NAR recently filed an amicus brief to the U.S. Court of Appeals for the Federal Circuit in support of the National Apartment Associations’ lawsuit alleging that the Center for Disease Control’s (CDC) nationwide COVID-19 eviction moratorium constituted a physical taking under the Fifth Amendment.
The CDC’s eviction moratorium was in effect from September 2020, until it was effectively struck down by the Supreme Court in August 2021, in response to litigation filed by the Alabama and Georgia Associations of REALTORS®, which was supported by NAR. In May 2022, the U.S. Court of Federal Claims dismissed Plaintiffs’ complaint, reasoning there was no viable takings claim against the U.S. because the CDC had acted outside of its scope of authority when issuing the moratorium. In response, the Plaintiffs filed a notice of appeal in the U.S. Court of Appeals for the Federal Circuit in June.
NAR argued that because the moratorium took away housing providers’ right to exclude, the CDC effected a per se physical taking requiring just compensation under the Takings Clause. Further, NAR argued how the federal claims court’s dismissal of the case was based on a misapplication of the Tucker Act, which governs takings claims, in holding that the eviction moratorium “was unauthorized” under administrative law and therefore damages were not compensable. However, the CDC’s actions were undeniably the action of the federal government under the Tucker Act and therefore plaintiffs are eligible for relief. As a result, the claims court decision should be reversed.