The U.S. Justice Department says this fall's government shutdown is partly to blame for a delay in a $40 million lawsuit that tomato growers filed against the government for losses in 2008 when officials erroneously named tomatoes in a salmonella outbreak later linked to Mexican hot peppers.

Attorneys from the U.S. Justice Department requested and received their second two-month extension for filing a response to the growers’ complaint, citing delays related to the shutdown of the federal government in October.

Florida attorney Frank Baker is representing the tomato growers and did not object to the government’s second request for more time. He declined to comment further on the case.

The government’s answer to the tomato lawsuit is now due Jan. 24.

The Justice Department also blamed the absence of a “litigation report” from the Department of Health and Human Services for the delay, according to court documents.

“Preparation of the litigation report requires significant coordination between the Food and Drug Administration and the Centers for Disease Control (and Prevention), in order to investigate the allegations set forth in the complaint. This coordination was delayed, in part, because relevant personnel were not permitted to work from Oct. 1 to Oct. 16 during the government shutdown,” according to the request for an extension.

The Justice Department attorney assigned to the case is also bogged down with work on at least six other federal court cases as well as cases pending in the Court of International Trade that have recently been transferred to him, according to the document.

In the complaint, the tomato growers contend that the FDA’s erroneous naming of tomatoes as the source for a salmonella outbreak later linked to hot peppers from Mexico entitles them to $40 million from the government under the eminent domain clause of the Constitution’s Fifth Amendment.

Referred to as the “takings clause” in the tomato growers’ lawsuit, the provision in the Constitution requires government to pay fair compensation when taking property for public use. However, the property doesn’t have to be used by the public. Rather, it must be used or disposed of in such a manner as to benefit the public welfare or public interest.

The individual tomato growers who filed the case are seeking class action status. They want reimbursement for all U.S. tomato growers who suffered losses from the 2008 spring crop because warnings from the FDA cautioned consumers to not eat tomatoes from certain regions.

The growers are not technically suing the FDA, rather they are suing the federal government, Baker said.

According to the lawsuit, retailers and foodservice operators canceled orders when the FDA issued the warnings during the summer of 2008. Growers contend that tomato prices dropped from $18-$19 to $4 per box, with some growers saying they had to sell their 2008 spring tomato crop for as low as 50 cents per box.