Glenn v. Tyson Foods ( 2022 )

Case: 21-40622 Document: 00516385029 Page: 1 Date Filed: 07/07/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
July 7, 2022
No. 21-40622 Lyle W. Cayce
Clerk
Rolandette Glenn; Idell Bell; Kerry Cartwright;
Tammy Fletcher; Laveka Jenkins; Kiesha Johnson;
Ronald Johnson; Daisy Williams; Danica Wilson; John
Wyatt; Crystal Wyatt; Clifford Bell, Individually and as
Personal Representative of the Estate of Beverly Whitsey,
Plaintiffs—Appellees,
versus
Tyson Foods, Incorporated; Jason Orsak; Erica
Anthony; Maria Cruz,
Defendants—Appellants,
consolidated with
_____________
No. 21-11110
_____________
Maria Yolanda Chavez, Individually and on behalf of Minor LC and
Estate of Jose Angel Chavez; Angel Chavez; Rita Elaine
Cowan, Individually and on behalf of the Estate of Thomas
David Cowan,
Plaintiffs—Appellees,
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versus
Tyson Foods, Incorporated, doing business as Tyson Foods;
Tyson Fresh Meats, Incorporated,
Defendants—Appellants.
Appeals from United States District Courts
for the Eastern and Northern Districts of Texas
USDC Nos. 20-CV-184, 21-CV-1184
Before Willett, Engelhardt, and Wilson, Circuit Judges.
Don R. Willett, Circuit Judge:
Congress enacted the first “federal officer removal statute” during
the War of 1812 to protect U.S. customs officials.1 New England states were
generally opposed to the war, and shipowners from the region took to suing
federal agents charged with enforcing the trade embargo against England.2
Congress responded by giving customs officials the right to remove state-
court actions brought against them to federal court.3 Since that time Congress
has given the right of removal to more and more federal officers. Today all
federal officers as well as “any person acting under that officer” are eligible.4
While the scope of federal officer removal has broadened, its purpose
1
See Elizabeth M. Johnson, Removal of Suits Against Federal Officers: Does the
Malfeasant Mailman Merit a Federal Forum?, 88 Colum. L. Rev. 1098, 1099 (1988); see
also Watson v. Philip Morris Cos., 551 U.S. 142, 147–49 (2007) (discussing the history of the
federal officer removal statute).
2
Watson, 551 U.S. at 147–49.
3
Id.4
28 U.S.C. § 1442(a)(1).
2
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remains the same: to give those who carry out federal policy a more favorable
forum than they might find in state court.5
In this case, we must decide whether Tyson Foods, Inc. was “acting
under” direction from the federal government when it chose to keep its
poultry processing plants open during the early months of the COVID-19
pandemic. Tyson argues that it was, and that the district courts erred in
remanding these cases back to state court. But the record simply does not
bear out Tyson’s theory. Tyson received, at most, strong encouragement
from the federal government. But Tyson was never told that it must keep its
facilities open. Try as it might, Tyson cannot transmogrify suggestion and
concern into direction and control. We AFFIRM the district courts’ orders
remanding these cases to state court.
I
A
When the COVID-19 pandemic began, the federal government
fretted that the nation’s food supply might be at risk. The same week that
President Trump declared a national emergency, he and other federal
officials held calls with state officials and business executives to exchange
information and discuss strategies. Dozens of businesses participated in these
calls, including representatives from Tyson, Whole Foods, Target, General
Mills, Costco, and Walmart.6 During these calls, the federal government
exhorted companies designated as “critical infrastructure” to keep operating
5
See Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 290 (5th Cir. 2020) (en
banc) (“Congress authorized . . . federal officials . . . to seek a federal forum rather than
face possibly prejudicial resolution of disputes in state courts.”).
6
Remarks by President Trump, Vice President Pence, and Members of the Coronavirus
Task Force in Press Briefing, The White House: Trump White House
Archives (Mar. 15, 2020), https://bit.ly/3FesI8H.
3
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even as many other companies sent their employees home.7 The federal
government also issued guidance encouraging employees in critical
infrastructure industries to keep working, and for everyone else to work from
home if possible and to avoid discretionary travel.
This federal guidance was not binding. But the State of Texas
apparently agreed with the federal government’s preference that companies
like Tyson should continue operating. With encouragement from Governor
Abbott and federal officials, Tyson printed out “Essential Employee
Verification” letters for its employees to show local law enforcement if
stopped, demonstrating that they were allowed to go to work.
Meat and poultry processing was not the only industry designated as
“critical infrastructure.” Everything from banks and auto-repair shops to
hotels and dentists received the same designation. But the federal
government’s coordination with the meatpacking industry was especially
close. Employees of the Food Safety and Inspection Service (FSIS), a
subsidiary of the United States Department of Agriculture (USDA), have
long been tasked with inspecting meatpacking operations. These inspections
are designed to ensure compliance with myriad federal laws and regulations
including the Federal Meat Inspection Act (FMIA)8 and the Poultry
Products Inspection Act (PPIA).9 FSIS inspections became more
complicated during the pandemic because they had to be completed in
person, often in close contact with Tyson employees. Tyson and the federal
government negotiated a detailed set of protocols designed to allow
7
Matt Noltemeyer, Trump Meets with Food Company Leaders, Food Bus. News
(Mar. 16, 2020), https://bit.ly/3t2fiXQ.
8
21 U.S.C. § 603 et seq.
9
Id. § 451 et seq.
4
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inspections to continue, while ensuring the safety of FSIS and Tyson
employees. The federal government also promised that it would try to
procure protective equipment (like face masks and gloves) for Tyson.
President Trump and other federal officers issued public comments
encouraging critical industries to keep operating and for their employees to
go to work. The President tweeted that the “Defense Production Act is in
full force, but [we] haven’t had to use it because no one has said NO!”10 Vice
President Pence likewise encouraged food industry workers: “show up and
do your job.”11
The federal government’s most overt act to keep meat and poultry
processing plants open was Executive Order 13917.12 That order delegated
authority to the Secretary of Agriculture to “take all appropriate action”
under Section 101 of the Defense Production Act (DPA) “to ensure that
meat and poultry processors continue operations consistent with the
guidance for their operations jointly issued by the CDC and OSHA.”13 The
USDA used this delegated authority to issue two letters, one to state
governments and one to businesses. The letter to businesses said that “meat
and poultry processing plants” “should utilize” guidance from the CDC
10
See Doina Chiacu, Trump Administration Unclear over Emergency Production
Measure to Combat Coronavirus, Reuters (Mar. 24, 2020), http://reut.rs/3rS3MN5.
11
Remarks by President Trump, Vice President Pence, and Members of the Coronavirus
Task Force in Press Briefing, The White House: Trump White House
Archives (Apr. 7, 2020), https://bit.ly/3pcdiZP.
12
Delegating Authority Under the Defense Production Act With Respect to Food Supply
Chain Resources During the National Emergency Caused by the Outbreak of COVID-19, 85
Fed. Reg. 26,313 (Apr. 28, 2020) (Executive Order 13917).
13
Id. at 26,313–14. “CDC” is short for the “Centers for Disease Control and
Prevention.” “OSHA” is short for the “Occupational Safety and Health
Administration.”
5
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and OSHA. It also said that closed meat processing plants “should” submit
documentation of their health and safety protocols and reopen “as soon as
they are able after implementing the CDC/OSHA guidance for the
protection of workers.” While this letter was nonbinding, it concluded by
noting that “action under the Executive Order and the Defense Production
Act is under consideration and will be taken if necessary.” Similarly, a
question-and-answer page posted on the USDA’s website reiterated that the
letter’s guidance was not mandatory, but that the agency was leaving the door
open to further action under the DPA if it became necessary. Apparently, it
never was. The USDA did not issue a DPA order to Tyson or any other
meatpacking company.
B
The plaintiffs in this case allege that they contracted COVID-19
while working at two Tyson facilities in Texas during the first few months of
2020. Some of them died as a result. They allege that Tyson failed to follow
applicable COVID-19 guidance by directing employees to work in close
quarters without proper protective equipment. They also allege that Tyson
knew some of its employees were coming to work sick with COVID-19 but
ignored the problem, and that Tyson implemented a “work while sick”
policy to keep the plant open. For example, they allege that Tyson
encouraged sick employees to come into work by offering a substantial cash
bonus for three months of perfect attendance.
The plaintiffs in each action filed suit in Texas state courts. Tyson
removed both cases to federal district court: Glenn to the Eastern District of
Texas, and Chavez to the Northern District of Texas. Both district courts
granted the plaintiffs’ motions to remand. Tyson appealed only the district
courts’ holdings that the federal officer removal statute was inapplicable,
forfeiting federal question jurisdiction. We consolidated the cases on appeal.
6
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II
Defendants invoking the federal officer removal statute must show
that: (1) they are a “person” within the meaning of the statute; (2) they acted
“pursuant to a federal officer’s directions”; (3) they assert a “colorable
federal defense”; and (4) there is “‘a causal nexus’ between the defendant’s
acts under color of federal office and the plaintiff’s claims.”14 The parties
agree that Tyson is a person within the meaning of the statute but disagree
about the other three elements.
We start—and end—with the second element: whether Tyson was
“acting under” a federal officer’s directions. While “[t]he words ‘acting
under’ are broad,” they are “not limitless.”15 It is not enough for a private
party to be “simply complying with the law.”16 A private party will only be
“acting under” a federal official if their actions “involve an effort to assist,
or to help carry out, the duties or tasks of the federal superior.”17 Such a
relationship “typically involves ‘subjection, guidance, or control.’”18
Tyson argues that it was “acting under” the directions of a federal
superior because, from the earliest days of the pandemic, various federal
officers directed it and other food suppliers to continue operations to avoid a
nationwide food shortage. But the record does not support Tyson’s position.
14
Latiolais, 951 F.3d at 291 (quoting Winters v. Diamond Shamrock Chem. Co., 149
F.3d 387, 396–400 (5th Cir. 1998)).
15
Watson, 551 U.S. at 147.
16
Id. at 152.
17
Id. (emphasis omitted).
18
Id. at 151 (quoting Webster’s New Int’l Dictionary 2765 (2d ed.
1953)).
7
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Tyson first relies on the federal government’s designation of the food
industry as “critical infrastructure.” Early in the pandemic, even as the
federal government was encouraging most people to work from home and
avoid discretionary travel, it encouraged employees in “critical
infrastructure industr[ies]” to keep working. This message was broadcast by
various federal officials, including Vice President Pence and the Department
of Agriculture. For example, Tyson points to a statement from the Vice
President telling food industry workers that the nation needed them “to show
up and do [their] job,” and promising that the government would work with
their employers to keep workplaces as safe as possible.19
But the federal government’s guidance to “critical infrastructure”
industries was nonbinding. State and local authorities remained the ultimate
decisionmakers on public safety matters. The list of critical infrastructure
industries was created by the Cybersecurity and Infrastructure Security
Agency (CISA), part of the Department of Homeland Security. CISA was
clear that it created its “list of ‘Essential Critical Infrastructure Workers’ to
help State and local officials as they work to protect their communities, while
ensuring continuity of functions critical to public health and safety, as well as
economic and national security.” Guidance from the White House was to the
same effect, instructing Americans to “[l]isten to and follow the directions
of your state and local authorities.”
Indeed, the food processing industry was just one of many industries
designated as “critical.” That diverse list included “nursing homes, . . .
doctors, weather forecasters, clergy, farmers, bus drivers, plumbers, dry
19
Remarks by President Trump, Vice President Pence, and Members of the Coronavirus
Task Force in Press Briefing, The White House: Trump White House
Archives (Apr. 7, 2020), https://bit.ly/3pcdiZP.
8
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cleaners, and many other workers.”20 Surely, “Congress did not deputize all
of these private-sector workers as federal officers.”21 Far from deputizing
huge swaths of the economy, the federal government’s critical infrastructure
designations amounted to strong advice to business and state and local
governments that certain industries should keep operating in spite of
COVID-19 risks.
Tyson tries to differentiate itself from these other private-sector
designations by arguing that its relationship with the federal government was
special. While Tyson has long worked closely with on-site inspectors from
the USDA’s Food Safety and Inspection Service, this cooperation grew
more complex during the pandemic. Tyson and the federal government
worked together to ensure that on-site inspections could continue while
mitigating the danger to Tyson employees and FSIS inspectors. The
government also suggested that it would try to help Tyson procure protective
equipment.
But this only shows that Tyson was subject to heavy regulation—not
that it was an agent of the federal government. Being “subject to pervasive
federal regulation alone is not sufficient to confer federal jurisdiction.”22
“And that is so even if the regulation is highly detailed and even if the private
firm’s activities are highly supervised and monitored.”23 The Court’s
20
Maglioli v. All. HC Holdings LLC, 16 F.4th 393, 406 (3d Cir. 2021) (holding that
CISA’s designation of nursing homes as critical infrastructure did meet § 1442(a)(1)’s
“acting under” requirement); Martin v. Petersen Health Operations, LLC, No. 21-2959,
2022 WL 2154870, at *1 (7th Cir. June 15, 2022) (same).
21
Maglioli, 16 F.4th at 406.
22
Buljic v. Tyson Foods, Inc., 22 F.4th 730, 739 (8th Cir. 2021) (holding that Tyson
Foods could not use § 1442(a)(2) to remove a suit against it to federal court).
23
Watson, 551 U.S. at 153.
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holding in Watson is instructive. In that case, the FTC had long conducted
tests on the tar and nicotine content of cigarettes, but stopped for cost
reasons.24 The tobacco manufacturer Philip Morris started running the tests
themselves “according to [Federal Trade Commission (FTC)]
specifications and permitting the FTC to monitor the process closely.”25
Indeed, the FTC published the results of these tests in annual reports to
Congress, just as it had when it ran the tests itself.26 Philip Morris argued that
because it carried out a task previously carried out by the government, it was
“acting under” a federal official.27 The Court disagreed. It distinguished
prior cases by noting that in most of them, the defendant was “helping the
Government to produce an item that it needs.”28 But Philip Morris had no
contract with or payment from the federal government.29 And while Philip
Morris argued in earnest that it was exercising delegated authority, it
produced no concrete evidence of a delegation.30 “[N]either Congress nor
federal agencies normally delegate legal authority to private entities without
saying that they are doing so.”31
If anything, Tyson has a much harder case to make than Philip Morris
did. At least the actions that Philip Morris took had previously been carried
out by the government. Not so with Tyson. Packaging and processing poultry
24
Id. at 154.
25
Id.26
Id. at 154–56.
27
See id.28
Id. at 153.
29
Id.30
See id. at 156–57.
31
Id. at 157.
10
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has always been a private task—not a governmental one. But in other
respects, Tyson is similarly situated to Philip Morris. While both were
subject to close regulation and supervision, they acted in their own interests
for profit. Neither acted as government contractors nor in a principal/agent
arrangement with the government.32
While Tyson is right that a voluntary relationship isn’t incompatible
with delegated federal authority, the cases it cites are inapposite because they
all involve defendants fulfilling government contracts. In Isaacson v. Dow
Chemical Co., the defendant was fulfilling a federal contract to produce
“Agent Orange” for the military.33 In St. Charles Surgical Hospital LLC v.
Louisiana Health Service & Indemnity Co., the defendant contracted to
provide health care coverage to federal employees.34 And Betzner v. Boeing
Co. involved perhaps the quintessential example of private parties carrying
out federal tasks: the defendant contracted to manufacture heavy bomber
aircraft pursuant to detailed military guidelines and under careful monitoring
and control.35 Packaging poultry for private parties is far afield from
assembling aircraft or manufacturing munitions for Uncle Sam. The problem
is not that Tyson’s relationship with the federal government was voluntary.
The problem is the absence of any evidence of delegated authority or a
principal/agent relationship at all.36
32
See id. at 156.
33
517 F.3d 129, 138 (2d Cir. 2008).
34
935 F.3d 352, 356 (5th Cir. 2019).
35
910 F.3d 1010, 1015 (7th Cir. 2018).
36
See Watson, 551 U.S. at 156 (noting the absence of “any contract, any payment,
any employer/employee relationship, or any principal/agent arrangement” between Philip
Morris and the government).
11
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Tyson has one final argument: that various communications from
federal officials made it clear that Tyson had to keep its plants open. But the
record does not support Tyson’s claim. Tyson points to a long list of
communications from the federal government including President Trump’s
proclamation declaring a national emergency, a conference call held in early
March between the President and dozens of companies, a presidential tweet,
guidance from the CDC and OSHA, and the Vice President’s statement
encouraging food industry employees to do their jobs. But none of these
communications constituted an “order” or a “directive.” Like the
designation of various industries as “critical infrastructure,” these
communications merely encouraged Tyson to stay open.
Tyson’s best piece of evidence of a federal directive was President
Trump’s invocation of the DPA in Executive Order 13917. But Executive
Order 13917 had no immediate legal effect. It merely delegated the
President’s DPA authority to the Secretary of Agriculture. And the
Secretary never saw fit to use that delegated authority. The USDA sent two
letters, one to state and local governments and one to private companies, that
“encouraged” meat and poultry plants to follow preexisting CDC and
OSHA guidance. The USDA’s question and answers webpage only
confirms that the letter was not an order. It stated that the Secretary would
exercise delegated DPA authority in the future “if necessary,” which it
never was.
III
From the earliest days of the pandemic all the way through the
issuance of Executive Order 13917, the federal government’s actions
followed the same playbook: encouragement to meat and poultry processers
to continue operating, careful monitoring of the food supply, and support for
state and local governments. Tyson was exhorted, but it was not directed.
12
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Because Tyson has not shown that it was “acting under” a federal officer’s
directions, we need not consider whether it meets the remaining elements of
the federal officer removal statute. The district courts’ judgments are
AFFIRMED.
13