Fields v. Brown

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS

No. 6:20-cv-00475

Michael Fields et al.,

Plaintiffs,

V.

Tommy Brown et al.,

Defendants.

ORDER

Defendants removed this personal-injury suit from the

County Court at Law of Panola County, Texas. Doc. 1. Now

before the court is plaintiffs’ motion to remand to state court

(Doc. 8). For the reasons set forth below, that motion is de-

nied.

Background

Plaintiffs Michael Fields, Vickie Grant, Jessica Matlock,

and Kelly Reese are former employees of Tyson Food’s meat-

packing plant in Carthage, Texas. Doc. 7 J 13. On April 2,

2020, Governor Greg Abbott enacted a stay-at-home order in

response to the COVID-19 pandemic. Id. J 14. But according

to plaintiffs, they were still “required to continue working at

the Tyson meatpacking plant in Carthage, Texas.” Id.

While working at the Carthage meatpacking plant during

the pandemic, plaintiffs allege that they—along with nearly

7,100 other Tyson employees—were exposed to and con-

tracted COVID-19. Id. 16-17. Asserting claims for negligence

and gross negligence, plaintiffs brought this lawsuit against

Tyson Foods, Inc., and Tommy Brown, Micah Fenton, and Fe-

licia Alexander, individual employees at Tyson who bore the

responsibility to administer “policies or procedures that

would help prevent the spread of COVID-19” at the plant. Id.

{ 16, 20-32. Specifically, plaintiffs claim that defendants failed

to “provide adequate precautions or protections to help

protect [their] employees from COVID-19,” including by not

providing proper personal protective equipment or imple-

menting social-distancing measures. Id. ¶ 15, 21.

On August 28, 2020, defendants removed to this court

from the County Court at Law of Panola County, Texas. Doc.

1. In their notice of removal, defendants alleged two bases for

federal jurisdiction in this case: the federal officer removal

statute, see 28 U.S.C. § 1442, and federal question jurisdiction

under 28 U.S.C. § 1331(a)(1). Id. Plaintiffs timely filed a motion

to remand. Doc. 8. Defendants responded, furnishing the ad-

ditional argument that plaintiffs waived their right to seek re-

mand in this case because they amended their complaint to

add Tyson Foods, Inc. as a defendant. Doc. 10.

Standards and analysis

As a threshold matter, plaintiffs did not waive their right

to seek remand in this case. On September 25, 2020—the same

day that they filed their motion to remand—plaintiffs filed an

amended complaint to add Tyson Foods, Inc. to this lawsuit.

Doc. 7. Defendants briefly argue that this amounts to a waiver

of the right to seek remand, relying primarily on the Fifth Cir-

cuit’s decision in Johnson v. Odeco Oil and Gas Co. Doc. 10 at 2-

3 (relying on 864 F.2d 40 (5th Cir. 1989)).

But Johnson is inapposite to this case. In Johnson, the Fifth

Circuit held that the plaintiff had waived the right to remand

because he both “participate[d] in the conduct of the action”

by taking part in discovery for nearly a year and “fail[ed] to

object promptly to removal” because he filed his motion to

remand after defendants filed a motion for summary judg-

ment. Johnson, 864 F.2d at 42; see also Harris v. Edward Hyman

Co., 664 F.2d 943, 944 (5th Cir. 1981) (holding that plaintiff

waived her right to seek remand because she “fail[ed] to as-

sert promptly her objections to the defects in the petition and

. . . proceed[ed] with discovery”). Under Fifth Circuit law,

whether a plaintiff has waived her right to remand depends

on “the extent of a plaintiff’s conduct in the federal

proceedings.” Johnson, 864 F.2d at 42 (citing Lirette v. N.L.

Sperry Sun, Inc., 820 F.2d 116, 118 (5th Cir. 1987)).

Here, plaintiffs have not participated in the proceedings to

the extent that their right to seek remand has been waived.

Unlike the plaintiff in Johnson, plaintiffs here have not taken

part in any discovery and have not otherwise acquiesced to

the court’s jurisdiction. And their motion to remand was

promptly filed within the thirty-day window after removal.

Defendants’ waiver argument is meritless.

Having reviewed the parties’ remaining arguments, the

court finds that the federal officer removal statute confers ju-

risdiction in this case. Ordinarily, the well-pleaded complaint

rule bars defendants from removing to federal court when the

only jurisdictional hook is a federal defense. See Louisville &

Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908). But the fed-

eral officer removal statute carves out an exception to the

well-pleaded complaint rule, “permit[ting] an officer to re-

move a case even if no federal question is raised . . . so long as

the officer asserts a federal defense in the response.” Latiolais

v. Huntington Ingalls, Inc., 951 F.3d 286, 290 (5th Cir. 2020). Un-

like typical motions to remand, removal under § 1442(a)

“should not be frustrated by a narrow, grudging interpreta-

tion” of the statute. Willingham v. Morgan, 395 U.S. 402, 407

(1969). Rather, § 1442(a) is written broadly “to cover all cases

where federal officers can raise a colorable defense” and “to

have such defenses litigated in the federal courts.” Id. at 406-

07.

Section 1442 allows “[a]ny officer of the United States . . .

or person acting under him” to remove a case from state court

“for any act under color of such office.” 28 U.S.C. § 1442(a).

The right to remove therefore extends to defendants who are

acting under the direction of a federal officer. Such removal

requires the defendant to show that (1) it is a person for pur-

poses of the statute; (2) it was “acting under” a federal officer’s

directions; (3) there was a connection or association between

those directions and the plaintiff’s claims; and (4) it can assert

a colorable federal defense. Id. at 296.

As with any motion to remand, “it is the defendant’s bur-

den to establish the existence of federal jurisdiction over the

controversy.” Winters, 149 F.3d at 397. Because the parties

here do not dispute that defendants are “persons” under the

federal officer removal statute, the court will only address the

remaining three prongs.

First, defendants must establish that they were “acting un-

der” the directions of a federal officer. Under the federal of-

ficer removal statute, a “private person’s acting under must

involve an effort to assist, or to help carry out, the duties or

tasks of the federal superior.” Watson, 551 U.S. 142, 152 (2007).

“Although the words ‘acting under’ are undoubtedly broad,

the Supreme Court has clarified that they must refer to a rela-

tionship that involves acting in a certain capacity, considered

in relation to one holding a superior position or office.”

Zeringue v. Crane Company, 846 F.3d 785, 792 (5th Cir. 2017).

Defendants’ notice of removal points to two possible

sources of direction from a federal officer: designation as crit-

ical infrastructure, and President Trump’s April 28, 2020 ex-

ecutive order.

Defendants first claim that, because Tyson Foods was des-

ignated as “critical infrastructure” by the federal government,

they were acting under a federal officer’s directions. The Pa-

triot Act empowers the federal government to designate par-

ticular industries as “critical infrastructure,” meaning that

they “provide essential services that underpin American soci-

ety.” Doc. 10-4 at 2. When a national emergency was declared

in response to the COVID-19 pandemic on March 13, 2020,

Tyson Foods, along with other components of the Food and

Agriculture Sector, was designated as critical infrastructure.

Doc. 10-1 ¶ 8.

As defendants note, after this designation, Tyson Foods

interacted with multiple government agencies, namely by

being “in close contact with officials at the U.S. Department of

Homeland Security and the U.S. Department of Agriculture

regarding continued operations.” Doc. 10 at 11. Tyson Foods

also participated in a meeting between President Trump and

other food industry executives “to discuss the stability of the

supply chain.” Id.

Part of the collaboration between Tyson Foods and the

federal government involved it working directly with the

United States Food Safety and Inspection Service (FSIS). Id. at

7. Tyson Foods communicated regularly, albeit informally,

with FSIS Administrator Paul Kiecker. Doc. 10-1 ¶ 16. The

FSIS had employees staffed onsite at meatpacking plants—in-

cluding those operated by Tyson Foods—to ensure that they

maintained operations. Id. Moreover, “Congress allocated ad-

ditional funding to the FSIS to help maintain FSIS presence at

facilities so that operations could continue.” Doc. 10-1 ¶ 18.

Finally, Tyson Foods worked with both the Department of

Agriculture and the Federal Emergency Management Agency

to receive personal protective equipment for its employees. Id.

¶ 14.

Plaintiffs contend that the critical-infrastructure designa-

tion is insufficient to conclude that defendants were “acting

under” the directions of a federal officer. According to plain-

tiffs, all that defendants’ evidence proves is “that they com-

municated with federal regulators and that Tyson Foods was

subject to federal regulation.” Doc. 13 ¶ 6-7. Plaintiffs specifi-

cally cite to Watson v. Phillip Morris, where the Supreme Court

held that private entities that are merely subject to govern-

ment regulation cannot remove under the federal officer re-

moval statute. See Watson, 551 U.S. at 152 (“In our view, the

help or assistance necessary to bring a private person within

the scope of the statute does not include simply complying

with the law.”).

But unlike Watson, the defendants here exhibited “an effort

to help assist, or carry out, the duties and tasks of the federal

superior.” See id. Defendants did so by working directly with

the Department of Agriculture and the FSIS to guarantee that

there was an adequate food supply.

Other district courts in this circuit have recognized that

“[t]he ‘acting under’ element requires a close relationship be-

tween the contractor and government involving detailed reg-

ulation, monitoring, and supervision.” Benson v. Russell’s

Cuthand Creek Ranch, Ltd., 183 F. Supp. 3d 795, 802-03 (E.D.

Tex. 2016) (citing Watson, 551 U.S. at 153). Both the Depart-

ment of Agriculture and the FSIS closely monitored Tyson

Food’s meatpacking plants, staffing some employees onsite

during the pandemic. Doc. 10-1 ¶ 16. Congress even allocated

additional funding to FSIS to ensure that they had the re-

sources to adequately supervise meatpacking plants like the

one at issue in this case. Id. ¶ 18.

Accordingly, the court now finds that, based on the criti-

cal-infrastructure designation, defendants were “acting un-

der” the directions of federal officials when the federal gov-

ernment announced a national emergency on March 13, 2021.1

Second, defendants must show a connection or association

between the federal officer’s directions and plaintiffs’ claims.

The parties dispute the applicable standard for this prong.

Plaintiffs, citing the Fifth Circuit’s decision in Winters v. Dia-

mond Shamrock Chemical Company, argue that there must be a

“causal nexus” between plaintiffs’ claims and the directions

that defendants received from a federal officer. 149 F.3d 387

(5th Cir. 1998).

But that standard no longer governs. In 2020, the Fifth Cir-

cuit, sitting en banc, reinterpreted the 2011 statutory

1 The parties also contest whether President Trump’s April 28, 2020

executive order confers jurisdiction under the federal officer removal stat-

ute. But because the court has now held that defendants were acting under

the direction of multiple federal agencies since March 13, 2020, it need not

also determine whether President Trump’s executive order amounted to

directions from a federal officer.

amendments to § 1442 in Latiolais v. Huntington Ingalls. Inc.

Those amendments “alter[ed] the requirement that a remova-

ble case be ‘for’ any act under color of federal office and per-

mitt[ed] removability of a case ‘for or relating to’ such acts.”

Latiolais, 951 F.3d at 291. That addition, the Latiolais court held,

“broadened federal officer removal to actions, not just causally

connected, but alternatively connected or associated, with acts

under color of federal office.” Id. at 292.

The court now agrees that the more relaxed standard from

Latiolais controls, and defendants need only prove that there

is a connection or association between the federal officer’s di-

rections and the alleged conduct.

Such a connection exists here. Plaintiffs’ complaint alleges

that defendants failed to create adequate safety precautions in

light of the pandemic by not administering personal protec-

tive equipment or implementing social-distancing measures.

Doc. 7 ¶ 15, 21. That failure, plaintiffs contend, led to their

contracting COVID-19. Id. The purported act under color of

federal authority is the decision to maintain operations de-

spite the pandemic. Naturally, the choice of what safety pre-

cautions should be taken—such as whether personal protec-

tive equipment should be provided or what social-distancing

measures should be adopted—connects to the broader deci-

sion to keep the plant open during the pandemic in the first

place. See Doc. 10 at 14.

Finally, defendants must assert a colorable federal de-

fense. It is not necessary for a defendant “virtually to win his

case before he can have it removed.” Jefferson Cty., AL v. Acker,

527 U.S. 423, 431 (1999). Rather, “an asserted federal defense

is colorable unless it is immaterial and made solely for the

purpose of obtaining jurisdiction or wholly insubstantial and

frivolous.” Latiolais, 951 F.3d at 297 (cleaned up). “Certainly,

if a defense if plausible, it is colorable.” Id.

In their notice of removal, defendants raised two federal

defenses. First, they argue that the Poultry Products

Inspection Act expressly preempts plaintiffs’ state-law claims.

Second, they claim that there is conflict preemption between

plaintiffs’ claims and President Trump’s April 28 executive

order paired with the Defense Production Act.

The Poultry Products Inspection Act (PPIA) contains an

express preemption clause that prohibits states or territories

from imposing

[r]equirements within the scope of this chapter with re-

spect to premises, facilities and operations of any offi-

cial establishment which are in addition to, or different

than those made under this chapter . . . .”

21 U.S.C. § 467e. In its motion, plaintiffs argue that the PPIA

does not provide a colorable federal defense because their

claims do not fall within the scope of the preemption clause.

Plaintiffs point specifically to a later portion of the preemption

clause, which states:

Marking, labeling, packaging, or ingredient require-

ments . . . in addition to, or different than, those made

under this chapter may not be imposed by any State or

Territory or the District of Columbia . . . .”

Id. In plaintiffs’ view, the PPIA only expressly preempts state

laws that cover marking, labeling, packaging, or ingredients,

so its common-law tort claims would not be included.

However, as defendants note, plaintiffs here are only

cherry-picking one portion of the preemption clause. They os-

tensibly ignore the opening of the clause, which prohibits

state-law requirements “with respect to premises, facilities

and operations.” See id.

Moreover, the Supreme Court has repeatedly held “that a

provision pre-empting state ‘requirements’ pre-empt[s] com-

mon-law duties.” Riegel v. Medtronic, Inc., 552 U.S. 312, 324

(2008); see Bates v. Dow Agrosciences, LLC, 544 U.S. 431, 444

(2005) (“[T]he term ‘requirements’ . . . reaches beyond positive

enactments, such as statutes and regulations, to embrace

common-law duties.”). These holdings, at the very least, ren-

der defendants’ preemption defense under the PPIA plausi-

ble. To be sure, this does not reflect the court’s ultimate opin-

ion on the merits of this defense. But the court need not make

such a determination at this stage of the proceedings; all that

is necessary is that a federal defense is colorable.

Plaintiffs alternatively argue that “because the PPIA does

not contain a private right of action” for plaintiffs’ claims,

preemption is improper. Doc. 8 at 16. But plaintiffs here rely

on Rogers v. Tyson Foods, a case that requires a private right of

action for complete preemption, which is distinct from the ex-

press preemption theory that defendants advance. See Rogers

v. Tyson Foods, Inc., 308 F.3d 785, 790 (7th Cir. 2002) (“[C]om-

plete preemption can only exist where, inter alia, the federal

statute provides a private right of action.”). Accordingly, the

court now finds that defendants have put forth a colorable

federal defense under the PPIA, thereby satisfying the federal

officer removal test laid out in Latiolais?

Because defendants have established federal jurisdiction

under the federal officer removal statute, it is not necessary to

determine whether there is federal question jurisdiction as

well.

Conclusion

For the foregoing reasons, plaintiffs’ motion to remand

(Doc. 8) is denied.

So ordered by the court on February 11, 2021.

[ial BARKER

United States District Judge

? Given that the PPIA’s express preemption clause provides a colora-

ble federal defense under § 1442, there is no need to address whether de-

fendants’ conflict preemption theory under President Trump’s April 28,

2020 executive order is also colorable.

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