[00:00:00] Speaker 04:
Our next case this morning is number 22, 1929, Darby Development Company, Inc.

[00:00:06] Speaker 04:
versus United States.

[00:00:09] Speaker 04:
Mr. Magid?

[00:00:10] Speaker 03:
May it please the court.

[00:00:13] Speaker 03:
Appellants here are owners of residential properties.

[00:00:17] Speaker 03:
Often mom and pop operations, they have to invest heavily in maintenance of the properties.

[00:00:22] Speaker 03:
They have to pay taxes.

[00:00:23] Speaker 03:
They have to pay utilities, perhaps debt service.

[00:00:27] Speaker 03:
they incur substantial expenses.

[00:00:29] Speaker 03:
At the onset of the COVID-19 crisis, undeniably a serious health emergency, the CDC issued an order preventing these owners from evicting persons who were former tenants but are no longer tenants.

[00:00:48] Speaker 01:
Can I ask you a question about just the history of this?

[00:00:51] Speaker 01:
This may not be germane to some of the substantive legal issues, but

[00:00:55] Speaker 01:
When all of this happened, money was authorized and appropriated.

[00:01:01] Speaker 01:
I think we're up to almost $50 billion for this purpose.

[00:01:05] Speaker 01:
So at the time, and even what your friends, the amicus quote, President Biden is saying, like, well, let's just get this money out.

[00:01:15] Speaker 01:
What happened to the money?

[00:01:16] Speaker 01:
Because it seems like Congress, whatever Congress contemplated and the executive branch contemplated, it was, we're going to keep these renters in their homes and we're going to provide them money so that they can cover their rental expenses.

[00:01:32] Speaker 01:
That would have avoided the taking because your clients would have been compensated.

[00:01:37] Speaker 01:
What happened to the money?

[00:01:38] Speaker 03:
That's a great question, Your Honor, and I wish I had an answer for you.

[00:01:41] Speaker 03:
I think in some cases,

[00:01:43] Speaker 03:
some of that money may have gone to some apartment owners, in which case we would have a damages issue to the extent that any of it went there.

[00:01:51] Speaker 03:
Much of it did not.

[00:01:54] Speaker 03:
That was enacted late in the game.

[00:01:57] Speaker 03:
And so many of these renters who are former renters who are now living rent-free, the money may have been out there, but they were under no

[00:02:07] Speaker 03:
compulsion to go and take advantage of those funds, and often do.

[00:02:11] Speaker 01:
But do you agree that everyone involved in this program contemplated that this eviction moratorium would not result in a taking, or whatever you want to call it, because Congress was appropriating money to cover the rental expenses of those tenants that were not evicted and were unable to pay rent?

[00:02:30] Speaker 03:
No, Your Honor, I disagree with that because what the government could have done to avoid this problem was say that we're allocating $50 billion or whatever we're going to allocate and pay that to the landlords.

[00:02:43] Speaker 01:
uh... to make sure that they are compensated it didn't look like that if they're paying it to i don't want to spend my time at the beginning to the renters for the purpose of covering the rental expenses yet you're right it could have been avoided maybe some of that you know interim steps but that was the same purpose whether they get it gave it to the renters of landlords it was for purpose of covering the rental expenses if they were unable to pay them right only if it was effective though for the purposes of the take

[00:03:09] Speaker 04:
Okay, sorry about that.

[00:03:11] Speaker 04:
So we have these Supreme Court cases and we have our cases which says that to state a takings claim you have to assume authorization and that if the government action is unauthorized that is a ground for enjoining the action but not for a taking.

[00:03:31] Speaker 04:
And I'm having difficulty putting this situation in an authorization context because the Supreme Court has said that the order was unauthorized.

[00:03:48] Speaker 03:
Right.

[00:03:49] Speaker 03:
Actually, this court's opinion in Del Rio and the Supreme Court's decision in Alabama Association of Realtors answers that question earlier.

[00:03:59] Speaker 03:
In Del Rio, the court said, look, when we talk about unauthorized, we're not talking about is it explicit in the statute.

[00:04:07] Speaker 03:
We're talking about something different for purposes of taking law.

[00:04:11] Speaker 04:
OK, but your problem is that the Supreme Court cases say it has to be authorized.

[00:04:17] Speaker 04:
In the Riff Energy case, Judge Bryson, who wrote the Del Rio opinion, said explicitly that it requires, the takings claim requires authorization.

[00:04:29] Speaker 04:
And there are many cases where a taker's claim has been rejected on the ground that the action wasn't authorized, including the Howe case, North American transportation in the Supreme Court, and NBH, LAND, TABLEG, Southern California, Lion Raisins, and Washington Federal in our court or the predecessor court.

[00:04:53] Speaker 04:
What case holds that if there's a lack of authorization under the basic statute,

[00:04:59] Speaker 04:
that you can nonetheless stay to taking this claim.

[00:05:04] Speaker 03:
In fact, that is what Del Rio says.

[00:05:06] Speaker 03:
And Ho, for example, doesn't say anything different.

[00:05:09] Speaker 03:
There, there is explicit limits.

[00:05:11] Speaker 04:
But Del Rio did not involve a situation of lack of authorization of the statute.

[00:05:17] Speaker 04:
It involved a situation where the government, by contract, had already agreed to access to the land.

[00:05:23] Speaker 04:
I'm asking which case finds a lack of authorization

[00:05:28] Speaker 04:
and still says there's a takings clause.

[00:05:32] Speaker 03:
OK.

[00:05:34] Speaker 03:
Again, lack of authorization is a question that depends on the individual circumstances.

[00:05:41] Speaker 03:
So you have, in Del Rio, it wasn't just that they had the land.

[00:05:45] Speaker 03:
The question was, was it authorized for the Interior Department to say, well, you have to go get an easement from the tribal nation?

[00:05:55] Speaker 03:
And then it was determined, no, that's a misreading of the statute.

[00:05:58] Speaker 04:
So it was not a misreading of the statute.

[00:06:01] Speaker 04:
It's that that ruling was contrary to the contract that they entered into.

[00:06:07] Speaker 03:
And so Del Rio says that when you're looking at this, absent a congressional declination, so if Congress specifically says, as in the tobacco cases, if Congress says you shall not do this and you do it, then it's clearly not authorized.

[00:06:24] Speaker 03:
But otherwise, if it's within the general purposes, then it doesn't require there to be a statute that says you can do exactly this.

[00:06:35] Speaker 02:
Do you say you're relying on Ramirez for this distinction?

[00:06:38] Speaker 03:
No, I'm sorry.

[00:06:39] Speaker 03:
I may have mispoken.

[00:06:40] Speaker 03:
Del Rio, and then following that, if you look at the Court of Federal Claim Decisions in Board Machine in Laguna Katuna, they both read Del Rio exactly that same way.

[00:06:52] Speaker 03:
Because you have in Laguna Katuna the exact situation we have here, is that the Supreme Court in another case

[00:07:01] Speaker 03:
intervenes and says, oh, the mere presence of migratory earth doesn't make something a water of the United States under the Clean Water Act.

[00:07:11] Speaker 03:
And therefore, the EPA did not have any statutory authority to prevent the discharge of the oil and gas fluids onto this dry lake bed.

[00:07:23] Speaker 03:
Nonetheless, the court says, yeah, but it's within the EPA's scope to determine these things.

[00:07:29] Speaker 03:
And it cites Del Rio and says that's exactly what they're doing.

[00:07:33] Speaker 04:
Those are court of federal claims decisions.

[00:07:35] Speaker 04:
Correct.

[00:07:37] Speaker 04:
You're familiar with Rift Energy?

[00:07:39] Speaker 04:
I'm not, Ariel.

[00:07:40] Speaker 04:
You're not?

[00:07:41] Speaker 04:
Well, you should read it because it goes on to explain what Del Rio said.

[00:07:45] Speaker 04:
And it says, as long as the government's action was authorized, even if the government's action was subject to a legal challenge on some other ground,

[00:07:54] Speaker 04:
We explained that unconstitutional taking lies, but it also goes on to say explicitly, Del Rio does not give the plaintiff a right to litigate the issue in a takings claim rather than a professionally mandated administrative proceeding.

[00:08:09] Speaker 04:
RIT is thus required to litigate its takings claims on the assumption that the administrative action was both authorized and lawful.

[00:08:17] Speaker 04:
You are not assuming that the action here was authorized.

[00:08:22] Speaker 04:
You couldn't because the Supreme Court said it wasn't.

[00:08:27] Speaker 03:
Yeah, but the difference is that there was a statute and the statute authorizes

[00:08:33] Speaker 01:
uh... the department of health and human services to enact such regulations as are necessary to prevent the spread of communicable and i think you lost that in uh... alabama i think that is it in mind is it fair to say that your position here rests on

[00:08:50] Speaker 01:
the interpretation of authorization in the context of a takings claim and that there's language in Del Rio that talks about the scope of authority and I think even Del Rio and Ramirez that say

[00:09:04] Speaker 01:
What conduct action is chargeable to the government when it is a good-faith implementation of the statute?

[00:09:12] Speaker 01:
And is that what you're kind of relying on here for the purpose of authorization?

[00:09:16] Speaker 03:
Absolutely.

[00:09:16] Speaker 03:
Because it was clearly a good-faith interpretation of the statute.

[00:09:20] Speaker 03:
The government, which has now taken a different position, for a year said it is a good-faith implementation of the statute.

[00:09:26] Speaker 03:
The president of the United States directed CDC through an executive order to take this action.

[00:09:34] Speaker 03:
CDC takes the action.

[00:09:35] Speaker 03:
Congress then extends it and says, yeah, you've taken this action.

[00:09:39] Speaker 03:
We want to continue this.

[00:09:41] Speaker 03:
So even though, ultimately, the Supreme Court says, we disagree that the specific part of the Public Health Act, I think it was section 361, we disagree that that gives you that amount of authority, for the purpose of a takings claim, it in no way says that that is not governmental action.

[00:10:01] Speaker 04:
How is that consistent?

[00:10:02] Speaker 04:
with all the cases that I cited to you where the Supreme Court and our court and our predecessor court has said repeatedly, because it was not authorized, there's no takings claim.

[00:10:13] Speaker 04:
It doesn't say that there's a good faith standard with energy.

[00:10:17] Speaker 04:
It doesn't say there's a good faith standard.

[00:10:21] Speaker 04:
Well, that's very much what Del Rio says.

[00:10:23] Speaker 04:
Well, but that's a stray comment in there.

[00:10:28] Speaker 04:
which is explained in Rith Energy as not changing the rule articulated by the Supreme Court in the prior cases that authorizations require.

[00:10:39] Speaker 04:
Well, it'll take it a little further.

[00:10:40] Speaker 04:
We have all these cases which say no taking because no authorization.

[00:10:44] Speaker 02:
You agree an authorization is required, right?

[00:10:48] Speaker 03:
Yes.

[00:10:49] Speaker 03:
If, for instance, an authorization in the sense of a takings claim, which is not a dictionary definition of authorization.

[00:10:56] Speaker 03:
So if the Forest Service came in and did this, clearly not authorized.

[00:11:03] Speaker 03:
But we have the agency that Congress authorizes to deal with public health emergencies.

[00:11:08] Speaker 03:
They are authorized.

[00:11:09] Speaker 03:
They're doing this pursuant to a presidential directive to doing that.

[00:11:13] Speaker 03:
The fact that down the line, somebody comes in and says, you know what?

[00:11:16] Speaker 03:
We're going to read this differently.

[00:11:18] Speaker 03:
And keep in mind that the DC Circuit and the district court had different readings.

[00:11:23] Speaker 03:
The DC Circuit said, no, we think it is fully authorized.

[00:11:28] Speaker 03:
The key here is the whole purpose of this part of taking jurisprudence is to say, look, if government goes and somebody clearly is not authorized,

[00:11:41] Speaker 03:
uh... and i think that the supreme court said that the cdc was clearly not authorized well the supreme court actually in the alabama association realtors went on and said that insured preventing uh... the uh... landlord for a victim tenants at least at least improves that they that they said it's clearly not authorized they they regard the cdc

[00:12:06] Speaker 04:
interpretation of the statute is odd and inconsistent with the fundamental purposes of the statute.

[00:12:13] Speaker 03:
They did, but then they went on and said, but by the way, what you're doing here is a taking.

[00:12:19] Speaker 01:
And I think in your brief you relied to a certain extent on the Supreme Court's opinions in Great Falls and in Cosby, which also arguably involved

[00:12:30] Speaker 01:
action that was ultimately found to have not been authorized, but was nonetheless concluded to have been taken.

[00:12:38] Speaker 03:
Exactly, Your Honor, because it says, look, if you're painting outside, you are found subsequently to have painted outside the lines.

[00:12:45] Speaker 03:
But you had a good faith basis for doing this, or it was within the scope of your general duties, and clearly the CDC

[00:12:52] Speaker 03:
it's within its general scope to try to protect the public health and through such measures.

[00:13:00] Speaker 03:
Even if subsequently someone says, you know what, you went too far, that's not, you know, you went an extra step as in Great Falls, you only had a certain footprint across the Potomac.

[00:13:12] Speaker 04:
In the Great Falls, there was nothing in the statute defining the scope of the survey.

[00:13:18] Speaker 04:
It was just because ultimately some other official

[00:13:22] Speaker 04:
did a survey, which didn't include this thing.

[00:13:25] Speaker 04:
And the Supreme Court said in Great Falls, well, this is within the purposes of the statute, and therefore it's a taking.

[00:13:32] Speaker 04:
But it doesn't stand for the proposition that a lack of authorization situation can involve a taking, because it said specifically it is authorized by the statute.

[00:13:44] Speaker 03:
And again, my argument is, for taking's purposes,

[00:13:50] Speaker 03:
Supreme Court in Alabama Association of Realtors doesn't say for takings purposes that the statute is not authorized.

[00:13:57] Speaker 03:
It says, we think you went too far and you don't have this basis.

[00:14:02] Speaker 03:
That's no different from the Supreme Court saying you don't have authority under the Clean Water Act merely because you found migratory birds in the lake bed to prevent a discharge.

[00:14:15] Speaker 03:
The same thing applies.

[00:14:16] Speaker 03:
Just as the EPA there had the authority

[00:14:19] Speaker 03:
to do this, the fact that the Supreme Court later said, no, you read that wrong.

[00:14:24] Speaker 03:
Same thing here.

[00:14:25] Speaker 03:
Just because the Supreme Court says, no, CDC and Health and Human Services, you read this too broadly, doesn't mean for the purposes of taking law that they were not authorized to take these actions.

[00:14:39] Speaker 02:
For purposes of takings law, is there any scenario or any cases that involve a scenario like this one where there was

[00:14:48] Speaker 02:
You know, the agency takes some action and then there's some action taken by Congress also, maybe in support of the agency's action.

[00:14:58] Speaker 02:
I mean, what cases do you think are best for showing that that would mean, perhaps, authorization undertaking law?

[00:15:07] Speaker 03:
Yeah, and I'm sorry, I don't have one off the top of my head that says,

[00:15:13] Speaker 03:
You know, this is, um, you know, we are now, there's no facts quite like this one.

[00:15:18] Speaker 03:
Yeah.

[00:15:18] Speaker 03:
I mean, it is pretty unique.

[00:15:19] Speaker 03:
I mean, clearly if Congress comes in and says, you know, we totally reject what you're doing.

[00:15:25] Speaker 03:
That's one thing, but here Congress did something else.

[00:15:28] Speaker 03:
They said, you've done this.

[00:15:30] Speaker 03:
We cite it.

[00:15:31] Speaker 03:
We want to continue it.

[00:15:32] Speaker 02:
You know, I just didn't see anything in the cases that the parties were citing that involved congressional action also.

[00:15:39] Speaker 03:
No, I think you're right.

[00:15:40] Speaker 03:
I mean, if there is one, I'm just not aware of it, Your Honor, which is possible.

[00:15:44] Speaker 03:
But I don't see that.

[00:15:45] Speaker 03:
But this is a fairly unique case.

[00:15:48] Speaker 03:
But keep in mind what's going on.

[00:15:49] Speaker 03:
All the case law is talking about what would, does the agency, is it doing something that is within its general scope?

[00:15:59] Speaker 03:
Clearly, HHS and CDC is here.

[00:16:01] Speaker 04:
That's just not true.

[00:16:02] Speaker 04:
All the cases that I cited to you are situations in which they construed the authorizing statute and said, there's no taking because it's outside the scope of the statute.

[00:16:15] Speaker 03:
But respectfully, Your Honor, a case like Hull, for example, there it's specifically cabin.

[00:16:20] Speaker 03:
And the Congress says, we're only going to allocate whatever it was, $4,500 or something for the building.

[00:16:27] Speaker 03:
And so it's clear.

[00:16:28] Speaker 03:
And in fact, communicated directly with the landlord.

[00:16:31] Speaker 03:
uh... i mean here's congress talk with his landlord at the turn of the century says we're only going to pay so much we're not taking the basement and the fact that you know that then they occupy the basement that was clear from the start but here you have a congressional act that specifically says that that uh... a j s is authorized to take such measures uh... as a reasonably necessary to spread the communication and spread communicable disease the fact that the next sentence then talks about fumigation etcetera

[00:16:58] Speaker 03:
Supreme Court subsequently says, no, we think that that second sentence controls.

[00:17:02] Speaker 03:
But in terms of authorization for takings purposes, they plainly met that standard.

[00:17:09] Speaker 03:
And Congress came in, and they certainly acquiesced in it if they didn't ratify it.

[00:17:16] Speaker 03:
Congress could have said no, but they didn't.

[00:17:18] Speaker 03:
They said yes.

[00:17:20] Speaker 01:
And the court, I think Justice Scalia said this in Ramirez.

[00:17:25] Speaker 01:
I mean, he cited Howell for saying in that case, there was a specific limitation on the agent's authority, which they transgressed.

[00:17:32] Speaker 01:
And that's different from this case.

[00:17:34] Speaker 03:
Absolutely.

[00:17:35] Speaker 03:
In all the cases, if the

[00:17:37] Speaker 03:
There's something, for instance, the cigarette cases.

[00:17:39] Speaker 03:
I mean, Congress specifically said the FDA can't regulate cigarettes.

[00:17:42] Speaker 03:
But that's just not true.

[00:17:44] Speaker 04:
I mean, there are half a dozen cases where they said no taking because no authorization.

[00:17:51] Speaker 04:
And those are not cases in which there was a specific congressional statute contradicting.

[00:17:57] Speaker 04:
That's just not the case.

[00:17:59] Speaker 03:
But respectfully, I don't think there's a congressional statute here contradicting what they did.

[00:18:05] Speaker 04:
No, no, but I'm saying the cases don't require contradiction.

[00:18:08] Speaker 04:
Maybe you can read how that way.

[00:18:11] Speaker 04:
I don't think so, but maybe you can.

[00:18:13] Speaker 04:
But there are all these other cases that have said there's no takings liability because there's no authorization.

[00:18:19] Speaker 04:
They're cited in the government's brief.

[00:18:21] Speaker 04:
And I just don't know.

[00:18:25] Speaker 03:
Again, that's a court of federal claims case.

[00:18:27] Speaker 03:
No, no, no.

[00:18:28] Speaker 03:
I understand.

[00:18:28] Speaker 03:
But the clear reading of that is because the court there says, were it not for Congress specifically saying the FDA doesn't have authority, it would have been authorized.

[00:18:38] Speaker 04:
I'm not talking about the FDA cases.

[00:18:41] Speaker 04:
I read you the list of cases.

[00:18:42] Speaker 04:
Those are not the FDA cases.

[00:18:44] Speaker 04:
Each of those cases said specifically lack of authorization, no.

[00:18:50] Speaker 03:
I would agree with that, Your Honor.

[00:18:51] Speaker 03:
But the point is, our view is, that begs the question, what is for taking purposes authorization?

[00:18:58] Speaker 04:
And in fact, in all of that, it was- The case has said there was nothing in the authorizing statute that permitted this.

[00:19:05] Speaker 03:
Del Rio goes on and doesn't limit it to, does the authorizing statute specifically say that?

[00:19:10] Speaker 03:
It goes on and says, is it within good faith interpretation?

[00:19:15] Speaker 03:
Clearly, there's a good faith interpretation here.

[00:19:17] Speaker 03:
Is it within the general scope?

[00:19:19] Speaker 03:
That is the body of case law.

[00:19:21] Speaker 01:
And what about the Ajoio also sort of juxtaposes ultra virus as being the exception where it's not.

[00:19:28] Speaker 01:
And so why isn't this case under the ultra virus?

[00:19:33] Speaker 03:
Because ultra virus, again, is where someone, again, in the board machine case, the example was if the Federal Communications Commission

[00:19:43] Speaker 03:
went out and tried to regulate airlines.

[00:19:45] Speaker 03:
Clearly, that's outside their scope.

[00:19:47] Speaker 03:
Similarly, here, if somebody from the fisheries department goes out and closes down whatever, or says you can't rent to someone, that's clearly ultra-virus.

[00:20:01] Speaker 03:
But when you have the CDC, which is charged with doing this specific type of

[00:20:06] Speaker 03:
of control of communicable diseases.

[00:20:09] Speaker 03:
You've got the president saying you need to do it.

[00:20:11] Speaker 03:
You've got Congress saying, we're all on board with this.

[00:20:15] Speaker 03:
And citing to the public Section 361 of the Public Health Act, which says that you can take actions necessary to spread those, you are for, that is definitely not ultraviolence.

[00:20:25] Speaker 04:
Here, their problem is that the Supreme Court in the City of Arlington case said specifically that an agency action is ultra-virus if it's not within the scope of the authorizing statute.

[00:20:39] Speaker 03:
It said that explicitly.

[00:20:41] Speaker 03:
The issue is, Your Honor, with all respect, if you look at takings laws that evolved, and we can go back and look at cases from

[00:20:48] Speaker 03:
the early 20th century or whatever, and there was a much narrower view of Takings' Law.

[00:20:53] Speaker 04:
As Takings' Law has evolved... The only case is not a 19th century or 20th century case.

[00:21:01] Speaker 04:
It is 2013, and it says specifically that an agency action is ultra-virus if it's not authorized by the statute.

[00:21:12] Speaker 03:
Right.

[00:21:13] Speaker 03:
And again, I think it becomes a little bit circular because the statute here does authorize, you know, the CDC to take these measures and Congress comes along and says, we agree, we want to keep doing it.

[00:21:25] Speaker 03:
The fact that the Supreme Court subsequently said,

[00:21:28] Speaker 03:
Our view is that the second sentence doesn't allow you to do this.

[00:21:33] Speaker 03:
That is different.

[00:21:36] Speaker 03:
And in fact, the Supreme Court in Alabama Association of Realtors goes on and it says, what is happening here is that despite the CDC's determination that landlords should bear a significant financial cost to the pandemic, many landlords have modest means in preventing them from evicting tenants

[00:21:53] Speaker 03:
who breach their leases, intrudes on one of the most fundamental elements of property ownership, the right to exclude.

[00:21:58] Speaker 03:
So to read Alabama Association of Realtors as saying lack of authorization for takings purposes is entirely inconsistent with that language from that opinion that I just read.

[00:22:08] Speaker 03:
The court made it clear, as a matter of fact, that this is a taking and signaled where this is going, that the fact that it ultimately said that for the purposes of the injunction,

[00:22:21] Speaker 03:
It thought that the government had gone too far.

[00:22:26] Speaker 03:
It in no way speaks to the takings aspect of authorization.

[00:22:30] Speaker 02:
When you say it signaled where this was going with takings, is that based just on the language you just read?

[00:22:36] Speaker 03:
It is.

[00:22:37] Speaker 03:
All right.

[00:22:41] Speaker 04:
I think we're out of time.

[00:22:43] Speaker 03:
I think so.

[00:22:43] Speaker 04:
We'll give you a couple of minutes for a follow-up.

[00:22:45] Speaker 03:
I appreciate it.

[00:22:46] Speaker 03:
Thank you.

[00:22:56] Speaker 00:
May it please the court.

[00:22:58] Speaker 00:
It's well established in Takings Law that for the government to be liable for taking the government action at issue must be duly authorized by Congress.

[00:23:09] Speaker 00:
Alabama Association of Realtors conclusively held that

[00:23:14] Speaker 00:
Uh, there was no authorization for the eviction morgue.

[00:23:17] Speaker 01:
Can I just, I'm sorry to interrupt, but can I just start you where I started your friend?

[00:23:21] Speaker 01:
Cause I just can't resist it because I really am perplexed why we're here and how we're here.

[00:23:27] Speaker 01:
Because when this, when this program was in effect, irrespective of the authorization of CDC, we had Congress appropriate almost $50 billion.

[00:23:38] Speaker 01:
And it's my understanding reading the language and the two congressional actions.

[00:23:43] Speaker 01:
that it was appropriating this money, not authorizing, appropriating money, $50 billion, to allow state and local governments to give to renters so that they could pay their rent.

[00:23:55] Speaker 01:
And we wouldn't be here if that had happened.

[00:23:58] Speaker 01:
So why did that not happen?

[00:24:00] Speaker 00:
Well, I think there's

[00:24:02] Speaker 00:
there's several different points that one i mean that program was administered by treasury that money has been allocated out i think it's approximately forty seven billion dollars uh... but i'm not sure you say we wouldn't be here i mean this is this is plaintiff's complaint here there you know what i meant was maybe i mean that it it it'd been given to the records at the minute money had been used as intended by congress

[00:24:29] Speaker 01:
in a timely fashion, then the renters would have had the money to pay the rent and the lab lords wouldn't have deprived of their rental money even through this eviction.

[00:24:39] Speaker 01:
Wasn't that the point of the appropriations?

[00:24:43] Speaker 00:
The point of the appropriations certainly was to help individuals who were behind on their rent, but I think there's a lot of different issues at play with respect to that.

[00:24:55] Speaker 00:
I mean, that may be the ultimate, you know, if

[00:24:59] Speaker 00:
uh... setting aside our arguments on authorization and our arguments with respect to a person taking whether or not a plaintiff can even show they didn't go and use the government program or for example you know where the money is?

[00:25:14] Speaker 01:
I mean is there some money?

[00:25:17] Speaker 01:
The treasury still has?

[00:25:18] Speaker 01:
Has it all been allocated?

[00:25:20] Speaker 00:
We cited in our brief the citation to treasuries program and the allocation of the money

[00:25:27] Speaker 00:
the last time I looked, it's all been allocated out.

[00:25:31] Speaker 00:
I mean, it's going to the states, and the states have their own programs to get the money out.

[00:25:36] Speaker 00:
I mean, I don't know specifically whether each and every state has allocated its money, but that's, I think, to some extent, that's

[00:25:47] Speaker 00:
Besides the point, I think it probably... No, I'm not suggesting it.

[00:25:50] Speaker 01:
I'm sorry.

[00:25:50] Speaker 01:
I think it probably... I think it probably exists, having spent a month looking at this case.

[00:25:53] Speaker 00:
Sure.

[00:25:53] Speaker 00:
I think it probably exemplifies, as far as the merits of a takings claim, that there may not be much of a cognizable takings claim setting aside those issues.

[00:26:02] Speaker 00:
But back to the authorization point, plaintiffs' argument is contrary to Supreme Court precedent.

[00:26:09] Speaker 01:
Well, let me ask you about that because Judge Dyke called out a number of cases, but at least two of them, as I heard him, were the Riff Energy line of cases and also the city of Arlington.

[00:26:21] Speaker 01:
And I didn't see, maybe I missed it, the government reliance on the city of Arlington.

[00:26:28] Speaker 01:
And I know they cited Riff.

[00:26:30] Speaker 01:
It was a neat

[00:26:31] Speaker 01:
But you cited RIF to say the rule there is not implicated here.

[00:26:34] Speaker 01:
You cited RIF in a footnote on page 25 of your brief.

[00:26:37] Speaker 04:
Well, I didn't mean to suggest that the City of Arlington case dealt with this issue.

[00:26:42] Speaker 01:
I apologize.

[00:26:43] Speaker 04:
What the City of Arlington case says is that if the agency acts beyond its authority, it's acting ultra-violence.

[00:26:51] Speaker 00:
Respectfully, for example, we cited the Young Sound Sheet and Tube case.

[00:26:56] Speaker 00:
So that's a very analogous case to what happened here.

[00:27:00] Speaker 00:
The Supreme Court looked at the government action there, President Truman directing the Department of Commerce to seize the various steel mills.

[00:27:12] Speaker 00:
It went through whether or not there was authorization.

[00:27:15] Speaker 00:
And it looked at various statutes.

[00:27:17] Speaker 00:
It looked at President's power.

[00:27:19] Speaker 01:
But wait, am I just remembering, didn't Youngstown, didn't the Supreme Court decide Youngstown on the constitutional issue and not reach this issue?

[00:27:27] Speaker 00:
It reached the issue, and it's not dicta.

[00:27:30] Speaker 00:
Because if you look at the briefings in that case, the Solicitor's Office specifically made the argument

[00:27:36] Speaker 00:
that there would be a takings remedy even if there was no authorization in that case.

[00:27:42] Speaker 00:
And the Supreme Court rejected that.

[00:27:43] Speaker 00:
And it cited the Hoey case.

[00:27:45] Speaker 00:
It cited North American transportation as well.

[00:27:48] Speaker 00:
And so that case is a very analogous case to here because in the argument was, don't enjoin the president from doing this because it's a takings remedy.

[00:28:01] Speaker 04:
And the Supreme Court says there's no takings remedy.

[00:28:04] Speaker 00:
Right.

[00:28:05] Speaker 00:
The government's argument was there's a backstop here, so you don't have to enjoin President Truman's action here.

[00:28:12] Speaker 00:
And in fact, in the briefing, the government actually represented that it would not raise the authorization issue in a lawsuit in the Court of Federal Claims.

[00:28:22] Speaker 00:
The Supreme Court rejected that.

[00:28:24] Speaker 00:
And that's Supreme Court precedent, and Del Rio can't contravene cases like

[00:28:32] Speaker 00:
Youngstown or Hoey.

[00:28:35] Speaker 00:
And with respect to Hoey, there's two issues in that case.

[00:28:40] Speaker 00:
One's an implied, in fact, contract issue.

[00:28:44] Speaker 00:
One is the taking issue.

[00:28:46] Speaker 00:
With respect to the takings issue, the Supreme Court doesn't mention anything about this limit on Congress.

[00:28:52] Speaker 00:
It specifically points to the fact that there's no authorization expressed or implied, and that's the standard in the line of cases going all the way back that's gone forward to Youngstown and is still the standard today.

[00:29:08] Speaker 00:
This court can't contravene that precedent on the authority issue.

[00:29:12] Speaker 00:
Once there's a lack of authority, as the Supreme Court held in Alabama Association of Realtors, that's the end of the story.

[00:29:20] Speaker 00:
It's outside the scope of the issue.

[00:29:23] Speaker 01:
In your view, was the CDC tempting a good faith implementation of the Public Health Services Act?

[00:29:30] Speaker 00:
I mean, they were acting in good faith, but that's

[00:29:35] Speaker 00:
When Del Rio uses that term, there still must be authority for the specific action at issue.

[00:29:43] Speaker 00:
That always has to be the case.

[00:29:45] Speaker 00:
It's not just a general good faith standard.

[00:29:48] Speaker 00:
And what Del Rio was really getting to is the situation where

[00:29:52] Speaker 00:
There is statutory authority.

[00:29:54] Speaker 00:
There is the authority to act, the power to act.

[00:29:57] Speaker 00:
But for some reason, and we cited to this in our brief and cited to the Tabs Lake case, for example, there was like a procedural issue with the implementation of that.

[00:30:10] Speaker 00:
And that's similar to Del Rio, what was happening with Del Rio, that it violated the contract.

[00:30:15] Speaker 00:
But in Del Rio,

[00:30:16] Speaker 00:
The Department of Interior had the power to issue permits, had the power to regulate specific mining at issue.

[00:30:24] Speaker 00:
Here, the Supreme Court flatly rejected that the CDC had the power to issue the eviction moratorium.

[00:30:33] Speaker 00:
And it did it in no... I mean, the clarity of the words are striking.

[00:30:38] Speaker 00:
They said it's strange credulity, the government's interpretation of the statute.

[00:30:43] Speaker 00:
It mentioned that the interpretation that

[00:30:46] Speaker 00:
the use of the statute was unprecedented it said it was uh... you know i mean i can't keep mentioning language from that case but there's there's no there's absolutely no daylight uh... from the supreme court's decision in alabama association realtors in a finding of lack of authority for any purpose for takings purposes as well as and what do you make of the sentence that your friend called out couple times uh... uh... from alabama

[00:31:15] Speaker 00:
Well, the sentence from Alabama is a statement without any briefing at all.

[00:31:21] Speaker 00:
If you go back and look at the briefing in that case, there was no takings claim raised at all in Alabama Association.

[00:31:29] Speaker 00:
And we're talking about one citation to Loretta where the prior sentence even indicates, I think the sentence states, that there's no guarantee that these plaintiffs would receive compensation.

[00:31:40] Speaker 00:
But again, I mean, that's just- I'm sorry, I didn't catch that.

[00:31:44] Speaker 01:
They cited to Loretto, and now you're citing Loretto's?

[00:31:47] Speaker 00:
No, I'm saying in the sentence in Alabama Association prior to that Loretto citation, the Supreme Court stated that there's no guarantee these individuals receive compensation.

[00:32:01] Speaker 00:
But again, that issue was just not briefed at all.

[00:32:04] Speaker 00:
And again, if it was briefed, there would certainly be the issues of authority.

[00:32:11] Speaker 00:
And they weren't addressing, if we were to get to our next argument, they weren't addressing the ye line of cases there.

[00:32:21] Speaker 00:
But again, that was also in the context of irreparable harm.

[00:32:25] Speaker 00:
The merits of the case was the authority issue.

[00:32:29] Speaker 00:
And let me add that in West Virginia versus EPA, contrary to what plaintiff's counsel has said about

[00:32:34] Speaker 00:
that the Alabama Association decision was not a final order or whatnot, the Supreme Court has cited Alabama Association on the authority issue as a holding for cases on the merits.

[00:32:47] Speaker 00:
What about Cosby and Great Falls?

[00:32:50] Speaker 01:
You touched on it a little, but I guess I wasn't clear on why this isn't involving the same type of exceeding authority that you are talking about.

[00:32:59] Speaker 00:
Well, because I'll address Great Falls first.

[00:33:01] Speaker 00:
So in Great Falls, what Congress

[00:33:04] Speaker 00:
The actual statuette issue there that provided the authority was saying, you can go and seize by eminent domain, land for a dam.

[00:33:15] Speaker 00:
And that's what happened.

[00:33:18] Speaker 00:
And the only issue there was really an issue of this map and notice.

[00:33:23] Speaker 00:
The map that was created was essentially slightly inaccurate.

[00:33:28] Speaker 00:
And this was back in the 1800s.

[00:33:31] Speaker 00:
It was slightly inaccurate.

[00:33:34] Speaker 00:
But as to the- And the map wasn't part of the statute.

[00:33:38] Speaker 00:
Exactly, Your Honor.

[00:33:39] Speaker 00:
The map wasn't part of the statute.

[00:33:41] Speaker 00:
The authorizing statute was to go out and seize by eminent domain land for a dam.

[00:33:48] Speaker 00:
And they complied with that.

[00:33:49] Speaker 00:
It just so happens.

[00:33:50] Speaker 00:
I mean, we could call it a procedural infirmity, a problem with the implementation in some sort.

[00:33:57] Speaker 00:
But that's just not anywhere close to what we have when you're looking at the situation here.

[00:34:04] Speaker 00:
where the Supreme Court held as a matter of power the ability to act that the CDC could not go forward with respect to the eviction moratorium.

[00:34:17] Speaker 00:
Cosby's similar on that point because, I mean, one initial point on Cosby here is the government never actually raised an authority issue in that case.

[00:34:30] Speaker 00:
and in fact one of the issues that raised was a lack of authority one of the issues that raised was uh... essentially uh... the government has control over the airspace and that's why one of the reasons essentially why there can be a property interest there uh... for plaintiffs but that was the case about the government the government having exceeded its authority on where the flights could be but this the statute

[00:34:56] Speaker 00:
that even in that decision it's focusing on is the ability of that aviation administration, the aviation authority to implement, to essentially issue glide paths for airplanes.

[00:35:12] Speaker 00:
That is the core authority that in Cosby they were focusing on.

[00:35:17] Speaker 00:
And it just so happens it violated a different statute.

[00:35:20] Speaker 00:
But that's, I mean, one, if you read Cosby, there's hardly any discussion of this issue.

[00:35:27] Speaker 00:
And if anything, there's really just silence.

[00:35:29] Speaker 00:
I mean, it doesn't mention any of the cases we're talking about, because it just doesn't address that issue.

[00:35:35] Speaker 00:
And a big part of that was it wasn't presented to the Supreme Court, unlike, for example, in Youngstown, Sheaton Tube, where that issue was front and center, because both parties presented that to the Supreme Court.

[00:35:46] Speaker 00:
And I don't believe Cosby's even cited in Del Rio.

[00:35:52] Speaker 00:
So I don't even think if we were somehow

[00:35:54] Speaker 00:
going back to Del Rio, that the Del Rio court was finding Cosby to be a decision that really moves the needle.

[00:36:04] Speaker 00:
But again, those are easily distinguishable from the situations here where the Supreme Court clearly held that the CDC did not have the authority to issue the eviction moratorium.

[00:36:17] Speaker 00:
And because an essential element of all takings claim is authority, there can be no takings claim here.

[00:36:25] Speaker 00:
And I'm happy to, you know, we also raised an issue with respect to the physical taking line of cases.

[00:36:35] Speaker 00:
With respect to Yi, I'm happy to answer any questions about that because I see my time is almost up.

[00:36:41] Speaker 00:
uh... or the illegal ex-action issue as well uh... we don't think that either of those the you uh... we we think the e controls that issue uh... with respect to whether there's a physical taking uh... and not cedar point uh... with respect to the legal ex-action issue we think this court's precedent you need to be about the fiction cover fiction not just read control because the only as a matter of the issue is right

[00:37:10] Speaker 00:
I disagree with that because a big part of the claim in Yi, in fact, was the issue of plaintiffs were on the property.

[00:37:20] Speaker 00:
And it's the rent control statute in conjunction with California's eviction statute as well.

[00:37:28] Speaker 00:
Those plaintiffs, they wanted to evict individuals off their property, and they weren't able to do so.

[00:37:34] Speaker 00:
And the Supreme Court said that in that situation where there's been an initial invitation,

[00:37:39] Speaker 00:
for tenants to go onto the property, it has to be viewed through the lens of Penn Central.

[00:37:47] Speaker 00:
And Cedar Point does not change that, because the union organizers in Cedar Point were strangers.

[00:37:54] Speaker 00:
And that's the key difference.

[00:37:57] Speaker 00:
And numerous district courts have picked up on that and used that as the rationale.

[00:38:02] Speaker 00:
We addressed the one

[00:38:04] Speaker 00:
decision from the Eighth Circuit, which reached a different conclusion.

[00:38:08] Speaker 00:
But as the dissent in the rehearing on Bonk stated in that case, that's just based on a factual mistake.

[00:38:16] Speaker 00:
And Yi is still the controlling Supreme Court precedent there.

[00:38:22] Speaker 00:
Okay.

[00:38:22] Speaker 04:
Thank you, Mr. Yeo.

[00:38:22] Speaker 04:
Mr. Manning, you've got a couple of minutes.

[00:38:26] Speaker 03:
Thank you, Judge.

[00:38:28] Speaker 03:
Your Honor, I'd like to respond to just a couple of things.

[00:38:30] Speaker 03:
First of all, Youngstown Steel says nothing about this.

[00:38:34] Speaker 03:
That was a presidential order, so it was not rooted in any congressional action, and it was an injunction case.

[00:38:40] Speaker 03:
They weren't addressing the takings issue.

[00:38:42] Speaker 03:
There was some mention of taking, but the issue was whether a presidential order by itself without congressional authorization was legitimate or not.

[00:38:54] Speaker 03:
So it says nothing about this.

[00:38:56] Speaker 03:
Very briefly, Yi was absolutely a rent control case.

[00:39:00] Speaker 03:
In fact, the court in Yi says, you know, this would be a different case if there had been a prohibition on evicting tenants who did not pay rent.

[00:39:08] Speaker 03:
There was no challenge to the underlying California statute that put limits on transfers.

[00:39:15] Speaker 03:
It was simply an argument based on what an economist would term rent, and that is who got the value, the increased value of the pad.

[00:39:25] Speaker 01:
uh... if if you couldn't uh... uh... if the landlord uh... could not refuse uh... a sale of uh... of the mobile home to another tenant the issues here very different it's just a clean-up housekeeping question which is just that uh... you you you i'm not going to raise the illegal exception thing we didn't have that but just that you raise that as an alternative just as a process matter

[00:39:48] Speaker 01:
If one were to hypothetically agree with you on the takings claim, is it your view that we don't do agree that we would need to reach the illegal exemption?

[00:39:57] Speaker 03:
If you agree with us on the takings claim, you need not reach the illegal exemption.

[00:40:01] Speaker 01:
And also, you're pressing this exclusively as a physical taking.

[00:40:06] Speaker 01:
Yes, sir.

[00:40:07] Speaker 03:
That is correct.

[00:40:09] Speaker 03:
So whereas Cedar Point is exactly the case here, the court in spades goes over and over and says,

[00:40:17] Speaker 03:
This is if you have people who are not authorized to enter the property, and the government appropriates the right to exclude, that is a per se physical taking.

[00:40:27] Speaker 03:
The people we are talking about here are not renters.

[00:40:31] Speaker 03:
They are not authorized.

[00:40:32] Speaker 03:
They are former renters.

[00:40:34] Speaker 03:
But when they ceased making the rental payments, they were subject to eviction.

[00:40:38] Speaker 03:
So that puts them in a very different class.

[00:40:41] Speaker 03:
The government would like to say, oh, these people are invitees.

[00:40:44] Speaker 03:
They are not invitees.

[00:40:45] Speaker 03:
They were at one time.

[00:40:46] Speaker 03:
They stopped paying rent.

[00:40:47] Speaker 03:
They are no longer invitees.

[00:40:50] Speaker 03:
To sum up, Your Honors, the rule that the government would suggest here leads to this perverse consequence.

[00:40:56] Speaker 03:
It means that the government, contrary to what the founding fathers had in mind, if the government deliberately goes beyond its authority to take action and takes property, that there is no recompense.

[00:41:08] Speaker 03:
All right.

[00:41:09] Speaker 03:
The only response the government has is, well, you could seek an injunction.

[00:41:13] Speaker 03:
And we know how well that worked here, because there was an attempt at an injunction.

[00:41:16] Speaker 03:
And the government, despite now saying, oh, there's no statutory authority, took for a year, fought tooth and nail, and so for the entire period that this order was in effect, you had people living on premise, not paying rent, and the landlords incurring their costs.

[00:41:33] Speaker 04:
That is now what the constitution is.

[00:41:35] Speaker 03:
Thank you, Your Honor.

[00:41:36] Speaker 04:
I appreciate it.