
 nonetheless authorized. 

. The “Secretary of War
 [] was invested with large discretion in determining what
 land was actually required to accomplish in the best man-
 ner the object Congress had in view.” 

 “[T]he record
 disclose[d] nothing showing that [the Secretary of War]
 ha[d] taken more land than was reasonably necessary for
 the purposes described in the act of Congress, or that he
 did not honestly and reasonably exercise the discretion
 with which he was invested.” 

 The actions of the Secre-
 tary of War were authorized by the statute. 4
     Great Falls therefore held that the government
 properly followed condemnation proceedings, not that the




      4  See Brooks v. United States, 

 (1904) (“It is not controverted that the Secretary of the
 Navy was authorized by law to construct the vessels in con-
 troversy and to construct them in the most improved way,
 to do which he was necessarily clothed with large discre-
 tion, both as to the materials and methods to be used, as
 was the Secretary of War in the case of the Great Falls
 Manufacturing Co. v. The Attorney-General (

)
 in determining what land should be taken to carry out, in
 the best manner, the object Congress had in view by the act
 in that case, though he took lands outside the survey and
 map which the act directed to be first made showing the
 lands to be taken.”).
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 DARBY DEVELOPMENT COMPANY, INC. v. US                     13



 government was liable for a taking even though the acts
 were unauthorized. 5
     So too in Portsmouth (also relied on by the majority,
 Maj. Op. 12), the Supreme Court explicitly reaffirmed that
 a lack of authorization would defeat takings liability, see
 supra p. 7.
                              C
    The cases of this court and our predecessor court have
 never departed from the Supreme Court’s authority until
 now. 6 We have consistently held that if a government



     5   The Supreme Court also relied on an alternative
 ground. It “further said that all such objections [to the ac-
 curacy of the survey and effectiveness of the published no-
 tice] were waived by the company when, proceeding under
 the act of 1882, it invoked the jurisdiction of the Court of
 Claims to give judgment against the United States for such
 compensation as it was entitled to receive for its land and
 water rights.” Great Falls, 

. “The plaintiff,
 by adopting that mode, has assented to the taking of its
 property by the [g]overnment for public use, and has
 agreed to submit the determination of the question of com-
 pensation to the tribunal named by Congress.” 

.
     6   See, e.g., Rith Energy, Inc. v. United States, 

 (Fed. Cir. 2001) (“[A] takings claim lies, as
 long as the government’s action was authorized, even if the
 government’s action was subject to legal challenge on some
 other ground.”); Del-Rio, 

 (“A compensable
 taking arises only if the government action in question is
 authorized.”); S. Cal. Fin. Corp., 

 (“[B]efore
 a compensable taking can be found by the court, there must
 be some congressional authorization, express or implied,
 for the particular taking claimed.”); NBH Land Co. v.
 United States, 

 (Ct. Cl. 1978) (“[A] Tucker
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 14                   DARBY DEVELOPMENT COMPANY, INC. v. US




 agent exceeds its statutory authority to act, then that act
 is unauthorized and there is no takings liability. A detailed
 analysis of the cases shows that this was established long
 before Del-Rio by authority binding on and cited by the Del-
 Rio court.
      In Eyherabide v. United States, the plaintiffs owned a
 ranch surrounded by an aerial gunnery range for the U.S.
 Navy. 

 (Ct. Cl. 1965). A taking was al-
 leged to have resulted from the Navy’s gunnery practice
 and military drills. 

. There was no claim that the
 Navy was unauthorized under its own authorizing statute
 to conduct gunnery practice. Our predecessor court found
 there was a taking because “the naval personnel who
 lobbed shells, dropped casings and other objects, and flew
 over and near the property” “acted within the general scope
 of [their] duties” and “the placement of the warning signs
 was also obviously within the local authority of the gun-
 nery range.” 

. In other words, the U.S. Navy was
 authorized to conduct gunnery practice and other military
 drills. The court noted that while the actions “may have
 been mistaken, imprudent, or wrongful,” they were not
 “wholly unauthorized.” 

      In Coast Indian Community v. United States, 

 (Ct. Cl. 1977), the Bureau of Indian Affairs (“BIA”)
 was alleged to have taken tribal property when it conveyed
 “a right-of-way across [the plaintiff’s tribal] reservation” to
 a state entity. As to authority, the plaintiff “claimed that
 the BIA conveyed the right-of-way pursuant to the author-
 ity vested in the Secretary of the Interior by 

 (1970).” 

. The court found that “[s]ection 323, it
 is true, conferred broad powers on the Secretary ‘to grant
 rights-of-way for all purposes’ across Indian lands . . . [b]ut
 section 324 of the same title . . . restricted those powers by


 Act suit does not lie for an executive taking not authorized
 by Congress, expressly or by implication.”).
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 DARBY DEVELOPMENT COMPANY, INC. v. US                     15



 requiring that consents of Indian occupants be obtained in
 certain circumstances before making a conveyance pursu-
 ant to section 323.” 

 The court held that “[t]he BIA vio-
 lated the restrictions contained in the statute and
 regulations, for although it was required by them to obtain
 the consents of a majority of the adult members of the
 Coast Indian Community before conveying the right-of-
 way, it failed to do so.” 

 “In order for a taking to occur
 by virtue of the act of an agent of the [g]overnment, the
 agent’s act must be accomplished within the scope of his
 statutory or delegated authority.” 

. “The court
 must therefore conclude that the BIA’s conveyance of the
 right-of-way in the absence of the required consents was an
 act beyond the authority of the [g]overnment agents in-
 volved” and that there was no takings liability. 

.
       The next year in Sun Oil Co. v. United States, 

 (Ct. Cl. 1978), the plaintiffs, having leased oil
 properties from the United States, alleged that the govern-
 ment’s “refusal to approve their application to install [a
 platform]” for oil drilling amounted to a taking of their
 leasehold rights. The government “granted the lease on the
 authority of the Outer Continental Shelf Lands Act [“OCSL
 Act”].” 

. Our predecessor court found that “[t]he
 only language in the OCSL Act which expressly authorizes
 the Secretary to take plaintiff’s lease rights is to be found
 . . . in special national emergency or state of war situa-
 tions.” 

. “No such situations are present in this
 case.” 

 Thus, the court held “that the Secretary was
 without authority to take an OCSL Act lessee’s leasehold
 rights” and there was no takings liability. 

     In NBH Land Co. v. United States, military officers dis-
 seminated a plan to expand a military reservation onto
 nearby land, decreasing the land value. 

 (Ct. Cl. 1978). Our predecessor court held that there was
 no taking because there was no authority. 

. The
 military officers’ actions were unauthorized because “Con-
 gress ha[d] never given affirmative support or recognition
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 16                  DARBY DEVELOPMENT COMPANY, INC. v. US




 of any sort to this project,” 

, and thus the action
 was not “expressly authorized or directed by Congress . . .
 a natural consequence of Congressionally approved
 measures . . . [or a] good faith implementation of a Con-
 gressional Act,” 

.
     In Southern California Financial Corp. v. United
 States, a taking was alleged when the Air Force took an
 indefinite easement of the plaintiff’s land. 

.
 The court held that there was no taking because the taking
 of an indefinite easement was unauthorized. 

.
 The court found a “lack of authority for the Air Force, act-
 ing by itself, to take a fee or perpetual easement of the
 value involved here,” 

, because “it would be an
 invasion of the letter and spirit of the Military Construc-
 tion Program and the Military Construction Appropriation
 Acts,” 

.
     In Yuba Goldfields, Inc. v. United States, a property
 owner sold the United States land but reserved the right to
 extract metals from the land and sold that right to the
 plaintiff. 

 (Fed. Cir. 1983). A taking was
 alleged because the United States, mistakenly believing
 that the plaintiff did not own any extraction rights, advised
 the plaintiff that it must cease any mining. 

 at 885–86.
 The government defended by claiming the prohibition was
 unauthorized. 

. We held that the government’s
 prohibition of mining was authorized because the Corps
 were working on the property and regulating it pursuant
 to the “Marysville project as authorized by PL 89–789.” 

. Just because the government was mistaken as to
 ownership did not mean “all of those government officials
 were without authorization to assert what they believed
 were the rights of the United States, to announce an intent
 to enforce those rights, and to prohibit what they viewed as
 infringement of those rights.” 

     In Florida Rock Industries, Inc. v. United States, a tak-
 ing was alleged when the Army engineers denied a permit
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 DARBY DEVELOPMENT COMPANY, INC. v. US                     17



 to mine limestone. 

 (Fed. Cir. 1986). The
 Army had determined that the mining would result in pol-
 lution of federal waters. 

 “[T]he Claims Court . . . found
 as a fact that the proposed limestone mining would not pol-
 lute.” 

. We held that if indeed the mining would
 not result in pollution, “then the Army engineers had no
 statutory authority to act” and thus their denial of the per-
 mit would have been unauthorized and not a taking. 

 at
 898–99. But we ultimately held that the Claims Court’s
 determination that the mining would not pollute was error,
 and the government’s action was therefore authorized. 

.
     These cases, all decided before Del-Rio, demonstrate
 that when a government agent, by some act, exceeds the
 authority of the very statute which the government claims
 grants it authority, there is no takings liability. At the
 same time, consistent with Supreme Court authority, we
 have found takings liability when the government act rests
 on a mistaken factual assumption (e.g., property owner-
 ship) or is illegal or wrongful based on violation of some
 other statute or regulation.
     Del-Rio itself was about property ownership rather
 than the scope of legislative authorization. We held that
 the Claims Court in takings cases could determine the ex-
 tent of the claimant’s property interest and that the gov-
 ernment did not lack authority to deny the permit simply
 because the government was mistaken as to the extent of
 the plaintiff’s property rights. Del-Rio, 146 F.3d at 1364–
 65.
     The majority fundamentally misunderstands our deci-
 sion in Del-Rio, contending that “even if an action by a gov-
 ernment agent is unlawful, it will likely be deemed
 authorized for takings-claim purposes if it was done within
 the normal scope of the agent’s duties—for example, if it
 was done ‘pursuant to the good faith implementation of a
 congressional act.’” Maj. Op. 16 (quoting Del-Rio, 146 F.3d
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 18                   DARBY DEVELOPMENT COMPANY, INC. v. US




 at 1362 (cleaned up)). In Del-Rio, the plaintiff claimed that
 the United States had taken its property when the Bureau
 of Land Management (“BLM”) denied the plaintiff a permit
 to mine minerals because it lacked a right to access the
 property for drilling purposes. Del-Rio, 

.
 The plaintiff contended that it in fact had the required
 property interest. 7 Br. for Appellant at 9, Del-Rio, 

. The government urged that the plaintiff’s claim de-
 pended on the existence of an error by the BLM in the per-
 mitting process as to property ownership, which amounted
 to a claim by the plaintiff that the BLM lacked authority to
 deny the permit, and that under the cases described above
 there could be no taking. Del-Rio, 

. The
 plaintiff responded that the government action was author-
 ized because the government agents were acting pursuant
 to the “normal scope of their duties” under the authorizing


      7    The plaintiff had entered into a mineral lease with
 the government, allowing it to extract oil and gas on an In-
 dian reservation. In creating the reservation, the govern-
 ment became trustee for the Indian Tribe for the surface
 rights, but retained the mineral interest. 

.
 The lease gave the plaintiff “the right ‘to drill for, mine,
 extract, remove, and dispose of all the oil and gas deposits
 . . . in the lands leased.’” 

 By regulation “the BLM re-
 quired owners of mining leases on federal land to secure
 special permits before drilling or surveying on the land cov-
 ered by the leases,” and to demonstrate that they had ac-
 cess rights. 

 The BLM denied the plaintiff’s permit on
 the ground that the plaintiff did not have the required ac-
 cess rights, holding that those rights had to be secured
 from the tribe pursuant to the Tribal Consent Act (25
 U.S.C. §§ 323–325 (1994)). Id. at 1360–61. The plaintiff
 maintained that it already had access rights, which it con-
 tended had been retained by the government and trans-
 ferred to the plaintiff as part of the lease. See Br. for
 Appellant at 9, Del-Rio, 

.
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 DARBY DEVELOPMENT COMPANY, INC. v. US                      19



 statute in denying the permit. Br. for Appellant at 23, Del-
 Rio, 

. Determining property ownership was
 within the normal scope of the agent’s duties. We agreed
 that a government official’s actions, though unlawful be-
 cause violative of another statute or mistaken on the facts,
 may create takings liability if the action is within the “nor-
 mal scope” of that official’s duties. Del-Rio, 

 (quoting Ramirez v. Weinberger, 

 (D.C. Cir. 1983), rev’d, 

 (D.C. Cir. 1984) (en
 banc), vacated on other grounds, 

 (1985)).
      In that connection, we held that the Court of Federal
 Claims could resolve the question of property ownership in
 adjudicating the takings claim. Del-Rio, 

.
 There was no lack of regulatory authority since the BLM
 clearly had authority to engage in the permitting process.
 See 

, 226(a) (1994); Del-Rio, 

 (“It was part of [the Interior Department officials’] job
 to interpret the statutes and regulations governing federal
 mineral leases . . . .”). Nor did the government on appeal
 even argue that the permit denial was unauthorized. Quite
 the contrary, both parties argued that the action was au-
 thorized. Br. for Appellee at 6, 7, 11, Del-Rio, 

; Br. for Appellant at 6, Del-Rio, 

. An
 alleged mistake of fact as to access rights by the BLM did
 not render the government action unauthorized or prevent
 the Court of Federal Claims from considering the takings
 claim and determining whether access rights existed.
     We distinguished cases such as Florida Rock where it
 was alleged that there was a lack of statutory authority.
 We quoted approvingly Florida Rock’s statement that “[i]n
 defending, the government may deny the authority and in
 that way authority could become an issue in a Tucker Act
 taking case.” Del-Rio, 

 (quoting 

). We confirmed that “[t]he court’s focus in Florida
 Rock was thus on the issue of authorization, and the court
 properly held that a plaintiff in a Tucker Act suit cannot
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 20                   DARBY DEVELOPMENT COMPANY, INC. v. US




 obtain relief if the government officials in question were
 acting without authorization.” 

      We explained that “government agents have the requi-
 site authorization if they act within the general scope of
 their duties, i.e., if their actions are a ‘natural consequence
 of Congressionally approved measures,’ or are pursuant to
 ‘the good faith implementation of a Congressional Act.’”
 

 (first quoting NBH Land Co., 

; and then quoting S. Cal. Fin. Corp., 

).
 But, we held that an agent’s act was unauthorized if “the
 conduct was ultra vires, i.e., it was either explicitly prohib-
 ited or was outside the normal scope of the government of-
 ficials’ duties.” Id. at 1363. In Del-Rio, on no fewer than
 five occasions, we treated ultra vires action as defeating
 authority for takings purposes. 8 An agency’s ultra vires




      8    1. “The first [question] is whether the government
 conduct at issue was ‘authorized,’ i.e., whether the alleged
 invasion of property rights is chargeable to the government
 or is an act committed by a government agent acting ultra
 vires.” Del-Rio, 

.
      2. “[W]hen a government official engages in ultra vires
 conduct, the official ‘will not, in any legal or constitutional
 sense, represent the United States, and what he does or
 omits to do, without the authority of Congress, cannot cre-
 ate a claim against the Government “founded upon the
 Constitution.”’” 

 (quoting Hooe, 

).
      3. “In holding that ultra vires conduct cannot give rise
 to a Fifth Amendment taking, the courts have drawn an
 important distinction between conduct that is ‘unauthor-
 ized’ and conduct that is authorized but nonetheless unlaw-
 ful.” Id.
      4. “While this court has on occasion referred to ‘invalid’
 or ‘illegal’ government conduct as ‘unauthorized’ . . . we
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 DARBY DEVELOPMENT COMPANY, INC. v. US                      21



 actions are those taken without statutory authority. Ar-
 lington v. F.C.C., 

 (2013) (“Both [an
 agency’s] power to act and how they are to act is authorita-
 tively prescribed by Congress, so that when they act im-
 properly, no less than when they act beyond their
 jurisdiction, what they do is ultra vires.”).
      The reference to “normal scope of duties” does not sug-
 gest that statutory authorization is unnecessary but
 simply responds to the Claims Court’s holding that “[o]nly
 if the action is ‘valid,’ i.e., unassailable on some independ-
 ent constitutional, statutory, or procedural ground, should
 the Takings Clause be implicated,” Del-Rio, 

 (1997), rev’d, 

, and to make clear
 that issues of fact as to property ownership do not equate
 to a lack of authorization. 9
     The majority in Del-Rio relied on the D.C. Circuit’s va-
 cated opinion in Ramirez, another case involving a dispute
 as to property ownership. There, the Department of De-
 fense occupied land, allegedly owned by plaintiff, for use as
 a training facility for Salvadoran soldiers, apparently una-
 ware of the plaintiff’s ownership. Ramirez, 

.
 The occupation was alleged to be illegal because the


 understand those references to require a showing that the
 conduct was ultra vires . . . .” Id. at 1363.
     5. “[T]he plaintiff in a takings action cannot assert that
 the government conduct was unauthorized, since conduct
 by a government official who is acting ultra vires cannot
 effect a governmental taking for public purposes within the
 meaning of the Fifth Amendment.” Id. at 1365.
     9    “The cases cited by the government do not stand for
 the proposition that the Court of Federal Claims loses ju-
 risdiction to decide a takings claim whenever the govern-
 ment seeks to defend the agency action on the ground that
 the plaintiff lacks the property right on which its takings
 claim is based.” Del-Rio, 

.
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 22                   DARBY DEVELOPMENT COMPANY, INC. v. US




 government appropriated land belonging to the plaintiff
 without compensation. Id. at 146. The government did not
 violate the statute under which it was operating, a statute
 that granted it authority to set up military training facili-
 ties. Id. at 153. Instead, the government made a simple
 mistake as to who owned the land. The occupation of the
 land was nonetheless held to be authorized for purposes of
 takings liability. Id. The court made it clear that “the mere
 fact that a government officer has acted illegally does not
 mean he has exceeded his authority for Tucker Act pur-
 poses,” and precluding takings liability based solely on the
 government action turning out to be illegal would be “an
 extreme position.” Id. at 151. The court found authoriza-
 tion specifically because “the officials of the Defense De-
 partment in the present case were performing their
 ordinary responsibilities of deploying United States mili-
 tary forces and of planning and operating a training facility
 for the military forces of a friendly country.” Id. at 153.
 Nothing in Ramirez says a takings claim can be based on
 government acts which lack statutory authority. 10



      10  The majority also points to Ramirez as suggesting
 the relevance of agency law and to the Restatement of
 Agency for the proposition that “it is not novel to define the
 agent’s authority based on its reasonable (even if ulti-
 mately mistaken) understanding of the authority that the
 principal gave it.” Maj. Op. 11 n.7. However, Ramirez it-
 self recognizes that authority in the takings context is “not
 as liberal as[] the ‘scope of employment’ test for application
 of the doctrine of respondeat superior in private law.”
 Ramirez, 

. And, unlike the law of agency, a
 federal agency cannot acquire authority by reasonably be-
 lieving that it has such authority. Indeed, the Supreme
 Court has rejected exactly that proposition. See Loper
 Bright Enterprises v. Raimondo, 

, 2262
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 DARBY DEVELOPMENT COMPANY, INC. v. US                     23



     Our cases after Del-Rio confirm that statutory author-
 ization is required. In Rith Energy, Inc. v. United States,
 an office of the Department of the Interior (“OSM”) leased
 mining rights to the plaintiff. 

 (Fed.
 Cir. 2001). The government “suspended [the plaintiff’s]
 permit and prohibited it from mining most of the coal cov-
 ered by the mining leases.” 

 The plaintiff claimed the
 suspension of its permit was a taking. 

 The Surface
 Mining Control and Reclamation Act of 1977 “authorizes
 the Department of the Interior to prohibit mining opera-
 tions that create an imminent danger to the health and
 safety of the public or can reasonably be expected to cause
 significant, imminent environmental harm to land, air, or
 water resources.” 

 at 1358–59 (citing 

).
 We found “that if OSM had failed to act, there was a high
 probability that acid mine drainage would have occurred,
 severely polluting the Sewanee Conglomerate and endan-
 gering domestic and public water supplies.” 

.
 Thus, we held that “a takings claim lies, as long as the gov-
 ernment’s action was authorized, even if the government’s
 action was subject to legal challenge on some other
 ground.” 

      Later cases are to the same effect. In Taylor v. United
 States, 

 (Fed. Cir. 2020), we found that
 “[t]he [plaintiffs] cannot deny that the action was within
 the ‘authority’ of those who took it; such a denial would de-
 feat their taking claim.” In Lion Raisins, Inc. v. United
 States, we once again recognized that “in a takings case we
 assume that the underlying governmental action was law-
 ful [under the statute].” 

 (Fed. Cir.
 2005) (quoting Rith, 

 (Fed. Cir. 2001));
 see also Washington Federal v. United States, 26 F.4th



 (2024) (explaining that it is up to the reviewing court to
 decide “whether the statute at issue delegates particular
 discretionary authority to an agency”).
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 24                   DARBY DEVELOPMENT COMPANY, INC. v. US




 1253, 1264 (Fed. Cir. 2022). Our post-Del-Rio cases thus
 have consistently held that authority is essential to a tak-
 ings claim and takings liability cannot be founded upon a
 lack of authorization. 11
     The majority’s decision is inconsistent with cases such
 as Hooe, North American Transportation, Mitchell, South-
 ern California Financial, Coast Indian Community, Sun
 Oil Co., and NBH Land Co., where takings liability was



      11  Our nonprecedential decisions after Del-Rio have
 likewise held that authorization is required for takings li-
 ability. In Filler v. United States, the plaintiff claimed that
 an online post by a government agent, employed by the Na-
 tional Marine Fisheries Service (“NMFS”), regarding a
 medical procedure, was an authorized government act that
 resulted in a taking of the plaintiff’s medical license. 

, 519–20 (Fed. Cir. 2015) (non-precedential).
 We held there was no taking because the “NMFS does not
 have the statutory authority to regulate medical practices
 or drug safety.” 

. Because there was no statutory
 authority, there was no taking.
     In Canuto v. United States, we found no taking. 

 (Fed. Cir. 2016) (non-precedential). The
 plaintiff alleged “that on several occasions, members of the
 United States military” assaulted her and her family and
 took her property. 

. We found that “[the plaintiff]
 does not allege any facts that can plausibly be taken to
 show that the government agents, members of the military,
 were acting in an authorized manner in the conduct she
 alleges” because “[s]he has not, for instance, identified a
 law-enforcement initiative, an investigation, a military op-
 eration, or a statutory mandate that might have led gov-
 ernment agents to commit the acts she alleges.” 

.
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 DARBY DEVELOPMENT COMPANY, INC. v. US                      25



 rejected because of a lack of authorization, and inconsistent
 with cases finding takings liability only because there was
 statutory authorization for the government’s action.
     Finally, to the extent that the majority suggests that a
 directive from the President could make the CDC’s action
 authorized, see Maj. Op. 20, it is inconsistent with Supreme
 Court precedent. “In order that the [g]overnment shall be
 liable it must appear that the officer who has physically
 taken possession of the property was duly authorized so to
 do, either directly by Congress or by the official upon whom
 Congress conferred the power.” N. Am. Transp., 

. Presidential action is not a substitute for Congres-
 sional authorization. Congress “can authorize the taking
 of private property for public use” and “[t]he Constitution
 does not subject this law-making power of Congress to
 presidential . . . control.” Youngstown, 

.
 “[T]he President may not exercise the legislative power to
 authorize the seizure of private property for public use.”
 Clinton v. Jones, 

 (1997).
                               II
     The Supreme Court and circuit authority is clear. But
 let us assume for the moment that the majority, contrary
 to all authority, is correct as to the legal standard. Even if
 the majority’s statement of the law were correct, and that
 a government official’s action could be authorized if it fell
 within that official’s “normal scope of duties,” even though
 beyond the official’s authority under the statute, the CDC
 issuing an eviction moratorium cannot plausibly be said to
 be within the CDC’s normal scope of duties.
     First, the history and language of the statute (section
 361 of the PHSA) demonstrates that the primary concern
 was with quarantine and inspection and that Congress did
 not contemplate measures such as eviction moratoriums.
 Section 361, first enacted in 1944, was designed to accumu-
 late past legislative authorities. That authority was lim-
 ited.
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 26                  DARBY DEVELOPMENT COMPANY, INC. v. US




      Health regulation designed to avoid the spread of pan-
 demics began in the 17th century with local and state reg-
 ulation of vessels arriving from foreign ports. The federal
 government became involved at the end of the 18th cen-
 tury, and in 1796 Congress for the first time passed a law
 which authorized the President to assist states in quaran-
 tine measures. An Act Relative to Quarantine, ch. 31, 

 (1796) (repealed 1799). In 1878 Congress passed
 a law which empowered the Surgeon General to implement
 quarantine regulations to prevent the introduction of con-
 tagious or infectious diseases into the United States, which
 included requiring vessels to report infections onboard. Act
 of Apr. 29, 1878, ch. 66, §§ 2, 5, 20 Stat. 37–38. In 1893,
 Congress expanded federal quarantine powers by enacting
 a law which regulated how and when foreign vessels could
 unload cargo and passengers, including enabling the Sec-
 retary of the Treasury to place infected vessels in federal
 quarantine stations. Act of Feb. 15, 1893, ch. 114, § 6, 

, 452. The new law also authorized the President
 to halt immigration from specific countries which posed a
 “serious danger of the introduction of [cholera or other in-
 fectious or contagious diseases] into the United States.” 

 § 7.
     The PHSA was enacted “to bring together into a single
 and consistent enactment virtually all of the statutes relat-
 ing to the [Public Health] Service—a body of law which had
 accumulated over a century and a half.” Alanson W. Will-
 cox, The Public Health Service Act, 1944, 7 SOC. SEC. BULL.
 15, 15 (1944). 12



      12 Since its enactment in 1944, Congress has only
 substantively amended the provision once, in 2002, as part
 of the Public Health Security and Bioterrorism Prepared-
 ness and Response Act. The amendment expanded the
 Health and Human Services (“HHS”) Secretary’s authority
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 DARBY DEVELOPMENT COMPANY, INC. v. US                        27



     Section 361 of the PHSA was evidently primarily in-
 tended to allow the federal government to inspect and
 quarantine articles, animals, or individuals that were in-
 fected or diseased. The legislative history describes the
 purpose of section 361 of the PHSA only in terms of quar-
 antine and inspections. See Hearing Before a Subcomm. on
 Interstate & Foreign Commerce on H.R. 3379: A Bill to
 Codify the Laws Relating to the Public Health Service, and
 for Other Purposes, 78th Cong. 138–39 (1944) (statement
 of Mr. Wilcox).
     The text of the statute confirms this primary purpose.
 Section 361(a) provides for the adoption of “regulations . . .
 for such inspection, fumigation, disinfection, sanitation,
 pest extermination, destruction of animals or articles found
 to be so infected or contaminated as to be sources of dan-
 gerous infection to human beings.” 

(a). 13
 Section (b) provides for the limited regulation of “apprehen-
 sion, detention, or conditional release of individuals . . . for
 the purpose of preventing the introduction, transmission,
 or spread of [] communicable diseases.” 

 § 264(b). On
 its face, though the statute provides for such “other
 measures, as in [the Surgeon General’s] judgment may be



 by eliminating a provision that only allowed the Secretary
 to issue quarantine rules if they were recommended by the
 National Advisory Health Council and to allow interstate
 quarantine of individuals who were reasonably believed to
 be in the pre-communicable stage of an infectious disease
 if the disease “would be likely to cause a public health
 emergency if transmitted to other individuals.” Public
 Health Security and Bioterrorism Preparedness and Re-
 sponse Act of 2002, 

(b)(2)(B), 116
 Stat. 626–27.
      13 As the majority recognizes, the PHSA names the
 Surgeon General, but this authority has been transferred
 to the CDC. See Maj. Op. 17 n.12.
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 28                  DARBY DEVELOPMENT COMPANY, INC. v. US




 necessary” “to prevent the introduction, transmission, or
 spread of communicable diseases,” the statute is concerned
 with preventing the interstate movement of “infected or
 contaminated” articles or persons. 

 § 264(a). The CDC’s
 order is unlike any of the specific examples of permitted
 agency action in the text of the statute, the examples ref-
 erenced in the legislative history, or past practices under
 predecessor statutes. It is not an action within the CDC’s
 normal scope of duties.
     Second, the statute had been in existence for 76 years,
 but the CDC’s eviction moratorium order was unlike any
 previous action taken under the PHSA before the COVID-
 19 pandemic. “Prior to the COVID-19 pandemic, agencies
 that were delegated authority under Section 361 generally
 invoked the provision to issue regulations related to the
 quarantine and isolation of individuals believed to have
 been infected or exposed to a contagious disease, as well as
 the control or treatment of areas, animals, or articles that
 were susceptible or subject to contamination or infection.”
 WEN W. SHEN, CONGRESSIONAL RESEARCH SERVICE, SCOPE
 OF CDC AUTHORITY UNDER SECTION 361 OF THE PUBLIC
 HEALTH SERVICE ACT (PHSA) 11 (2021) (footnotes omitted).
 Specifically, “[u]ntil the COVID-19 pandemic, the CDC pri-
 marily invoked its [s]ection 361 authority to issue and re-
 fine regulations relating to quarantine and isolation.” Id.
 at 12.
     The CDC’s eviction moratorium is more like prior state
 eviction moratoriums designed to mitigate the economic ef-
 fects of a pandemic than a public health measure designed
 to prevent the spread of disease. 14 President Biden indeed


      14 Many states enacted eviction moratoriums aimed
 at addressing the economic effects of the pandemic. See,
 e.g., Baptiste v. Kennealy, 

, 376 (D.
 Mass. 2020) (“The House Speaker said, ‘We acted to
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 DARBY DEVELOPMENT COMPANY, INC. v. US                         29



 justified the CDC’s eviction moratorium in part because “it
 will probably give some additional time while we’re getting
 that $45 billion out to people who are, in fact, behind in the
 rent and don’t have the money.” The White House, Re-
 marks by President Biden on Fighting the COVID-19 Pan-
 demic (Aug. 3, 2021). Economic regulations are plainly not
 within the CDC’s normal scope of duties.
     The Supreme Court in Alabama Realtors confirmed
 that the statute “ha[d] rarely been invoked—and never be-
 fore to justify an eviction moratorium. Regulations under
 this authority have generally been limited to quarantining
 infected individuals and prohibiting the import or sale of
 animals known to transmit disease.” 594 U.S. at 761. 15 It
 is hard to understand how the majority here can conclude



 safeguard tenants and homeowners from economic insecu-
 rity during and for a period after the state of emergency
 ends.’”); Elmsford Apartment Assocs., LLC v. Cuomo, 

, 155 (S.D.N.Y. 2020) (“The New York State
 Legislature and the Governor, Defendant Andrew Cuomo,
 have worked together to respond to this evolving crisis and
 its effects on the health, safety, and economic wellbeing of
 New Yorkers.”). The CDC’s Order likewise addresses
 “housing stability” and prevents landlords from evicting
 tenants who are unable to pay their rent. Temporary Halt
 in Residential Evictions To Prevent the Further Spread of
 COVID-19, 

, 55292.
      15  Likewise, in granting summary judgment that the
 eviction moratorium exceeded the CDC’s statutory author-
 ity, the district court explained that “[i]t is also telling that
 the CDC has never used [section 361] in this manner. As
 the [CDC] confirms, [section 361] ‘has never been used to
 implement a temporary eviction moratorium,’ and ‘has
 rarely [been] utilized . . . for disease-control purposes.’” Al-
 abama Ass’n of Realtors v. United States Dep’t of Health &
 Hum. Servs., 

, 41 (D.D.C. 2021).
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 30                  DARBY DEVELOPMENT COMPANY, INC. v. US




 that the CDC’s actions were within the normal scope of the
 CDC’s duties when the CDC had never used section 361 for
 anything like an eviction moratorium before.
      Third, in defending the CDC’s Order before the Su-
 preme Court in Alabama Realtors, the government never
 characterized the order as a routine exercise of authority.
 Instead, the government explained that the Order “rested
 on the CDC’s findings that the United States faced the risk
 of an unprecedented wave of evictions” based on “an un-
 precedented public emergency.” Response in Opposition to
 Applicants’ Emergency Application to Vacate the Stay at
 16, 34, Alabama Realtors. The majority here likewise de-
 scribes the eviction moratorium as “hardly a run-of-the-
 mill law implicating the landlord-tenant relationship” and
 “[i]nstead, it is a highly unusual—and, so far as the parties
 have shown, unprecedented—Order.” Maj. Op. 34. The
 CDC’s Order was a response to an extreme event, and not
 a routine order issued within the normal scope of its duties.
      Fourth, and most significantly, the Supreme Court’s
 decision in Alabama Realtors made clear that the CDC’s
 action is far outside any reasonable construction of the
 statute. In vacating a stay of the injunction barring en-
 forcement of the eviction moratorium, the Supreme Court
 found “that the applicants are virtually certain to succeed
 on the merits of their argument that the CDC has exceeded
 its authority.” Alabama Realtors, 594 U.S. at 759. In an-
 alyzing the likelihood of success on the merits, the Su-
 preme Court did not mince its words. It held that it
 “strains credulity” that the “decades-old statute that au-
 thorizes [the CDC] to implement measures like fumigation
 and pest extermination” grants CDC the power to impose
 a nationwide eviction moratorium. Id. at 760. The Su-
 preme Court found that “it [wa]s a stretch to maintain that
 § 361(a) gives the CDC the authority to impose this eviction
 moratorium.” Id. at 764. “Indeed, the [g]overnment’s read
 of § 361(a) would give the CDC a breathtaking amount of
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 DARBY DEVELOPMENT COMPANY, INC. v. US                     31



 authority” and “[s]ection 361(a) is a wafer-thin reed on
 which to rest such sweeping power.” Id. at 764–65.
      It cannot be both that the eviction moratorium was
 within the normal scope of the CDC’s duties and that “[t]his
 claim of expansive authority under § 361(a) is unprece-
 dented.” Id. at 765. The Supreme Court explained that
 “[w]e expect Congress to speak clearly when authorizing an
 agency to exercise powers of ‘vast “economic and political
 significance.”’” Id. at 764 (quoting Util. Air Regul. Grp. v.
 EPA, 

, 324, (2014)). For the CDC to implement
 eviction moratoriums, which the Supreme Court described
 as exercising “a breathtaking amount of authority,” it
 would first need explicit Congressional authorization. 

 Such clear authorization is missing from the PHSA. 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 pow-
 ers.
     Thus, even under the majority’s expressed view of Del-
 Rio, the CDC’s eviction moratorium was not within the nor-
 mal scope of its duties under the PHSA and thus the CDC’s
 action was unauthorized. A takings claim cannot lie for
 such unauthorized acts of a government official.
     As discussed earlier, the majority’s mistake will have
 significant consequences for future cases. It will impose
 potential takings liability on agencies for virtually any act
 that is not contrary to a specific statutory prohibition or
 taken in bad faith. The increased risk of takings liability
 will deter government programs, and the government in
 this case alone has potential liability upwards of $50 bil-
 lion. This major change to our takings jurisprudence is
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 32                  DARBY DEVELOPMENT COMPANY, INC. v. US




 without support and cannot be correct. I respectfully dis-
 sent. 16




      16Since the takings claim must be rejected for lack of
 authority, I do not reach the physical takings issue.