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Dimare Fresh, Inc. v. United States

United States Court of Appeals, Federal Circuit

October 28, 2015

DIMARE FRESH, INC., DIMARE RUSKIN, INC., DIMARE JOHNS ISLAND, INC., BUTLER FARMS, INC., CIRCLE C PRODUCE, LLC, FLOWERS FARMS, LLC, GREGORY ENTERPRISES, LLC, HIGH HOPE FARMS, LLC, HOPKINS FARMS, LLC, FRED JACKSON, DBA JACKSON FARMS, DAN JONES, JUNIPER TOMATO GROWERS, INC., JWM FARMS, LLC, MOBLEY GREENHOUSE INVESTMENTS, LLC, DALE MURRAY, GREG MURRAY, DBA MURRAY FARMS, PATTERSON FARM, INC., QUALITY PRODUCE, LLC, SK ENTERPRISES OF NORTH FLORIDA, INC., TOWNSEND BROTHERS FARMS, INC., TWO FEATHERS FARMS, INC., GARGIULO, INC., DMB PACKING CORP., ARTESIAN FARMS INCORPORATED, KUZZENS, INC., FARM OP, INC., WEST COAST TOMATO, LLC, MICHAEL BOREK FARMS, LLC, EAST COAST BROKER'S AND PACKERS, INC., A FLORIDA CORPORATION, C/O GERARD A. MCHALE, JR. AS TRUSTEE, DIEHL AND LEE FARMS, FRANK DIEHL, DBA FRANK DIEHL FARMS, ORA DIEHL, Plaintiffs-Appellants
v.
UNITED STATES, Defendant-Appellee

Page 1302

[Copyrighted Material Omitted]

Page 1303

Appeal from the United States Court of Federal. Claims in No. 1:13-cv-00519-LJB, Senior Judge Lynn J. Bush.

M. STEPHEN TURNER, Broad & Cassel, Tallahassee, FL, argued for plaintiffs-appellants. Also represented by DAVID K. MILLER.

ERIC LAUFGRABEN, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., FRANKLIN E. WHITE, JR.; DARETIA HAWKINS, Office of the General Counsel, United States Department of Health and Human Services, Washington, DC.

WILLIAM S. BILENKY, MansonBolves, P.A., Tampa, FL, for amici curiae The Florida Tomato Exchange, The Florida Fruit and Vegetable Association.

BAYLEN LINNEKIN, North Bethesda, MD, for amici curiae Keep Food Legal Foundation, Baylen Linnekin.

Before WALLACH, BRYSON, and HUGHES, Circuit Judges.

OPINION

Page 1304

Wallach, Circuit Judge.

Plaintiffs-Appellants (" Tomato Producers" or " Appellants" ) appeal the decision of the United States Court of Federal Claims (" Claims Court" ) dismissing their Amended Complaint pursuant to Rule 12(b)(6) of the Rules of the United States Court of Federal Claims (" RCFC" ). The Claims Court dismissed the Amended Complaint on the ground that press releases issued by the Food and Drug Administration (" FDA" or " Government" ), which warned consumers of a possible link between Appellants' tomatoes and an outbreak of Salmonella Saintpaul (" salmonella" ), did not effect a regulatory taking. See Dimare Fresh, Inc. v. United States, 118 Fed.Cl. 455 (2014). For the reasons set forth below, we affirm.

I. Background

A. FDA Press Releases

Between April 23 and June 1, 2008, there were fifty-seven reported cases of salmonellosis, an infection caused by the salmonella bacteria. Subsequently, the FDA, federal and state agencies, and food industry trade associations began an investigation to determine the source of the contamination. On June 3, 2008, the FDA issued a press release alerting consumers that the salmonella outbreak " appears to be linked" to the consumption of " raw red plum, red Roma, or round red tomatoes." [1] J.A. 34. In that press release, the FDA also stated that " the source of the contaminated tomatoes may be limited to a single grower or packer or tomatoes from a specific geographic area" and that it was working " diligently . . . to quickly determine the source and type of the contaminated tomatoes." J.A. 34.

On June 7, 2008, the FDA released a second press release, informing the public that during the course of its investigation, it used " traceback[2] and other distribution pattern information" to identify specific geographic sources where tomatoes were safe to consume.[3] (footnote added). J.A. 35.

Page 1305

On June 13, 2008, the FDA conducted a media briefing through its then--Associate Commissioner for Foods, Dr. David Acheson. Dr. Acheson stated the FDA suspected the contaminated tomatoes had been shipped from Florida or Mexico, and red plum, red Roma, and red round tomatoes were " incriminated with the outbreak." J.A. 40. Dr. Acheson, however, emphasized that the FDA had only issued a warning to consumers, and had not requested that any producers voluntarily recall tomatoes because the FDA had not " identified the particular source" of the salmonella outbreak. J.A. 48. Dr. Acheson also stated the FDA was still in the process of conducting an " ongoing investigation," and therefore the information gathered thus far was to remain " confidential." J.A. 42.

On July 17, 2008, the FDA issued a third press release announcing that " fresh tomatoes now available in the domestic market are not associated with the current outbreak." J.A. 62. " As a result, the agency [] remov[ed] its June 7 warning against eating certain types of red raw tomatoes." J.A. 62. Although the link between the salmonella outbreak and the Appellants' tomatoes was eventually disproved, the Tomato Producers allege that all or almost all of the value of the perishable tomatoes was destroyed due to a decrease in market demand for the Appellants' tomatoes. Appellants' Br. 19.

B. The Tomato Producers' Amended Complaint

The Tomato Producers are " growers, packers, and shippers of tomatoes in Florida and South Georgia." Dimare, 118 Fed.Cl. at 456 (internal quotation and citation marks). The Tomato Producers initially filed this suit as a putative class action on July 29, 2013. Supplemental Appendix 1.[4] Upon the Government's motion to dismiss the Complaint, the Tomato Producers filed an Amended Complaint on ...


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