NOTE: This disposition is nonprecedential.

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.
______________________

ON PETITION FOR REHEARING EN BANC

______________________

CREIGHTON REID MAGID, Dorsey & Whitney LLP,

Washington, DC, filed a response to the petition for plain-
tiffs-appellants. Also represented by SHAWN LARSEN-
BRIGHT, Seattle, WA.

ADAM C. JED, Commercial Litigation Branch, Civil Di-

vision, United States Department of Justice, Washington,
DC, filed a petition for rehearing en banc for defendant-
appellee. Also represented by BRIAN M. BOYNTON,
CATHERINE CARROLL, PATRICIA M. MCCARTHY, LOREN
MISHA PREHEIM, GERARD SINZDAK, NATHANAEL YALE.
2 DARBY DEVELOPMENT COMPANY, INC. v. US

Before MOORE, Chief Judge, LOURIE, DYK, PROST, REYNA,

TARANTO, CHEN, STOLL, CUNNINGHAM, and STARK, Circuit
Judges. 1
CHEN, Circuit Judge, concurs with the denial of the peti-
tion for rehearing en banc.
DYK, Circuit Judge, with whom CUNNINGHAM, Circuit
Judge, joins, dissents from the denial of the petition for
rehearing en banc.
STARK, Circuit Judge, dissents from the denial of the pe-
tition for rehearing en banc.
PER CURIAM.
ORDER
The United States filed a petition for rehearing en
banc. A response to the petition was invited by the court
and filed by Appellants. The petition was first referred as
a petition to the panel that heard the appeal, and thereaf-
ter the petition was referred to the circuit judges who are
in regular active service. The court conducted a poll on re-
quest, and the poll failed.
Upon consideration thereof,
IT IS ORDERED THAT:
The petition for panel rehearing is denied.
The petition for rehearing en banc is denied.

FOR THE COURT

June 6, 2025
Date

1 Circuit Judge Newman and Circuit Judge Hughes

did not participate.
 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.
______________________

CHEN, Circuit Judge, concurring with denial of the petition

for rehearing en banc.
I concur with this court’s decision to deny the petition
for rehearing en banc. I write separately, however, to em-
phasize two points: (1) the majority faithfully interprets
and applies our court’s precedent and (2) the issue in this
case, which goes to the scope of the Takings Clause, would
benefit from Supreme Court guidance.
Both the majority and dissent correctly note that a
plausible takings claim arises only where the government
“authorized” the act in question. See United States v. N.
Am. Transportation & Trading Co., 253 U.S. 330, 333
(1920). But, as the conflict between the majority and dis-
sent illustrates, “authorized” in this context can have two
2 DARBY DEVELOPMENT COMPANY, INC. v. US

reasonable meanings: (1) arising from actual legal author-

ity (as the dissent believes) or instead, (2) arising from a
good faith implementation of a Congressional Act or from
within the scope of an agent’s general duties (as the major-
ity holds).
Our court has already chosen one of those approaches:
“government agents have the requisite authorization if
they act within the general scope of their duties, i.e., if their
actions are a ‘natural consequence of Congressionally ap-
proved measures,’ or are pursuant to ‘the good faith imple-
mentation of a Congressional Act.’” Del-Rio Drilling
Programs, Inc. v. United States, 146 F.3d 1358, 1362 (Fed.
Cir. 1998) (citations omitted). That is, even if a govern-
ment official’s action is later determined to have been con-
trary to law, the relevant question for takings purposes is
“whether the alleged invasion of property rights is charge-
able to the government.” Id. The majority’s emphasis on
the scope of an agent’s duties, as well as an agent’s good
faith implementation, see Darby Dev. Co., Inc. v. United
States, 112 F.4th 1017, 1024 (Fed. Cir. 2024), faithfully ap-
plies Del-Rio. Del-Rio (and accordingly, the majority’s ap-
proach) also rests on what I believe to be the better
understanding of the relevant Supreme Court precedent.
See id. at 1024–27. I accordingly concur in the denial of
rehearing en banc.
Nevertheless, this consequential question about the
Takings Clause warrants Supreme Court guidance for a
few reasons.
For one, even though I think the majority correctly de-
cided this case, the dissent offers a reasonable interpreta-
tion of the Supreme Court’s decisions. Only the Supreme
Court can provide the needed clarity as to the meaning of
“authorized” in its takings jurisprudence.
Moreover, this issue will almost certainly recur.
Whether the government authorized the act-in-question is
a threshold question for all takings claims, not merely a
DARBY DEVELOPMENT COMPANY, INC. v. US 3

subset of them. And despite our court’s decision today, this

question will continue to linger until the Supreme Court
definitively resolves the matter.
Finally, not only does this case present an unresolved
and consequential legal question, but it also is significant
on its facts. The underlying CDC order affected millions of
citizens and garnered significant attention, making it ex-
ceptionally high-profile.
In sum, while I concur with the denial of the petition
for rehearing en banc, I believe our court and other lower
courts would benefit from Supreme Court guidance on
what type of government action counts as authorized action
for takings purposes, and this case is an ideal vehicle to
resolve that question.
 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, with whom CUNNINGHAM, Circuit

Judge, joins, dissenting from denial of petition for rehear-
ing en banc.
This case presents the question whether the United
States can be liable for the unauthorized acts of its officials
under the Takings Clause. The panel majority’s decision,
in my view, is contrary to governing Supreme Court au-
thority. I respectfully dissent from the order denying en
banc rehearing with respect to this important question.
I
On September 4, 2020, the Centers for Disease Control
and Prevention (“CDC”) promulgated an agency order that
temporarily halted residential evictions in the midst of the
COVID-19 pandemic, relying on its authority under 42
2 DARBY DEVELOPMENT COMPANY, INC. v. US

U.S.C. § 264(a). The Supreme Court held that it was “vir-

tually certain . . . that the CDC ha[d] exceeded its author-
ity” under that statute. Ala. Ass’n of Realtors v. Dep’t of
Health & Hum. Servs., 594 U.S. 758, 759 (2021); see also
Resp. to Pet. for En Banc Reh’g at 2, Darby Dev. Co.
v. United States, 112 F.4th 1017 (Fed. Cir. 2024) (No. 22-
1929) (conceding that “the Supreme Court ultimately ex-
pressed the view that the moratorium exceeded the CDC’s
statutory authority”). As a result, the eviction moratorium
was enjoined. See Ala. Ass’n of Realtors, 594 U.S. at 766.
Despite the lack of statutory authority, the panel ma-
jority held that the order was not unauthorized for takings
purposes because it was done “within the normal scope of
the agent’s duties,” Darby Dev. Co., Inc. v. United States,
112 F.4th 1017, 1027 (Fed. Cir. 2024), effectively importing
the scope-of-duty standard from tort law into the takings
context. 1
II
The panel majority’s decision is contrary to more than
100 years of Supreme Court precedent that holds that a
government agent’s actions do not subject the government
to takings liability unless they were made with actual au-
thority under the statute:
o “[I]f property were seized or taken by officers of
the government without authority of law . . .
there could be no recovery.” United States

1 Compare id. (“[A]n action by a government

agent . . . will likely be deemed authorized for takings-
claim purposes if it was done within the normal scope of
the agent’s duties.”), with 28 U.S.C. § 1346(b)(1) (authoriz-
ing suit in tort for harm “caused by . . . any employee of the
Government while acting within the scope of his office or
employment”).
DARBY DEVELOPMENT COMPANY, INC. v. US 3

v. Lynah, 188 U.S. 445, 479 (1903) (Brown, J.,

concurring).
o “The constitutional prohibition against taking
private property for public use without just com-
pensation is directed against the government,
and not against individual or public officers pro-
ceeding without the authority of legislative en-
actment.” Hooe v. United States, 218 U.S. 322,
335–36 (1910).
o “[A] wrongful act[] [by an officer] cannot be held
to be the act of the United States, and therefore
affords no ground in any event for holding that
the United States had taken the property for
public use.” Hughes v. United States, 230 U.S.
24, 35 (1913).
o “In order that the government shall be liable it
must appear that the officer who has physically
taken possession of the property was duly au-
thorized so to do, either directly by Congress or
by the official upon whom Congress conferred
the power.” United States v. N. Am. Transp. &
Trading Co., 253 U.S. 330, 333 (1920).
o “[A remand is required because it] 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 Government by taking the land.” Ports-
mouth Harbor Land & Hotel Co. v. United
States, 260 U.S. 327, 330 (1922).
o “In the absence of authority, even an intentional
taking cannot support an action for compensa-
tion under the Tucker Act.” Mitchell v. United
States, 267 U.S. 341, 345 (1925).
o “The distinction between property taken under
authorization of Congress and property appro-
priated without such authority has long been
4 DARBY DEVELOPMENT COMPANY, INC. v. US

recognized. Acts of government officials in tak-

ing property without authorization of Congress
confer no right of recovery upon the injured citi-
zen.” United States v. Goltra, 312 U.S. 203, 208
(1941) (footnote omitted).
o “[T]he Government action must be authorized.
‘The taking of private property by an officer of
the United States for public use, without being
authorized[] . . . to do so by some act of Congress,
is not the act of the government,’ and hence re-
covery is not available in the Court of Claims.”
Regional Rail Reorganization Act Cases,
419 U.S. 102, 127 n.16 (1974) (quoting Hooe,
218 U.S. at 336). 2
Commentators have also recognized the Supreme
Court’s adoption of this bright-line rule. 3 At least one

2 The panel majority’s reliance on Great Falls Man-

ufacturing Co. v. Garland, 124 U.S. 581 (1888), is mis-
placed. See Darby, 112 F.4th at 1024. In Great Falls, the
Supreme Court expressly found that the government had
the authority to condemn the property in question. See
124 U.S. at 597 (explaining that the Secretary of War was
“invested with large discretion in determining what land
was actually required to accomplish . . . [condemnation of
lands outside of Congress’s prescribed] survey and map”
and because the condemnation was undertaken “for the
purposes indicated in the act of [C]ongress, whether it is
embraced or described in said survey or map or not”).
3 See, e.g., Daniel L. Siegel & Robert Meltz, Tempo-
rary Takings: Settled Principles and Unresolved Questions,
11 Vt. J. Env’t L. 479, 500 (2010) (“The concept that acts of
government officials must be authorized before they can vi-
olate the Takings Clause goes back at least to 1910.”); Jed
Michael Silversmith, Takings, Torts and Turmoil: Review-
ing the Authority Requirement of the Just Compensation
DARBY DEVELOPMENT COMPANY, INC. v. US 5

appellate court has found that the panel majority’s reason-

ing is contrary to traditional principles of takings liability
as embodied in state law. See D.A. Realestate Inv., LLC
v. City of Norfolk, 126 F.4th 309, 318 n.11 (4th Cir. 2025).
Given the historical understanding of takings claims as
analogous to implied contracts, 4 it is also noteworthy that
since at least 1868, the Supreme Court has routinely held
that a government agent acting without actual authority
cannot bind the government to contract liability. See Gib-
bons v. United States, 75 U.S. (8 Wall.) 269, 274 (1868)
(“[T]his case is an attempt, under the assumption of an im-
plied contract, to make the government responsible for the
unauthorized acts of its officer, those acts being in them-
selves torts. No government has ever held itself liable to
individuals for the misfeasance, laches, or unauthorized
exercise of power by its officers and agents.”); see also The
Floyd Acceptances, 74 U.S. (7 Wall.) 666, 679–80, 682
(1868); Off. of Pers. Mgmt. v. Richmond, 496 U.S. 414, 424
(1990); Schism v. United States, 316 F.3d 1259, 1284
(Fed. Cir. 2002) (en banc) (holding that private parties can-
not form “valid, binding contract[s]” with government offi-
cials who “lack[] actual authority”).
As discussed in further detail in my original panel dis-
sent, the panel’s decision represents an abrupt departure
from an unbroken line of cases in our court as well as the
Supreme Court.
III
The panel majority’s importation of the scope-of-duty
standard from tort law into the analysis under the Takings

Clause, 19 UCLA J. Env’t L. & Pol’y 359, 371 (2002) (“After

nearly one hundred years, the courts still apply this au-
thorization requirement even if equitable considerations
strongly favor the plaintiff.”).
4 See N. Am. Transp., 253 U.S. at 335.
6 DARBY DEVELOPMENT COMPANY, INC. v. US

Clause cannot be squared with the historical understand-

ing of the Takings Clause. We must interpret the scope of
the Takings Clause against the backdrop of contemporane-
ous English practice at the time of ratification as to provi-
sions that were “[d]erived from English practice and
codified in” the Bill of Rights. United States v. Rahimi,
602 U.S. 680, 690 (2024).
As the Court noted in Horne v. Department of Agricul-
ture, 576 U.S. 350 (2015), the principle that the govern-
ment should be liable for appropriating private property
“goes back [to] at least 800 years to Magna Carta, which
specifically protected agricultural crops from uncompen-
sated takings.” Id. at 358 (citing Cl. 28 (1215), in
W. McKechnie, Magna Carta, A Commentary on the Great
Charter of King John 329 (2d ed. 1914)). English practice
at the time of ratification demonstrates that unauthorized
acts by the King’s agents were not attributable to the Sov-
ereign but instead gave rise to tort liability in the agents.
The seminal English case is Entick v. Carrington
[1765] 95 ER 807, and it sheds important light on the orig-
inal understanding of takings liability. 5 In Entick, the
King’s Chief Messenger and three other Messengers, acting
on the orders of the Secretary of State for the Northern De-
partment, entered into the home of John Entick, taking his
personal belongings. Id. at 808. The court determined that
the Messengers could be liable in tort to Mr. Entick, based

5 See Boyd v. United States, 116 U.S. 616, 626 (1886)

(“[Entick] is regarded as one of the permanent monuments
of the British [C]onstitution[] and is quoted as such by the
English authorities on that subject down to the present
time.”); United States v. Jones, 565 U.S. 400, 405 (2012)
(“[Entick was] undoubtedly familiar to every American
statesman at the time the Constitution was adopted . . . .”
(internal quotation marks omitted) (quoting Brower
v. Cnty. of Inyo, 489 U.S. 593, 596 (1989)).
DARBY DEVELOPMENT COMPANY, INC. v. US 7

on its conclusion that the Messengers’ actions were not au-

thorized by statute, because they were not conservators or
justices of the peace (the only officials with the authority to
issue such warrants). Id. at 817. The case stands for the
proposition, as understood close to ratification of the Fifth
Amendment, that the proper remedy for a government
agent’s unauthorized actions, if at all, was personal tort li-
ability, not redress by the Sovereign.
The panel majority’s decision is not consistent with this
historical understanding of the scope of takings liability.
IV
The panel majority’s approach, moreover, conflating
takings liability with tort liability, effectively rewrites the
Federal Tort Claims Act (“FTCA”). Recognizing the au-
thorization requirement for governmental liability, Con-
gress expressly waived sovereign immunity for certain
tortious conduct of government officers or employees in the
FTCA and thereafter in the Westfall Act, 28 § 2679(d), im-
munized those officers and employees from personal tort
liability when they acted within the scope of their employ-
ment. See also Osborn v. Haley, 549 U.S. 225, 238 (2007).
But the discretionary function exception of the FTCA pre-
cludes recovery for “[a]ny claim based upon an act or omis-
sion of an employee of the Government, . . . based upon the
exercise or performance or the failure to exercise or per-
form a discretionary function or duty.” 28 U.S.C. § 2680(a).
The Supreme Court has explained that “the purpose of
the exception is to prevent judicial second-guessing of leg-
islative and administrative decisions grounded in social,
economic, and political policy through the medium of an ac-
tion in tort,” and thus covers “only governmental actions
and decisions based on considerations of public policy.”
United States v. Gaubert, 499 U.S. 315, 323 (1991) (inter-
nal quotation marks and citations omitted)). If the claim
in this case were brought under the FTCA, the CDC’s
8 DARBY DEVELOPMENT COMPANY, INC. v. US

actions would clearly fall under this exception. See

Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531,
536 (1988).
The panel majority has effectively applied the FTCA
scope-of-duty standard to the takings context, see Darby,
112 F.4th at 1027 (“[W]e conclude that the CDC was acting
within the normal scope of its duties when it issued the Or-
der.”), and at the same time subverted the limited waiver
of sovereign immunity in the FTCA, as the discretionary
function exception (or other exceptions) would bar relief
under the FTCA here.
V
As a subordinate federal court, we cannot disregard Su-
preme Court precedent simply because the Court has not
spoken to this issue in recent years—“once the [Supreme]
Court has spoken, it is the duty of other courts to respect
that understanding of the governing rule of law.” Rivers
v. Roadway Express, Inc., 511 U.S. 298, 312 (1994); see also
James v. City of Boise, 577 U.S. 306, 307 (2016) (“[A]ny . . .
state or federal court[] is bound by this Court’s interpreta-
tion of federal law.”); State Oil Co. v. Khan, 522 U.S. 3, 20
(1997) (“[I]t is this Court’s prerogative alone to overrule one
of its precedents.”); Rodriguez de Quijas v. Shearson/Am.
Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of
this Court has direct application in a case, . . . the Court of
Appeals should follow the case which directly controls,
leaving to this Court the prerogative of overruling its own
decisions.”).
As discussed above, the Supreme Court has consist-
ently held that government officials’ unauthorized acts
cannot subject the government to takings liability. In so
doing, the Court has uniformly looked to whether the offi-
cial actually possessed the requisite authority to carry out
the challenged action, not whether that action was “within
the scope” of that official’s duties. This court is bound by
this precedent and has failed in its obligation to follow this
DARBY DEVELOPMENT COMPANY, INC. v. US 9

precedent. The panel majority’s opinion would work a sea

change in the government’s takings liability that is totally
unmoored from the historical understanding of the Takings
Clause and an unbroken line of Supreme Court precedent
for more than 100 years.
This case is, undoubtedly, of substantial importance.
As the government argued in its petition for en banc re-
hearing, “[i]f the panel decision were allowed to stand . . .
the consequences would extend far beyond this category of
cases. . . . It could make the United States vicariously lia-
ble for all sorts of conduct affecting property that the
United States is not empowered to take.” Pet. for En Banc
Reh’g at 15, Darby Dev. Co. v. United States, 112 F.4th
1017 (Fed. Cir. 2024) (No. 22-1929). As noted in my origi-
nal dissent, the panel majority opinion would “directly dis-
courag[e] adoption of legitimate government programs
because of the risk of takings liability in addition to injunc-
tive and declaratory relief.” Darby, 112 F.4th at 1038
(Dyk, J., dissenting).
I respectfully dissent from this court’s denial of the gov-
ernment’s petition for en banc rehearing.
 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.
______________________

STARK, Circuit Judge, dissenting from denial of petition for

rehearing en banc.
As Judge Dyk observes: “This case is, undoubtedly, of
substantial importance.” Dyk Dissent at 9. I’m not sure
anyone disagrees. The government argued in its petition
that the importance of this case is a reason we should re-
view it en banc, see Pet. at 3, and appellants did not re-
spond that the case lacks sufficient importance, see Resp.
at 3-4 (addressing other grounds argued by government);
see also FED. R. APP. P. 40(b)(2)(D) (requiring petition for
en banc review to state whether “proceeding involves one
or more questions of exceptional importance”); FED. CIR.
INTERNAL OPERATING PROCEDURE 13(2)(b) (stating en banc
action may be appropriate based on “[i]nvolvement of a
question of exceptional importance”). I believe the
2 DARBY DEVELOPMENT COMPANY, INC. v. US

exceptional importance of the issues presented in this case

warrants our collective consideration. Thus, I dissent from
the denial of the government’s petition.