Brubaker Amusement Co., Inc. v. U.S.
| Decision Date | 15 July 2002 |
| Docket Number | No. 01-5083.,No. 01-5070.,No. 01-5120.,No. 01-5080.,No. 01-5084.,01-5070.,01-5080.,01-5083.,01-5084.,01-5120. |
| Citation | 304 F.3d 1349 |
| Parties | BRUBAKER AMUSEMENT CO., INC., Pavlic Vending Service, Inc., Automated Services, Inc., B&G Enterprises, Ltd., A-1 Cigarette Vending, Inc., A&B Cigarette Service, Inc., A&H Vending Co., Inc., A. Van Brackel & Sons, Inc., Ace Vending Company, Adams & Adams, Inc., Advanced Vending Co., Advanced Cigarette Service, Aero Merchandising Corporation, Al Faini Vending, Inc., All Star Amusements, Alliance Vending, Inc., Anders Vending Service, Anderson Games Co., Inc., Apple Vending Co., Inc., Atlas Vending, Automatic Music & Vending Corporation, Automatic Refreshment Service, Inc., Automatic Vending Service Corporation, Automatic Merchandising Co., James A. Lewis d/b/a B&H Vendors, Ballard Vendors, Becker Enterprises, Big State Vending Co., Inc., Blue Chip Vending Co., Bob's Music & Cigarette Vending, Inc., C&N Sales Co., Inc., Chuck's Cigarette & Vending, Cigarette Vending Service of Dallas, Inc., Class A Vending, Coin-Operated Vending Co., Colonial Vending Company, Comprehensive Vending Sales, Ct's Vending, Inc., Dean Superior Vending Co., D.C. Vending Company, Inc., Dicarlo Vending Co., Dollar, Vending Company, Edward J. Zarick, Inc. (doing business as All-Star Vending), Ellis Amusement, Inc., Empire Smokes, Inc., Fred Totera Vending, Inc., General Vending Services, Inc., Happy House Amusements, Hazelwood Corporation, Hillman Vending Co., Inc., Hughes Music Company I.T. Vending & Novelty Corporation, Isle Vending, Inc., J&V Coin Machine Co., J.S. Vending, Inc., Jre, Inc. (doing business as FM Vending), K&R Services, Inc., Kay-Cee Vending, Inc., Kenton Novelty Co., Inc., Larry's Amusement & Vending Co., Lowell Vending Co., Inc., M.J. White, Inc., Mannie's Vending, Mark V. Hanks Cigarette Vending, Melo-Tone Vending, Inc., Melody Vending Service, Mendota Valley Amusement, Inc., Miami Valley Automated Associated, Inc., Miller Amusement & Vending Co., Modern Cigarette Service, N.W. Services, Inc., Newman Amusement, Inc., Newport Music Co., Inc., Northern Amusement, Inc., Ohio Vending Machine, Inc., Owen Music and Games, Paramount Vending, Inc., Penn Triple S t/a Penn Vending Company, Piedmont Bottling & Vending Co., Pioneer Vending, Inc., Pride Vending, Inc., PSI Vending II, Quality Entertainment Company, Reliable Vending Service, Inc., Rendezvous Music & Vending, Roy George Music & Vending Corporation, Royal Vending Company, Russel-Hall Amusements & Vending, Shaffer Services, Inc., Stansfield Vending, Inc., State Music Distributors, Inc., Suburban Vending, Superior Vending Corporation, T.D. Rowe Corporation, Total Service Corporation, VGI Vending, Inc., Video Distributors, Inc., W.L. Perry Music Co., Inc., Wayne Vending Corporation, Western Automatic Music, Inc., Williams Enterprises, Inc., Krueger Vending Services, Brian Suemnicht (doing business as Home Service Vending Company), and Anderson Vending & Coffee Service, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Federal Circuit |
Douglas B. McFadden, McFadden & Shoreman, P.C., of Washington, DC, argued for plaintiffs-appellants. With him on the brief was John M. Shoreman.
Mark A. Melnick, Assistant Director, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were Stuart E. Schiffer, Acting Assistant Attorney General; and David M. Cohen, Director. Of counsel on the brief were Katherine M. Kelly, Trial Attorney, Department of Justice; Michael M. Landa, Acting Chief Counsel; and Karen E. Schifter, Associate Chief Counsel, Food and Drug Administration, Rockville, MA.
John D. Echeverria, Environmental Policy Project, Georgetown University Law Center, of Washington, DC, for amici curiae The American Cancer Society, et al.
Before MICHEL, BRYSON, and GAJARSA, Circuit Judges.
Opinion for the court filed by Circuit Judge GAJARSA. Opinion filed by Circuit Judge MICHEL, concurring.
This is a consolidated appeal of three cases, A-1 Cigarette Vending Inc., v. United States, No. 01-5120, B&G Enterprises, Ltd., v. United States, No. 01-5080, and Brubaker Amusement Co. v. United States, Nos. 01-5070, -5083, and -5084. The appellants, owners and operators of tobacco vending machine businesses, appeal the dismissal of their complaints by the United States Court of Federal Claims. They seek just compensation for the alleged temporary regulatory taking of their property, their vending machine placement contracts, by the Food and Drug Administration ("FDA") tobacco regulations. They allege that their property was taken in violation of the Fifth Amendment of the United States Constitution. Because we agree with the trial court that the challenged tobacco regulations were never in effect and enforced, we affirm. In so doing, we note that the Supreme Court's recent pronouncement on the availability of temporary takings claims does not affect our conclusion, as the absence of government enforcement alone sufficiently resolves this appeal. See Tahoe Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002).
In 1995, the FDA asserted jurisdiction to regulate tobacco products under its authorizing statute, the Food, Drug and Cosmetic Act, 21 U.S.C. § 301 et seq. The FDA proposed regulations concerning tobacco products on August 11, 1995, and they were published in final form on August 28, 1996, after notice and comment. Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents, 61 Fed. Reg. 44,396 (Aug. 28, 1996) (). Among other things, the issued regulations banned the sale of cigarettes and smokeless tobacco from vending machines in venues accessible to people under the age of 18. The term "the vending machine regulations" will be hereinafter used to identify the segment of the regulations that restricted the sale of tobacco products from vending machines to locations where no one under the age of 18 was present or allowed to enter at any time, namely those codified at 21 C.F.R. § 897.16(c). The tobacco regulations were to become effective at different times, with the vending machine regulations set to become effective on August 28, 1997. All of the regulations were challenged in the United States District Court for the Middle District of North Carolina as exceeding the legal and regulatory authority of the FDA. Coyne Beahm, Inc. v. FDA, 966 F.Supp. 1374 (M.D.N.C.1997). On April 25, 1997, the district court ordered, among other things, that the FDA stay implementation of those regulations set to take effect on August 28, 1997, which included the vending machine regulations, pending further orders by the court. Id. at 1400-01. On March 21, 2000, the Supreme Court decided FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000), holding generally that the FDA had no authority to regulate tobacco products and, more specifically, that the FDA was statutorily prohibited from doing so. The regulations were therefore invalid.
On December 15, 1997, the appellants in this case filed a complaint with the Court of Federal Claims ("the trial court") claiming that the tobacco vending machine regulations had effected a categorical taking of their property without just compensation because the contracts for the placement of their cigarette vending machines were terminated as a result of the regulations. The trial court stayed the action pending the outcome of Brown & Williamson. Subsequent to the Supreme Court's decision, the appellants amended their complaint to allege a temporary taking and a taking based on the states' implementation of the vending machine regulations as agents of the federal government in order to obtain grants from the Department of Health and Human Services. The latter argument, premised on the agency theory, was rejected in an interlocutory appeal brought in one of the presently consolidated cases, B&G Enterprises, Ltd. v. United States, 220 F.3d 1318 (Fed.Cir.2000), cert. denied, 531 U.S. 1144, 121 S.Ct. 1079, 148 L.Ed.2d 956 (2001) ("B&G Enterprises I"), because this court found that there was no manifestation of an intent to create an agency relationship by either the federal government or the State of California. Id. at 1323. The claim based on the agency argument was eventually dismissed voluntarily by the plaintiffs in the remaining two cases, leaving only the temporary takings claims.
With only the temporary takings claim remaining, the plaintiffs moved to conduct discovery to ascertain whether or not the government had specifically enforced the regulations. The trial court denied plaintiffs' motions to conduct discovery and granted the government's motion to dismiss, which was premised on the Supreme Court's decision in Brown & Williamson. The Supreme Court specifically held that the FDA does not have regulatory authority over tobacco products. Brown & Williamson, 529 U.S. at 133, 120 S.Ct. 1291. The government argued that this lack of authority to regulate tobacco products precludes recovery because a takings claim cannot stand when there was no authority for the act. The government also argued that the FDA never enforced the vending machine regulations, and therefore there was no temporary taking. Finally, the government argued, there was no temporary taking as a matter of substantive law.
Three cases were joined in this consolidated appeal: A-1 Cigarette Vending, Inc. v. United States, No. 01-5120, B&G Enterprises, Ltd., v. United States, No. 01-5080 ("B&G Enterprises II"), and Brubaker Amusement Co. v. United States, Nos. 01-5070, -5083, and -5084 ("Brubaker Amusement"). In A-1...
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