Property Owners Retain the Right to Pursue Fifth Amendment Takings Claims Arising Out of the CDC Eviction Moratorium

On Friday, June 6, 2025, the United States Court of Appeals for the Federal Circuit denied the U.S. government’s petition for a rehearing in Darby v. United States, thus reaffirming the right of property owners to bring Fifth Amendment takings claims against the government for compensation arising out of the U.S. Centers for Disease Control (CDC) eviction moratorium.  

In September 2020, the CDC issued an eviction moratorium in response to the COVID-19 pandemic, which prevented residential evictions under the guise of public health. In July 2021, the Darby plaintiffs—a group of landlords and property owners—filed suit against the United States government arguing the eviction moratorium constituted a physical taking of private property for public use and thus were entitled to just compensation under the Fifth Amendment's takings clause. The case ended up before the U.S. Supreme Court, which terminated the moratorium, finding that the CDC exceeded its authority under the Public Health Service Act. Following the Supreme Court ruling, the government successfully moved to dismiss the property owners’ takings lawsuit, reasoning that a takings-based claim cannot be premised on unauthorized and invalidated government action.

The Darby plaintiffs then successfully appealed the government’s dismissal of the takings claims. Specifically, the Federal Circuit Court held that despite the moratorium being issued without legal authority, it would be treated as authorized for the purposes of the takings claim. NAR engaged at this stage of the case by filing an amicus brief in support of the property owners, arguing the moratorium constituted a clear per se taking with a devastating effect on property owners and was authorized for takings-claim purposes.

The government subsequently petitioned for rehearing on the matter, which was denied on June 6. The court’s denial, however, was not unanimous with some judges questioning whether unauthorized government action can be subject to takings claims, leaving open the possibility of the government seeking review from the U.S. Supreme Court. Regardless, this ruling is a win for landlords and property owners affected by the CDC eviction moratorium. While the underlying merits of the takings claims are yet to be determined, property owners and landlords retain the ability to be heard, receive just compensation, and hold the government accountable.

NAR’s legal advocacy efforts to support private property rights remain a priority. NAR will continue to monitor any developments in this case and provide updates accordingly.