In the United States Court of Federal Claims

No. 13-519 C

(Filed September 18, 2014)

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DIMARE FRESH, INC., et al.,

 Plaintiffs,

 v.

THE UNITED STATES,

 Defendant.

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No Plausible Claims for Regulatory

Takings Arising from Warnings to

Consumers of a Possible Link between

Tomatoes and Salmonella Outbreak.

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M. Stephen Turner, Tallahassee, FL, for plaintiffs.

Eric E. Laufgraben, United States Department of Justice, with whom were

Stuart F. Delery, Assistant Attorney General, Robert E. Kirschman, Jr., Director,

Franklin E. White, Jr., Assistant Director, Washington, DC, for defendant. 

Darieta M. Hawkins, United States Department of Health and Human Services

Office of General Counsel, Washington, DC, of counsel. 

__________________________

OPINION

__________________________

Bush, Senior Judge.

Currently before the court is defendant’s motion to dismiss the complaint

brought under Rule 12(b)(6) of the Rules of the United States Court of Federal

Claims (RCFC). The motion has been fully briefed, and oral argument was neither
requested by the parties nor deemed necessary by the court. For the reasons stated

below, defendant’s motion is granted.

BACKGROUND1

I. Warning the Public Not to Buy Certain Tomatoes

Plaintiffs are “growers, packers, and shippers of tomatoes in Florida and

South Georgia.” Compl. at 2. The Food and Drug Administration (FDA)

responded to an outbreak of salmonella-related illnesses in June 2008. Id. ¶¶ 8-15. 

Two warnings were issued to the public, on June 3 and June 7, 2008. Id. ¶¶ 9-15. 

The warnings linked the salmonella outbreak to certain types of tomatoes. Id.

Plaintiffs in this case were substantially invested in the production, distribution

and bulk sale of tomatoes at the time the FDA warnings linking salmonella and

tomatoes were issued. Id. ¶ 2. 

The FDA also held a media briefing on June 13, 2008, again linking the

salmonella outbreak to certain types of tomatoes. Compl. ¶¶ 16-19. All of these

warnings had a burdensome effect on the market for plaintiffs’ tomatoes. Id. ¶ 21.

Although any link between plaintiffs’ tomatoes and the salmonella outbreak was

eventually disproved and the FDA lifted its warning against tomatoes on July 17,

2008, all or almost all of the value of plaintiffs’ perishable tomatoes was destroyed

by the collapse in the market for tomatoes triggered by the FDA’s warnings. Id.

¶¶ 6, 20-21, 24, 30-32, 34, 37. Plaintiffs characterize the FDA warnings as

regulatory takings of their property. Id. ¶¶ 1, 30-31, 35-40.

According to plaintiffs, the FDA “had no confirmation” of the link between

their tomatoes and the salmonella outbreak and plaintiffs further allege that the

FDA’s analysis of the outbreak was flawed. Compl. ¶¶ 22-23. Plaintiffs aver that

their tomatoes “presented no danger, defect or threat to consumers.” Id. ¶ 25. 

Plaintiffs also contend that the FDA delayed its revocation of the warnings against

tomatoes for over a month “[d]espite accumulating evidence to the contrary.” Id.

1

/ All references to the complaint are to the amended complaint filed April 16, 2014,

unless otherwise noted. The facts presented in the complaint are undisputed for the purpose of

resolving defendant’s motion to dismiss. Def.’s Mot. at 2 n.1. The court makes no findings of

fact in this opinion.

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¶ 22.

II. Excerpts from the FDA Warnings Issued on June 3 and June 7, 2008

Plaintiffs attached the FDA warnings to their complaint. The warning

issued on June 3, 2008 stated in relevant part that:

The Food and Drug Administration is alerting consumers

in New Mexico and Texas that a salmonellosis outbreak

appears to be linked to consumption of certain types of

raw red tomatoes and products containing raw red

tomatoes. . . . 

The specific type and source of tomatoes are under

investigation. However, preliminary data suggest that

raw red plum, red Roma, or round red tomatoes are the

cause. At this time, consumers in New Mexico and

Texas should limit their tomato consumption to tomatoes

that have not been implicated in the outbreak. These

include cherry tomatoes, grape tomatoes, tomatoes sold

with the vine still attached, and tomatoes grown at home.

. . . .

In order to ensure that consumers can continue to enjoy

tomatoes that are safe to eat, FDA is working diligently

with the states, the Centers fo[r] Disease Control and

Prevention, the Indian Health Service, and various food

industry trade associations to quickly determine the

source and type of the contaminated tomatoes. As more

information becomes available, FDA will update this

warning.

Compl. Ex. 1.

The second warning, issued by the FDA on June 7, 2008, expanded the

advisory against certain tomatoes to consumers nationwide. In relevant part, this

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warning stated that:

The Food and Drug Administration is expanding its

warning to consumers nationwide that a salmonellosis

outbreak has been linked to consumption of certain raw

red plum, red Roma, and red round tomatoes, and

products containing these raw, red tomatoes.

FDA recommends that consumers not eat raw red Roma,

raw red plum, raw red round tomatoes, or products that

contain these types of raw red tomatoes unless the

tomatoes are from the sources listed below. If unsure of

where tomatoes are grown or harvested, consumers are

encouraged to contact the store where the tomato

purchase was made. Consumers should continue to eat

cherry tomatoes, grape tomatoes, and tomatoes sold with

the vine still attached, or tomatoes grown at home.

On June 5, using traceback and other distribution pattern

information, FDA published a list of states, territories,

and countries where tomatoes are grown and

harvested which have not been associated with this

outbreak. This updated list includes: Arkansas,

California, Georgia, Hawaii, North Carolina, South

Carolina, Tennessee, Texas, Belgium, Canada,

Dominican Republic, Guatemala, Israel, Netherlands,

and Puerto Rico. . . .

FDA recommends that retailers, restaurateurs, and food

service operators not offer for sale and service raw red

Roma, raw red plum, and raw red round tomatoes

unless they are from the sources listed above. Cherry

tomatoes, grape tomatoes, and tomatoes sold with the

vine still attached, may continue to be offered from

any source.

Compl. Ex. 2.

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III. Excerpts from the FDA Media Briefing on June 13, 2008

Plaintiffs provide a twenty-six page transcript of the FDA media briefing

held on June 13, 2008. The court references here the portions of this transcript

necessary for context. The participants were welcomed to a briefing on the FDA’s

“salmonella in tomatoes investigation.” Compl. Ex. 3 at 1. An FDA spokesman

noted that “as . . . yet there is no specific geographic location identified” for the

tomatoes that were the source of the salmonella outbreak. Id. at 3.

Apparently Florida had been the subject of much speculation as a possible

source for the salmonella, so an FDA official addressed the “complicated” issue of

the safety of Florida tomatoes. Compl. Ex. 3 at 3 (“I’m not wanting to put the

focus on Florida specifically, but this is an opportunity for us to explain what the

status of Florida is, because it is a little complicated.”). Parts of Florida were still

suspected, but the northern part of Florida was apparently considered safe. Id. at

4, 18. As for other producing states, consumers were urged to consider tomatoes

on the shelf that came from states deemed safe by the FDA to be safe for purchase

and consumption. Id. at 4-5.

When asked where most of the tomatoes consumed in the United States

originated at the time of the salmonella outbreak, an FDA official stated that

Mexico and Florida supplied most of those tomatoes. Compl. Ex. 3 at 8. The

official also stated that he thought it unlikely that the salmonella had come from

two different geographic locations, because of the identical genetic material found

in the salmonella outbreak. Id. at 9. In addition, the official noted that there were

no FDA investigators traveling to Mexico to investigate the outbreak. Id. at 11.

The FDA made it clear that it had only issued a warning, not a recall, of

tomatoes from states not yet listed as safe. Compl. Ex. 3 at 12. The legal

consequences of a warning are that sellers of tomatoes are not required to pull

their tomatoes from store shelves, even if these tomatoes originated from a state

still under investigation as a possible source for the salmonella. Id. at 13. Instead,

the focus of the FDA warnings was to educate consumers about which tomatoes

were safe to eat and which were not safe to eat. Id. at 12-13.

IV. Procedure

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After plaintiffs’ amended complaint was filed on April 16, 2014, defendant

filed a motion to dismiss under RCFC 12(b)(6) on May 5, 2014. Soon thereafter,

plaintiffs filed a motion to join an additional plaintiff, which was granted by the

court on May 27, 2014. At defendant’s request, however, the court ordered that

the claims of this additional plaintiff be subject to the government’s motion to

dismiss. Thus, defendant’s motion to dismiss addresses all claims before the court

in this case and is ripe for decision.

DISCUSSION

I. Jurisdiction

The Tucker Act delineates this court’s jurisdiction. 28 U.S.C. § 1491

(2012). This statute “confers jurisdiction upon the Court of Federal Claims over

the specified categories of actions brought against the United States.” Fisher v.

United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc) (citations omitted). 

These include claims “founded either upon the Constitution, or any Act of

Congress or any regulation of an executive department, or upon any express or

implied contract with the United States, or for liquidated or unliquidated damages

in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). 

The court must determine, at the outset, whether plaintiffs’ claims fall

within the “specified categories of actions brought against the United States” that

are within this court’s jurisdiction. Fisher, 402 F.3d at 1172. The Tucker Act

concurrently “waives the Government’s sovereign immunity for those actions.” 

Id. However, if jurisdiction for a cause of action is lacking this court must dismiss

the suit. RCFC 12(h)(3). The court may, and should, raise the issue of its own

jurisdiction sua sponte when it appears in doubt. Arctic Corner, Inc. v. United

States, 845 F.2d 999, 1000 (Fed. Cir. 1988) (citation omitted). 

II. Standard of Review for a Motion Brought under RCFC 12(b)(6)

It is well-settled that a complaint should be dismissed under RCFC 12(b)(6)

“when the facts asserted by the claimant do not entitle him to a legal remedy.” 

Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002). When

considering a motion to dismiss for failure to state a claim, “the allegations of the

complaint should be construed favorably to the pleader.” Scheuer v. Rhodes, 416

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U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457

U.S. 800 (1982). The court must also inquire whether the complaint meets the

plausibility standard described by the United States Supreme Court, i.e., whether it

adequately states a claim and provides a “showing [of] any set of facts consistent

with the allegations in the complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 563 (2007) (citations omitted).

III. Analysis

A. Do Plaintiffs’ Claims Sound in Tort?

A court’s inquiry into the nature of a plaintiff’s claim “does not end with the

words of the complaint, however instructive they may be, for [the court] still must

‘look to the true nature of the action in determining the existence or not of

jurisdiction.’” James v. Caldera, 159 F.3d 573, 579 (Fed. Cir. 1998) (quoting

Katz v. Cisneros, 16 F.3d 1204, 1207 (Fed. Cir. 1994)). Here, plaintiffs in their

complaint avoid any mention of negligence, misrepresentation, or failure to

observe a duty of care on the part of the FDA. Nevertheless, plaintiffs

characterize the actions of the FDA as lacking “confirmation that any tomatoes

were involved in the illness outbreak,” as evincing “a lack of understanding of

industry distribution channels,” and as “fail[ing] to correct the public warnings . . .

for over a month.” Compl. ¶¶ 22-23. Although plaintiffs describe their claims as

demanding just compensation for a regulatory taking, a more obvious legal theory

of recovery would have been to argue that the FDA negligently misrepresented the

danger of consuming plaintiffs’ tomatoes and that the United States is liable to

plaintiffs as a result of the government’s negligence.2

As the court discusses infra, plaintiffs have not cited to any cases where a

consumer warning issued by a federal agency constituted a regulatory taking. A

much more typical analysis for such a factual scenario is whether an inaccurate

consumer warning or some other release of inaccurate information triggered tort

liability on the part of the government. See, e.g., Mizokami v. United States, 414

F.2d 1375, 1377-78 (Ct. Cl. 1969) (discussing potential tort liability for an

2

/ In plaintiffs’ original complaint, the growers candidly discussed the barriers to bringing

a tort claim based on the FDA’s warnings; the discretionary nature of the warnings renders the

FDA “typically immune from tort liability.” Orig. Compl. ¶ 6.

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inaccurate notice of contamination in spinach by reviewing cases where negligent

misrepresentations on the part of the government had been alleged); Banfi Prods.

Corp. v. United States, 40 Fed. Cl. 107, 139-42 (1997) (holding that the

government’s misstatement as to the danger of a contaminant in wine did not rise

to the level of a negligent request to recall the wine); Lance Indus. v. United

States, 3 Cl. Ct. 762, 775-76, 779-80 (1983) (holding that the government’s

dissemination of an inaccurate rumor regarding a pharmaceutical did not trigger

liability for negligence); see also H.F. Allen Orchards v. United States, 749 F.2d

1571, 1576 (Fed. Cir. 1984) (“[T]he negligent disclosure of information by the

government, when the government had no contractual duty to supply such

information may sound in tort.”) (citation omitted). Although a tort claim founded

on the FDA’s warnings at issue here would likely have been futile if brought in a

district court for the reasons stated in plaintiffs’ original complaint, see supra note

2, the facts alleged in the amended complaint appear to be have far greater

resonance in tort jurisprudence than in takings cases.

The complaint could be read either to present claims sounding in tort, or to

present claims which seek to extend the limits of takings jurisprudence. The court

will follow the parties’ lead in reviewing the sufficiency of the takings claims

presented in the complaint, but expresses some doubt at the outset as to its

jurisdiction over claims that might more accurately be characterized as tort claims. 

The court notes that it is well established that if plaintiffs’ claims are truly tort

claims this court has no jurisdiction over their suit. 28 U.S.C. § 1491(a)(1);

Somali Dev. Bank v. United States, 508 F.2d 817, 820 (Ct. Cl. 1974). 

B. Plaintiffs’ Regulatory Takings Claims Are Not Plausible

Plaintiffs allege that the warnings issued by the FDA regarding a possible

connection between their tomatoes and the salmonella outbreak “caused the loss of

all or substantially all the value of Plaintiffs’ property . . . [;] [t]his action

appropriated a benefit to the Government and the public at the expense of the

Tomato Farmers and Producers.” Compl. ¶ 37. Thus, they argue that the “FDA’s

action constitutes a regulatory taking of the Plaintiffs’ perishable tomatoes.” Id.

¶ 38. Just compensation, based on the fact that “all economic value was lost due

to the collapse of the market for [plaintiffs’] tomatoes,” is allegedly due each of

the plaintiffs under the authority of the Fifth Amendment of the United States

Constitution. Id. ¶¶ 30, 40.

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Defendant argues that the effect of the FDA warnings on the market for

plaintiffs’ tomatoes does not constitute a regulatory taking. The government relies

on cases which have denied takings claims founded on pronouncements by the

government which, although they may have caused financial consequences for the

plaintiffs, lacked the requisite “legal effect” to rise to the level of a regulatory

taking. See Def.’s Mot. at 6 (“Courts routinely reject takings claims when, as in

this case, the alleged Government action does not have any legal effect,

notwithstanding any allegations concerning the practical, financial impact of the

alleged action.”) (citing cases). Defendant’s arguments are persuasive, and a brief

recitation of the cited cases proves the point.

This court considered a similar claim when tobacco vending machine

owners asserted a temporary regulatory taking arising from the notice and

promulgation of pending FDA regulations banning most tobacco sales from

vending machines. A-1 Cigarette Vending, Inc. v. United States, 49 Fed. Cl. 345,

348-49 (2001), aff’d sub nom. Brubaker Amusement Co. v. United States, 304 F.3d

1349 (Fed. Cir. 2002). In A-1 Cigarette Vending, letters and pamphlets informing

businesses about impending tobacco vending machine regulations did not

constitute regulatory takings because “[o]nly a Government regulatory act that

actually restricts property may effectuate a taking.” Id. at 356 & n.15 (citations

omitted). When the United States Court of Appeals for the Federal Circuit

considered these regulatory takings claims upon appeal, the Federal Circuit agreed

with the lower court and held that tobacco vending machine regulations which had

not yet gone into effect did not effect a taking of the plaintiffs’ property rights in

vending machine contracts. Brubaker, 304 F.3d at 1358. Thus, pronouncements

and promulgated regulations which had not yet had any legal effect on the

plaintiffs did not effect a regulatory taking of their property interests.

 

In another case somewhat analogous to the one at bar, the publicized intent

of Air Force officials to take adjoining properties by eminent domain to enlarge an

Air Force base, notwithstanding the consequences of these statements on the real

estate market, was insufficient to effect a taking of any property rights of the

landowner plaintiffs in NBH Land Co. v. United States, 576 F.2d 317, 319 (Ct. Cl.

1978). In yet another case, a Federal Aviation Administration (FAA)

“Determination of Hazard to Air Navigation,” which determined that a proposed

building near an airport runway would create a hazard, was not found to be a

regulatory taking because the ruling was advisory and did not affect the property

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owner’s legal right to construct a building on its property. Flowers Mill Assocs. v.

United States, 23 Cl. Ct. 182, 189-90 (1991). Both of these cases show that public

statements by government officials are not sufficient, by themselves, to effect a

regulatory taking, even if these statements profoundly affect the market for the

plaintiffs’ properties.

Flowers Mill is particularly instructive because of the advisory nature of the

“Determination of Hazard” issued by the FAA. As the court noted, there might

indeed be great economic impact on the property owner because of the publicized

ruling of the FAA. Flowers Mill, 23 Cl. Ct. at 189. The court remarked, too, that

the FAA’s “Determination of Hazard” could “interfere with [the plaintiff’s]

distinct, investment-backed expectations.” Id. Nonetheless, the court concluded

that “the FAA action cannot be the basis of a Fifth Amendment taking because of

the voluntary nature of the regulatory scheme.” Id. (citation omitted). The

summary of the holding in that case provides a concise rejection of regulatory

takings claims which are founded on warnings provided to the public which are

merely advisory in nature:

Plaintiff’s taking claim is based on the practical effect of

the FAA [Determination of Hazard to Air Navigation]. 

While there may be practical consequences to an FAA

finding of hazard which present obstacles to desired

development (e.g., adverse impact on availability of

financing and casualty insurance coverage), the FAA

determination is advisory only and has no enforceable

legal effect. For this reason it cannot be considered the

type of governmental action necessary to sustain a Fifth

Amendment taking claim. Accordingly, plaintiff has

failed to state a claim upon which relief against the

United States can be granted.

Flowers Mill, 23 Cl. Ct. at 183.

Thus, from these cases cited by the government a general principle or rule

may be discerned. A regulatory takings claim is not plausible and cannot proceed

when the government action at issue has no legal effect on the plaintiff’s property

interest. Advisory pronouncements, even those with significant financial impact

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on the marketplace, are not enough to effect a taking of property under the Fifth

Amendment.

Plaintiffs’ attempts to disprove or escape this rule are unavailing. First,

plaintiffs state that the FDA’s advisories regarding their tomatoes were

“equivalent [in effect] to a hold on sales of the tomatoes until they perished.” Pls.’

Resp. at 13 (citing Yancey v. United States, 915 F.2d 1534, 1539-43 (Fed. Cir.

1991)). The court cannot agree. There was no ban on the sale of plaintiffs’

tomatoes equivalent to the quarantine of poultry at issue in Yancey. There is an

obvious distinction between an advisory announcement which affects market sales

and a quarantine which prohibits sales. Plaintiffs have failed to allege any

plausible legal effect on their property interests occasioned by the FDA advisories.

Second, plaintiffs attempt to distinguish the FDA’s advisory function

regarding food safety from the cases cited by defendant which involved advisories

or statements issued by the government that had no legal effect. Plaintiffs allege,

for example, that the FDA “had the power to seize the tomatoes or enjoin their

sale, or bring criminal proceedings, and presumably would use this power if its

warnings were not respected.” Pls.’ Resp. at 18 n.5. The complaint does not

allege, however, that the FDA exercised any of these powers to effect the taking of

plaintiffs’ tomatoes. Only the FDA advisories are blamed for the taking of

plaintiffs’ property interests. Compl. ¶¶ 32, 37. These FDA advisories fall within

the rule of government actions that have no legal effect on property interests and

that do not constitute regulatory takings.

Third, plaintiffs argue that it is not necessarily legal effect, but practical

consequences that can create a taking. See Pl.’s Resp. at 14 (“The proper focus is

on practical cause and effect. If government action is ‘functionally equivalent’ to

a physical seizure, it can be a taking.”) (citation omitted). In plaintiffs’ view,

“[g]overnment action that intends to and foreseeably does cause loss of property

value can be a taking even if not legally coercive.” Id. (citations omitted). 

Furthermore, according to plaintiffs, the FDA advisories were coercive, at least to

some degree:

The FDA’s actions obviously had a coercive effect on

the market, even if not coercive against any third person

in particular. While the government warning continued

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in effect, no one would risk buying such tomatoes for

resale to the public. . . . Even if the government’s action

is viewed as instigating a boycott by potential buyers, the

intended and direct result (a market shutdown) was

tantamount to coercion, as [the] FDA knew that no one

would assume the risk of buying or selling food under its

warning.

Id. at 14 n.3.

Unfortunately for plaintiffs, their attempt to eviscerate the rule that must be

discerned in Brubaker, NBH Land, A-1 Cigarette Vending and Flowers Mill is

unsupported by relevant authority. The cases cited by defendant specifically

demonstrate that public statements and advisories by the government are not

regulatory takings if they have no legal effect on property interests. None of

plaintiffs’ cited cases address this issue, and plaintiffs’ attempts to distinguish

defendant’s cases, Pls.’ Resp. at 16-18, are not persuasive.

Finally, the court must agree with defendant that plaintiffs’ regulatory

takings claims would require “independent actions of consumers [and retailers

declining to buy plaintiffs’ tomatoes] to be attributed to the Government.” Def.’s

Reply at 13. The court is aware of no caselaw which would support such a theory

of recovery. Although a wide range of government actions may give rise to

regulatory takings, plaintiffs have not cited any cases which hold that press

releases and consumer advisories, by themselves, can constitute regulatory

takings. Plaintiffs’ regulatory takings claims must be dismissed for failure to state

a claim upon which relief may be granted.

CONCLUSION

Accordingly, it is hereby ORDERED that:

(1) Defendant’s Motion to Dismiss, filed May 5, 2014, is GRANTED;

(2) The Clerk’s Office is directed to ENTER final judgment in favor of

defendant, DISMISSING the complaint with prejudice; and

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(3) No costs.

/s/ Lynn J. Bush

LYNN J. BUSH

Senior Judge

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