Dimare Fresh, Inc. v. United States
118 Fed. Cl. 455
Fed. Cl.2014Background
- Plaintiffs are Florida/South Georgia growers, packers, and shippers of tomatoes who claim the FDA’s June 2008 public warnings (June 3 and June 7 advisories and a June 13 media briefing) linked tomatoes to a Salmonella outbreak and destroyed the market for their perishable tomatoes.
- FDA advisories recommended consumers avoid certain raw red tomatoes (Roma, plum, round) and encouraged retailers not to offer them; FDA later lifted the advisory on July 17, 2008, after the link was disproved.
- Plaintiffs allege the advisories had the economic effect of destroying all or substantially all value of their tomatoes and characterize the advisories as a regulatory taking under the Fifth Amendment.
- Plaintiffs contend FDA lacked confirmation and acted on flawed analysis and delayed revocation despite contrary evidence; they did not plead negligence explicitly.
- The United States moved to dismiss under RCFC 12(b)(6) arguing the advisories were advisory/public statements without legal effect and thus cannot constitute a regulatory taking; the Court of Federal Claims granted the motion and dismissed with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FDA advisories that depressed market value can constitute a regulatory taking | FDA warnings functionally equaled a market hold that destroyed tomato value; practical/foreseeable coercive effect suffices for a taking | Advisories were advisory only, had no legal effect or compulsion, and any market reaction was independent third-party conduct | Court: Dismissed takings claim — advisories without legal effect cannot support a regulatory taking |
| Whether consumer/retailer reactions can be attributed to the government to create takings liability | Government intended and foresaw market shutdown; such consequences are attributable and tantamount to coercion | Any loss resulted from independent decisions by buyers/retailers, not a government-imposed restriction | Court: Reactions of third parties cannot be treated as government action creating a taking |
| Whether plaintiffs’ claims are properly characterized as takings vs. tort | Plaintiffs frame claims as takings seeking just compensation under the Fifth Amendment | Government argues the facts fit negligence/misrepresentation tort theories (over which this court lacks jurisdiction) and advisories are discretionary and typically tort-immunized | Court: Expressed doubt that claims are takings; noted tort characterization would fall outside court’s Tucker Act jurisdiction, but evaluated and rejected the takings theory on the merits |
| Whether precedent allows takings recovery for government advisories or warnings | Plaintiffs cited functional equivalence and cases where government action led to economic loss | Defendant cited cases refusing takings recovery where statements/advisories had no enforceable legal effect | Court: Followed precedent rejecting takings claims based on advisory/public statements without legal effect |
Key Cases Cited
- Fisher v. United States, 402 F.3d 1167 (Fed. Cir. 2005) (Tucker Act jurisdiction principles)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading plausibility standard)
- A-1 Cigarette Vending, Inc. v. United States, 49 Fed. Cl. 345 (2001) (regulatory pronouncements without legal effect do not constitute a taking)
- Brubaker Amusement Co. v. United States, 304 F.3d 1349 (Fed. Cir. 2002) (affirming A-1 Cigarette Vending)
- Flowers Mill Assocs. v. United States, 23 Cl. Ct. 182 (1991) (advisory FAA determination had no enforceable legal effect and could not support a taking)
- NBH Land Co. v. United States, 576 F.2d 317 (Ct. Cl. 1978) (public statements of intent to condemn did not effect a taking)
- Yancey v. United States, 915 F.2d 1534 (Fed. Cir. 1991) (distinguished by court as involving a quarantine rather than advisory guidance)
- Mizokami v. United States, 414 F.2d 1375 (Ct. Cl. 1969) (discussing government-issued contamination notices in tort context)
- H.F. Allen Orchards v. United States, 749 F.2d 1571 (Fed. Cir. 1984) (negligent disclosure by government sounds in tort)
- Somali Dev. Bank v. United States, 508 F.2d 817 (Ct. Cl. 1974) (Court of Federal Claims lacks jurisdiction over tort claims)