Dimare Fresh, Inc. v. United States
808 F.3d 1301
Fed. Cir.2015Background
- FDA issued June 3 and June 7, 2008 warnings linking some raw red tomatoes to a Salmonella Saintpaul outbreak; later July 17, 2008 guidance disassociated tomatoes from the outbreak.
- Tomato Producers are Florida/South Georgia growers, packers, and shippers who sued after alleging market value loss from FDA warnings.
- Tomato Producers amended complaint alleging regulatory takings due to FDA publicity; claims court dismissed for lack of plausible regulatory takings claim.
- District/Claims Court outcome: dismissal under RCFC 12(b)(6); appellate review on takings jurisprudence standard.
- Court’s central task: whether FDA's press releases/briefing, even if not formal regulations, could constitute a regulatory taking under Penn Central.
- The panel preserves the public health rationale and notes the determination does not change Tomato Producers' rights to sell their tomatoes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FDA publicity can support a regulatory takings claim | Tomato Producers argue publicity had legal effect on their property value | FDA publicity lacks coercive or legal restrictions; no direct taking | No regulatory taking based on publicity; dismissal affirmed |
| Whether Penn Central framework applies to this factual scenario | Takings analysis should consider economic impact and investment-backed expectations | Public health actions without coercive restrictions fall outside compensable takings | Penn Central factors do not yield a taking; no regulatory taking |
Key Cases Cited
- A-1 Cigarette Vending, Inc. v. United States, 49 Fed. Cl. 345 (2001) (agency lacked authority; regulatory takings not shown when authority absent)
- Flowers Mill Assocs. v. United States, 23 Cl. Ct. 182 (1991) (agency action invalid to support taking where agency lacked regulatory power)
- NBH Land Co. v. United States, 576 F.2d 317 (Ct. Cl. 1978) (disclosure by government officials not a taking absent authorization or direct action)
- A & D Auto Sales, Inc. v. United States, 748 F.3d 1142 (Fed. Cir. 2014) (coercive government action can support takings liability even without statute/regulation)
- Yuba Goldfields, Inc. v. United States, 723 F.2d 884 (Fed. Cir. 1983) (government letters threatening enforcement can support takings claim)
- Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978) (ad hoc quasi-judicial factors; economic impact, investment-backed expectations, character of government action)
- Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005) (no single formula; takings depend on facts and context)
- Horne v. Dep’t of Agric., 135 S. Ct. 2419 (2015) (Takings jurisprudence eschews rigid formulae; relies on case-specific inquiry)
- Dimare Fresh, Inc. v. United States, 118 Fed. Cl. 455 (2014) (reference point for regulatory takings analysis in the federal circuit)