The opinion
Case: 21-40818 Document: 00516493739 Page: 1 Date Filed: 10/03/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
October 3, 2022
No. 21-40818 Lyle W. Cayce
Clerk
Michael Fields; Vickie Grant; Jessica Matlock; Kelly
Reese,
Plaintiffs—Appellants,
versus
Tommy Brown; Micah Fenton, Felicia Alexander; Tyson
Foods, Incorporated,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:20-CV-475
Before Clement, Duncan, and Wilson, Circuit Judges.
Per Curiam:*
The district court denied plaintiffs’ motion to remand, concluding
federal officer removal jurisdiction existed in this case. That conclusion runs
counter to this court’s later holding in Glenn v. Tyson Foods, Inc., 40 F.4th
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-40818 Document: 00516493739 Page: 2 Date Filed: 10/03/2022
No. 21-40818
230 (5th Cir. 2022). For the same reasons we found federal officer removal
jurisdiction lacking in Glenn, we vacate the district court’s orders dismissing
plaintiffs’ claims and denying remand to state court, and remand for further
proceedings.
I.
Employees of Tyson Foods, Incorporated sued three Tyson managers
in Texas state court alleging negligence and gross negligence based on the
managers’ failure to institute protective measures against COVID-19 at the
Tyson plant in Carthage, Texas. The managers removed the case to the
United States District Court for the Eastern District of Texas, asserting
federal officer removal jurisdiction, 28 U.S.C. § 1442(a)(1), and federal
question jurisdiction, 28 U.S.C. § 1331. Plaintiffs filed an amended
complaint adding Tyson as a defendant and moved to remand. Tyson and its
managers responded in opposition and moved to dismiss under Federal Rule
of Civil Procedure 12(b)(6).
The district court denied plaintiffs’ motion to remand, concluding
that “the federal officer removal statute confer[red] jurisdiction.” 1 The
court then dismissed plaintiffs’ claims against the managers, determining
that plaintiffs failed to assert that the managers owed them a duty distinct
from any duty owed by Tyson. 2 Later, the district court granted Tyson’s
1
More specifically, the court concluded that “defendants were ‘acting under’ the
directions of federal officials when the federal government announced a national
emergency on March 13, 202[0],” and included Tyson’s operations within its “critical-
infrastructure designation.” The court further found a connection “between the federal
officer’s directions and the alleged conduct” and that the managers had asserted a
colorable defense, i.e., preemption under the Poultry Product Inspection Act (PPIA).
2
Plaintiffs moved for reconsideration of both orders. In the alternative, plaintiffs
asked the court to certify its order denying remand for interlocutory appeal. The district
court denied reconsideration but granted plaintiffs’ request for certification of its remand
2
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No. 21-40818
motion to dismiss as well, concluding plaintiffs failed to assert a claim against
Tyson because the Poultry Product Inspection Act (PPIA) and the Pandemic
Liability Protection Act (PLPA) each independently foreclosed plaintiffs’
claims. 3 Plaintiffs timely appealed.
II.
Plaintiffs contend the district court erred in denying their motion to
remand because neither federal officer removal jurisdiction nor federal
question jurisdiction exists. Plaintiffs also assert that the district court erred
in granting defendants’ motions to dismiss because it lacked jurisdiction over
the case. Defendants respond that the district court should be affirmed in all
respects. Defendants do not address federal question jurisdiction,
presumably because the district court did not reach their alternative
argument for removal based on that ground. As discussed below, we likewise
decline to address federal question jurisdiction for the first time on appeal.
But we agree with plaintiffs that federal officer removal jurisdiction is lacking.
As stated above, in Glenn, 40 F.4th 230, this court addressed federal
officer removal jurisdiction and whether Tyson was “acting under” direction
of the federal government in keeping its poultry processing plants open
during the early months of the COVID-19 pandemic. We concluded that
Tyson was not acting under direction of the federal government and that
federal officer removal jurisdiction therefore did not exist over claims
materially identical to those asserted by plaintiffs here. Id. at 232. We
reasoned that although the food industry was designated as “critical
order. This court, however, denied plaintiffs permission to file an interlocutory appeal.
Fields v. Brown, No. 21-90021, ECF 21, (5th Cir. June 21, 2021).
3
Between the managers’ dismissal and Tyson’s dismissal, the Texas Legislature
enacted the PLPA. Tyson filed a supplemental motion to dismiss pursuant to the PLPA,
and the district court dismissed plaintiffs’ claims against Tyson based on both laws.
3
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No. 21-40818
infrastructure,” “the federal government’s guidance to critical
infrastructure industries was nonbinding.” Id. at 234–35 (internal quotation
marks omitted). Thus, “[t]ry as it might, Tyson [could not] transmogrify
suggestion and concern into direction and control.” Id. at 232.
Rather than regurgitate Glenn’s analysis, we simply state that Glenn
controls the outcome in this case as well. Federal officer removal jurisdiction
is lacking. Id. at 237. However, because the district court did not address
whether federal question jurisdiction exists as to the plaintiffs’ claims in its
order denying remand, we return the case for the court’s consideration of
that issue, in the light of Glenn and other recent precedent, in the first
instance.
* * *
We VACATE the district court’s orders dismissing plaintiffs’ claims
and denying remand to state court. This case is REMANDED to the
district court for further proceedings consistent with this opinion.
VACATED AND REMANDED.
4