Petition for Writ of Certiorari — Tyson Foods, Inc., et al., Petitioners v. Rolandette Glenn, et al.

APPENDIX

TABLE OF APPENDICES

Appendix A

Opinion, United States Court of Appeals

for the Fifth Circuit, Glenn v. Tyson

Foods, Inc., No. 21-40622 (July 7, 2022)..... App-1

Appendix B

Order, United States Court of Appeals for

the Fifth Circuit, Glenn v. Tyson Foods,

Inc., No. 21-40622 (Aug. 29, 2022) ............ App-15

Appendix C

Order, United States District Court for

the Eastern District of Texas, Glenn

v. Tyson Foods, Inc., No. 9:20-cv-184

(Aug. 12, 2021) ........................................... App-17

Appendix D

Order, United States District Court for

the Northern District of Texas, Chavez

v. Tyson Foods, Inc., No. 3:21-CV-1184

(Oct. 27, 2021) ............................................ App-37

Appendix E

Relevant Statutory Provision.................... App-40

28 U.S.C. § 1442 ................................. App-40

App-1

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________

No. 21-40622

________________

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,

v.

Plaintiffs-Appellees,

TYSON FOODS, INC.; JASON ORSAK; ERICA ANTHONY;

MARIA CRUZ,

Defendants-Appellants.

________________

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,

v.

TYSON FOODS, INC. DOING BUSINESS AS TYSON FOODS;

TYSON FRESH MEATS, INC.,

Defendants-Appellants.

App-2

________________

Filed: July 7, 2022

________________

Before Willett, Engelhardt, and Wilson,

Circuit Judges.

________________

OPINION

________________

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

remains the same: to give those who carry out federal

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).

App-3

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

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.”).

App-4

Walmart. 6 During these calls, the federal government

exhorted

companies

designated

as

“critical

infrastructure” to keep operating 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

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.

6

7 Matt Noltemeyer, Trump Meets with Food Company Leaders,

Food Bus. News (Mar. 16, 2020), https://bit.ly/3t2fiXQ.

App-5

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

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

8 21 U.S.C. § 603 et seq.

9 Id. § 451 et seq.

See Doina Chiacu, Trump Administration Unclear over

Emergency Production Measure to Combat Coronavirus, Reuters

(Mar. 24, 2020), http://reut.rs/3rS3MN5.

10

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.

11

12 Delegating Authority Under the Defense Production Act With

Respect to Food Supply Chain Resources During the National

App-6

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 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

Emergency Caused by the Outbreak of COVID-19, 85 Fed. Reg.

26,313 (Apr. 28, 2020) (Executive Order 13917).

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.”

13

App-7

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.

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

14 Latiolais, 951 F.3d at 291 (quoting Winters v. Diamond

Shamrock Chem. Co., 149 F.3d 387, 396-400 (5th Cir. 1998)).

App-8

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.

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.

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)).

App-9

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 cleaners, and many other workers.” 20

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.

19

20 Maglioli v. All. HC Holdings LLC, 16 F.4th 393, 406 (3d Cir.

2021) (holding that CISA’s designation of nursing homes as

App-10

Surely, “Congress did not deputize all of these privatesector 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

critical infrastructure did meet § 1442(a)(1)’s “acting under”

requirement); Martin v. Petersen Health Operations, LLC, No. 212959, 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).

App-11

monitored.” 23 The Court’s 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

23 Watson, 551 U.S. at 153.

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.

App-12

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 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

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).

App-13

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

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

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).

App-14

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. 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.

App-15

Appendix B

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________

No. 21-40622

________________

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,

v.

Plaintiffs-Appellees,

TYSON FOODS, INC.; JASON ORSAK; ERICA ANTHONY;

MARIA CRUZ,

Defendants-Appellants.

________________

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,

v.

TYSON FOODS, INC. DOING BUSINESS AS TYSON FOODS;

TYSON FRESH MEATS, INC.,

Defendants-Appellants.

App-16

________________

Filed: Aug. 29, 2022

________________

Before Willett, Engelhardt, and Wilson,

Circuit Judges.

________________

ORDER

________________

PER CURIAM:

Treating the petition for rehearing en banc as a

petition for panel rehearing (5th Cir. R. 35 I.O.P.), the

petition for panel rehearing is DENIED. Because no

member of the panel or judge in regular active service

requested that the court be polled on rehearing en

banc (Fed. R. App. P. 35 and 5th Cir. R. 35), the

petition for rehearing en banc is DENIED.

App-17

Appendix C

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF TEXAS

________________

No. 9:20-cv-184

________________

ROLANDETTE GLENN, et al.,

v.

Plaintiffs,

TYSON FOODS, INC., et al.,

Defendants.

________________

Filed: Aug. 12, 2021

________________

ORDER

________________

Pending before the Court is Plaintiffs’ Motion to

Remand. (Doc. #13). Plaintiffs seek to have this case

remanded to state court, alleging that the defendants,

Tyson Foods, Inc. (“Tyson”), Jason Orsak, Erica

Anthony, and Maria Cruz, have not carried their

burden to establish federal officer or federal question

jurisdiction. After considering the motion, arguments

from the parties, and the applicable law, the Court

grants Plaintiffs’ Motion to Remand. (Doc. #13).

I.

BACKGROUND

Plaintiffs are eleven past and present workers of

Defendant Tyson who allege that they contracted

COVID-19 while working at a Tyson poultry-

App-18

processing facility and a personal representative of a

twelfth worker who allegedly died as a result of

contracting the virus at work. (Doc. #3, at 3-4). More

specifically, Plaintiffs allege that despite a stay-athome order issued by Governor Abbott that went into

effect on April 2, 2020, Plaintiffs were required to

continue working at the Tyson meatpacking plant in

Center, Texas (“Center Facility”). Id. at 5. They assert

that both before and after the April 2 stay-at-home

order, Tyson failed to take adequate precautions to

protect the workers at its meatpacking facilities from

COVID-19. Id.

At all relevant times during the events alleged the

first amended petition, Defendant Jason Orsak was a

complex safety manager for Tyson and Defendants

Erica Anthony and Maria Cruz were safety

coordinators for Tyson. Id. at 4. Plaintiffs allege those

defendants

were

directly

responsible

for

implementing and enforcing adequate safety

measures to prevent the spread of COVID-19 but

failed to do so. Id. at 5-6. More specifically, Plaintiffs

allege that Orsak and Anthony failed to issue masks

to employees, institute six feet barriers between

employees, limit contact between employees, and

create rideshare alternatives to the Center Facility’s

bus system. Id. at 6. Allegedly, as a direct result of the

negligence and gross negligence of Defendants,

Plaintiffs contracted COVID-19 at the Center Facility

and have experienced significant injuries, including

death. Id.

On July 23, 2020, Plaintiffs filed their first

amended petition in the 273rd Judicial District of

Shelby County, Texas. The petition asserts a

App-19

negligence and gross negligence claim against all

Defendants, a premises liability claim against Tyson,

and a wrongful death and survival claim against all

Defendants by Plaintiff Clifford Bell, individually and

as the personal representative for the estate of Beverly

Whitsey. Id. at 6-9.

Tyson then removed the action to federal court

asserting federal officer and federal question

jurisdiction. (Doc. #1). It asserts that because Tyson

was under an April 28, 2020, Executive Order to

continue operations pursuant to the supervision of the

federal government and pursuant to federal

guidelines and directives, federal court is the proper

forum for resolving the case. Id. at 3. Plaintiffs then

filed the pending motion to remand alleging that

Defendants had not met their burden to prove federal

jurisdiction is proper. (Doc. #13). 1

II. LEGAL STANDARD

Federal courts are courts of limited jurisdiction

and may only hear a case when jurisdiction is both

authorized by the United States Constitution and

confirmed by statute. Griffin v. Lee, 621 F.3d 380, 388

(5th Cir. 2010). Removal to federal court is proper

when the federal court would have had original

jurisdiction over the action. 28 U.S.C. § 1441(a). The

federal court has original federal question subject

matter jurisdiction over “all civil actions arising under

the Constitution, laws, or treaties of the United

States.” 28 U.S.C. § 1331.

1 Although there are both corporate and individual defendants,

all are represented by the same attorneys. For clarity purposes,

the Court will refer to all defendants as Tyson.

App-20

Additionally, under Section 1442(a)(1), commonly

referred to as the Federal Officer Removal Statute,

“[t]he United States or any agency thereof or any

officer (or any person acting under that officer) of the

United States or of any agency thereof” may remove a

civil action commenced in state court “for or relating

to any act under color of such office or on account of

any right, title or authority claimed under any Act of

Congress for the apprehension or punishment of

criminals or the collection of the revenue.” 28 U.S.C.

§ 1442(a)(1).

Although usually “[a]ny ambiguities are

construed against removal because the removal

statute should be strictly construed in favor of

remand,” Manguno v. Prudential Prop. & Cas. Ins.

Co., 276 F.3d 720, 723 (5th Cir. 2002), the federal

officer removal statute must be liberally interpreted

because of its broad language and unique purpose.

Watson v. Philip Morris Cos., Inc., 551 U.S. 142, 147

(2007). As with any motion to remand, the removing

party bears the burden of showing that federal

jurisdiction exists, and that removal was proper. De

Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir.

1995); Winters v. Diamond Shamrock Chem. Co., 149

F.3d 387, 397 (5th Cir. 1998).

III. DISCUSSION

To this Court’s knowledge, there are currently

three main judicial opinions that address virtually the

same issue as the one in this case: Fernandez v. Tyson

Foods, Inc. et al., No. 20-CV-2079-LRR, 2020 WL

App-21

7867551 (N.D. Iowa Dec. 28, 2020), 2 Fields et al. v.

Brown et al., No. 6:20-CV-00475, 2021 WL 510620

(E.D. Tex. Feb. 11, 2021), 3 and Wazelle, et al., v. Tyson

Foods, Inc., et al., No. 2:20-CV-203-Z, 2021 WL

2637335 (N.D. Tex. June 25, 2021). Fernandez granted

remand while Fields and Wazelle did not. For the

reasons explained below, this Court agrees with

Fernandez and Plaintiffs’ motion to remand will be

granted.

A. Federal Officer Jurisdiction

A defendant removing under section 1442(a)(1)

must show “(1) it has asserted a colorable federal

defense, (2) it is a ‘person’ within the meaning of the

statute, (3) that has acted pursuant to a federal

officer’s directions, and (4) the charged conduct is

connected or associated with an act pursuant to a

federal officer’s directions.” Latiolais v. Huntington

Ingalls, Inc., 951 F.3d 286, 296 (5th Cir. 2020). Here,

Tyson’s status as a “person” is not disputed. However,

elements one, three, and four are disputed.

1.

Colorable Federal Defense

To be “colorable,” the asserted federal defense

need not be “clearly sustainable,” as section 1442 does

not require a federal official or person acting under

him “to ‘win his case before he can have it removed.’”

2 This decision is currently on appeal before the Eighth Circuit.

Fernandez v. Tyson Foods, Inc. et al., No. 21-1010 (8th Cir. appeal

docketed Jan. 4,2021).

3 The district court in Fields gave the plaintiffs permission to

apply for an interlocutory appeal of the order, but the Fifth

Circuit denied the application without stating a reason. Fields v.

Brown, No. 21-90021 (5th Cir. June 21, 2021).

App-22

Jefferson Cnty., Ala. v. Acker, 527 U.S. 423, 431 (1999)

(internal citations omitted). Instead, if an asserted

federal defense is plausible, it is colorable. Latiolais,

951 F.3d at 297. A defense is colorable unless it is

“immaterial and made solely for the purpose of

obtaining jurisdiction” or “wholly insubstantial and

frivolous.” Id.

In its notice of removal, Tyson raised two federal

defenses. First, it argues that the Poultry Products

Inspection Act (“PPIA”) expressly preempts Plaintiffs’

state-law claims. (Doc. #1, at 9). Second, it claims that

“Plaintiffs’ claims are also preempted by the DPA

[“Defense Production Act”] and the President’s [April

28, 2020] Food Supply Chain Resources executive

order and related federal directions.” Id. at 10.

i.

PPIA

After pointing out that the PPIA and the Federal

Meat Inspection Act (“FMIA”) have substantially

identical preemption provisions, Tyson maintains that

the FMIA “‘sweeps widely’ and ‘prevents a State from

imposing any additional or different—even if nonconflicting— requirements that fall within the scope

of the Act and concern a slaughterhouse’s facilities or

operations.” (Doc. #1, at 9-10) (quoting Nat’l Meat

Ass’n v. Harris, 565 U.S. 452, 459-60 (2012)).

Specifically, Tyson argues that “the alleged failings

Plaintiff pleads are ‘in addition to, or different than,’

the requirements that FSIS4 [(“Food Safety and

4 The United States Department of Agriculture (“USDA”) is

responsible for enforcing the PPIA. FSIS is under the direction of

USDA. The parties’ briefing use FSIS and USDA somewhat

interchangeably.

App-23

Inspection Service”)] has imposed regarding employee

hygiene and infectious disease—and therefore are

preempted under the express terms of 21 U.S.C.

§ 467e.” (Doc. #14, at 22). Tyson asserts that

“[p]reemption applies wherever Plaintiffs seek to

impose, as a matter of state law, different

requirements for poultry-processing employees than

those adopted by the Department of Agriculture.”

(Doc. #14, at 23).

The PPIA’s express preemption clause (which

includes a savings clause) is found at 21 U.S.C. § 467e

and provides:

Requirements within the scope of [the PPIA]

with respect to premises, facilities and

operations

of

any

[meat-processing]

establishment . . . which are in addition to, or

different than those made under [the PPIA]

may not be imposed by any State . . . .

This chapter shall not preclude any

State . . . from making requirement [sic] or

taking other action, consistent with this

chapter, with respect to any other matters

regulated under this chapter.

Thus, for a state rule to be preempted by the PPIA, it

must be within the scope of the Act. “[T]he question

whether a certain state action is pre-empted by federal

law is one of congressional intent. The purpose of

Congress is the ultimate touchstone.” Allis-Chalmers

Corp. v. Lueck, 471 U.S. 202, 208 (1985) (internal

citations omitted). “To discern Congress’ intent we

examine the explicit statutory language and the

structure and purpose of the statute.” Ingersoll-Rand

Co. v. McClendon, 498 U.S. 133, 138 (1990).

App-24

Tyson’s preemption argument is premised on a

misunderstanding of the PPIA’s breadth. The purpose

of the PPIA is “to provide for the inspection of poultry

and poultry products and otherwise regulate the

processing and distribution of such articles . . . to

prevent the movement or sale in interstate or foreign

commerce of, or the burdening of such commerce by,

poultry products which are adulterated or

misbranded.” 21 U.S.C. § 452. According to Tyson,

USDA (through FSIS) has promulgated hundreds of

pages of federal regulations addressing infectious

diseases. However, Tyson (and the Fields and Wazelle

courts) do not address the fact that the PPIA’s primary

purpose is to protect consumers from unsafe meat, not

to protect workers from disease. In fact, FSIS itself

acknowledges that it “has neither the authority nor

the expertise to regulate issues related to

establishment worker safety.” Modernization of Swine

Slaughter Inspection, 84 Fed. Reg. 52,300, 52,305

(Oct. 1, 2019). Instead, “OSHA [Occupational Safety

and Health Administration] is the Federal agency

with statutory and regulatory authority to promote

workplace safety and health.” Id. Because FSIS, the

agency that enforces the PPIA, does not have

authority to regulate worker safety, it follows that no

state common law negligence claims based on

improper workplace safety could be within the scope

of the PPIA. And there is no suggestion from Tyson

that the provisions OSHA administers could preempt

Plaintiffs’ claims.

Further, Tyson points to no evidence that

Congress intended the PPIA to displace state-law

actions relating to workplace safety. On the contrary,

the federal agency that does regulate workplace

App-25

safety, OSHA, expressly preserves a role for state-law

regulation and common law claims, including those

that relate to “injuries, diseases, or death of employees

arising out of, or in the course of, employment.” 29

U.S.C. § 653(b)(4). Federal law gives the states

express authority to develop their own health and

safety standards and recognizes that the states play

the primary role in protecting their workers’ health

and safety. See 29 U.S.C. § 667. And in fact, many

cities and states have implemented their own COVID19 procedures, and nothing suggests that those

procedures do not apply to facilities regulated by the

PPIA.

According to Tyson, FSIS has promulgated

hundreds of pages of federal regulations addressing

infectious diseases. But the regulatory examples

Tyson cites confirm that the PPIA’s concern is with

food safety, not worker safety. Tyson notes that “FSIS

has promulgated a specific ‘[d]isease control’

regulation providing that ‘[a]ny person who has or

appears to have an infectious disease . . . must be

excluded from any operations which could result in

product adulteration and the creation of insanitary

conditions.’” (Doc. #14, at 21) (alterations in original)

(quoting 9 C.F.R. § 416.5(c)). This provision highlights

the PPIA’s specific concern with conditions leading to

“product adulteration,” not the spread of disease

among workers. Likewise, in noting that regulations

promulgated under the PPIA require worker

protective equipment, Tyson omits the other portion of

§ 416.5(b) which states that “garments must be

changed during the day as often as necessary to

prevent adulteration of product and the creation of

insanitary conditions. 9 C.F.R. § 416.5(b) (emphasis

App-26

added). This again demonstrates the PPIA’s concern

with the “adulteration of product.” Because the PPIA

does not govern worker safety, it does not preempt

Plaintiffs’ claims that Tyson negligently failed to

protect workers.

The PPIA only preempts requirements within its

scope—and for a duty to fall within that scope, there

must be some evidence that Congress intended to

preempt that duty. But Tyson has failed to point to a

single provision of the PPIA that indicates any intent

to preempt the common- law duty at issue here—the

duty to maintain a reasonably safe workplace. And if

the PPIA does not address a duty whatsoever, than the

duty is not within its scope and therefore is not

preempted. Taking Tyson’s argument to its logical

conclusion would mean that states could not

implement workplace safety regulations in any facility

subject to PPIA’s regulations, which is illogical and

would unduly interfere with the states’ police power to

protect the health and safety of their citizens. Because

nothing in the statutory language or in the structure

and purpose of the PPIA suggest an intent for the

PPIA to preempt state common-law workplace safety

claims such as this one, the PPIA does not provide a

colorable federal defense.

ii. DPA and the President’s Executive

Order

Tyson’s second defense is that Plaintiffs’ claims

are also preempted by the DPA and the President’s

April 28, 2020 Food Supply Chain Resources

Executive Order and related federal directions. (Doc.

#1, at 10). This argument fails. As Plaintiffs point out

in the motion to remand, their claims arose before the

App-27

President issued his April 28 order invoking the DPA.

In their petition, Plaintiffs allege that Tyson

unnecessarily and recklessly exposed Plaintiffs to

COVID-19 weeks before the April 28 order.

Specifically, Plaintiffs state that Tyson “failed to take

adequate precautions to protect the workers at its

meatpacking facilities, including the Center, Texas

meatpacking facility” by failing to take “significant

precautions to prevent the spread of COVID- 19, prior

to April 2, 2020.” (Doc. #3, at 6). Clearly an executive

order issued after Plaintiffs contracted COVID-19

cannot preempt their claims.

Tyson raises no argument in their response to the

motion to remand to refute this. Instead, Tyson merely

asserts that it need not prove it will prevail on their

asserted defense. However, it is Tyson’s burden to

show it has a colorable federal defense and although it

need not prove it will prevail on the defense, it at least

has to show that it is entitled to raise it. Tyson has

made no such showing under either the PPIA or the

DPA. Further, it appears that Tyson’s reliance on the

PPIA and the DPA is made for the sole purpose of

obtaining jurisdiction. See Latiolais, 951 F.3d at 297

(“[A]n asserted federal defense is colorable unless it is

immaterial and made solely for the purpose of

obtaining jurisdiction or wholly insubstantial and

frivolous”). Thus, Tyson has no colorable federal

defense, and federal officer removal is improper.

2.

Acted Pursuant to

Officer’s Directions

a

Federal

As the Supreme Court has emphasized, the

“acting under” requirement in 28 U.S.C. § 1442(a)(1)

is broad and should be liberally construed. Watson,

App-28

551 U.S. at 147 (2007). The phrase contemplates a

relationship between a private person and a federal

officer that “typically involves subjection, guidance, or

control” by the federal officer and, on the part of the

private person, “an effort to assist, or help carry out,

the duties or tasks of the federal superior.” Id. at 151.

In other words, the relationship involves a

“delegation” of authority. Id. at 156-57. To invoke the

protection of a federal forum under 28 U.S.C.

§ 1442(a)(1), the private person’s relationship with a

federal officer must implicate a “federal interest.”

Winters v. Diamond Shamrock Chem. Co., 149 F.3d

387, 398 (5th Cir. 1998).

Tyson points to two possible sources of direction

from a federal officer: Tyson’s designation as “critical

infrastructure” and the President’s April 28, 2020

Executive Order. As explained above, the primary

allegations in Plaintiffs’ petition took place before

April 28, 2020. At the time the events in the petition

took place, there was no executive order in place.

Thus, the executive order cannot satisfy the acting

under prong of § 1442.

Tyson also argues it was acting under a federal

officer’s directions because it “operated its facilities—

including

the

Center

facility—as

critical

infrastructure of the United States pursuant to

‘critical infrastructure’ emergency plans growing out

of Presidential Policy Directive 21 of the Obama

Administration, which were followed upon declaration

of a national emergency.” (Doc. #14, at 16). As a

preliminary matter, Tyson fails to point out that the

food and agriculture sector has been designated as

critical infrastructure since 2003; it is not something

App-29

that arose because of the pandemic. See Food and

Agriculture

Sector-Specific

Plan,

FDA,

vi,

https://www.cisa.gov/sites/default/files/publications/ni

pp-ssp-food-ag-2015-508.pdf (2015).

Even though the President declared a national

emergency on March 13, 2020, and issued

“Coronavirus Guidelines” on March 16, 2020, the

Court is unpersuaded that such declarations

constitute direction under a federal officer for

purposes of removal. Although Tyson claims that it

was “in constant contact with federal officials at the

Department of Homeland Security [(“DHS”)] and the

USDA regarding continued operations,” the evidence

it attached to its response to the motion to remand

does not support that assertion. (Doc. #14, at 16). The

evidence Tyson uses is a declaration of an employee,

two emails that establish Tyson and DHS/FSIS had

each other’s contact information, an essential

employee verification form Tyson itself created,

general guidance on the critical infrastructure

workforce, general guidance from USDA, emails of

Tyson trying to obtain PPE from USDA, and a USDA

sheet describing COVID-19 funding for FSIS

employees. Tyson has produced no evidence that any

federal official directed it to do something. Many of the

documents Tyson cites to are titled “guidance” which

are of course not mandatory or binding.

While Tyson may have been in regular contact

with USDA regarding continued operations of its

facilities at the early stages of the COVID-19

pandemic, such contact under the vague rubric of

“critical

infrastructure”

does

not

constitute

“subjection, guidance, or control” involving “an effort

App-30

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

federal superior.” Watson, 551 U.S. at 151-52.

Although Tyson, and the courts in Wazelle and Fields,

all give great weight to the fact that USDA and FSIS

closely monitored the plant and provided employees

onsite during the pandemic, all three fail to note that

Tyson, as an entity subject to federal regulation, is

always closely monitored by FSIS and subject to its

guidance and that FSIS always has employees onsite

at the plant and were not there as a direct result of

COVID-19. USDA statements about protocols for how

FSIS inspectors would perform their regulatory

functions during the pandemic do not show

government control of Tyson’s own operations. Tyson

did not work with USDA and FSIS, nor did it receive

any concrete, binding directives from them; Tyson

merely received guidance from them. And close

monitoring does not entitle it to federal officer

removal. See id. at 153. Many industries are closely

monitored by the federal government, but the vast

majority of them cannot claim federal officer removal.

See id. (“A private firm's compliance (or

noncompliance) with federal laws, rules, and

regulations does not by itself fall within the scope of

the statutory phrase ‘acting under’ a federal ‘official.’

And that is so even if the regulation is highly detailed

and even if the private firm's activities are highly

supervised and monitored. A contrary determination

would expand the scope of the statute considerably,

potentially bringing within its scope state-court

actions filed against private firms in many highly

regulated industries). Tyson has not shown that its

contact with USDA after the president declared a

national emergency was different than its normal

App-31

communication with USDA or that it constituted a

delegation of authority.

The Court finds the Supreme Court’s decision in

Watson particularly helpful. In Watson, the defendant

alleged that the Federal Trade Commission (“FTC”)

had delegated to the tobacco industry authority to test

the tar and nicotine content of cigarettes, and that the

defendant was thus acting under the FTC in

performing that testing function. 551 U.S. at 154. The

testing at issue had at one point been performed by

the FTC itself, and the agency published the test

results periodically and sent them annually to

Congress. Id. at 155. When the FTC eventually

stopped performing such tests due to cost

considerations,

the

industry

assumed

that

responsibility, “running the tests according to FTC

specifications and permitting the FTC to monitor the

process closely.” Id. “The FTC continue[d] to publish

the testing results and to send them to Congress,” just

as it had done with the FTC’s own test results. Id.

Despite the close coordination alleged in that case, the

Supreme Court unanimously held that the defendant

was not “acting under” the FTC within the meaning of

Section 1442(a)(1). Tyson attempts to distinguish this

case from Watson by stating that the Supreme Court’s

decision was based on a finding that the defendant

was simply complying with the law. However, the

holding is more complex. The Court stressed that

there was “no evidence of any delegation of legal

authority from the FTC to the industry association to

undertake testing on the Government agency’s behalf.

Nor [wa]s there evidence of any contract, any

payment, any employer/employee relationship, or any

principal/agent arrangement.” Id. at 156. Like Tyson

App-32

in this case, the defendant in Watson pointed to

numerous documents and communications in support

of its claim that it was working with the FTC and

acting under its direction in a relevant sense. But the

Supreme Court “examined all of the documents” and

found them lacking because none “establish[ed]the

type of formal delegation that might authorize the

defendant to remove the case.” Id.

Although Tyson asserts that it was carrying out

the duties and task of the federal superior, like in

Watson, here there is no evidence of any delegation of

legal authority from USDA to Tyson. See id. Nor is

there evidence of any contract, any payment, any

employer/employee

relationship,

or

any

principal/agent arrangement. See id. And although

there may have been considerable regulatory detail

and supervision, this Court can find nothing that

warrants treating the USDA/Tyson relationship as

distinct

from

the

usual

regulator/regulated

relationship. While the Court agrees with the

proposition from E. Air Lines, Inc. v. McDonnell

Douglas Corp., 532 F.2d 957, 994 (5th Cir. 1976), that

the DPA can be exercised through informal methods,

that case did not deal with federal officer removal.

Tyson cites no case where a private entity without a

contract with the federal government was able to

satisfy the acting under requirement. 5 But cf. Winters,

5 Tyson cites to Maryland v. Soper (No. 1), a case involving

federal agents directing a private person to drive a car in pursuit

of bootleggers. Maryland v. Soper (No. 1), 270 U.S. 9 (1926).

While the Court there noted that the chauffeur and helper had

the same right to the benefit of the removal provision as the

federal agent, it ultimately rejected the removal efforts and thus,

App-33

149 F.3d at 398 (defendant with a detailed and specific

contract with the defense department to produce a

product with the specifications specifically dictated by

the government satisfied acting under requirement);

St. Charles Surgical Hosp., L.L.C. v. Louisiana Health

Serv. & Indem. Co., 935 F.3d 352, 356 (5th Cir. 2019)

(because under the Federal Employees Health

Benefits Act, the Office of Personnel Management was

responsible for contracting with private insurance

carriers to provide health benefits plans to federal

employees, insurance carrier with such a contract

satisfied the acting under requirement). Thus, the

“acting under” requirement is not met.

3.

Connected or Associated with an Act

Pursuant to a Federal Officer’s

Directions

Finally, Tyson must show a connection or

association between the federal officer’s directions and

Plaintiffs’ claims. Latiolais, 951 F.3d at 296.

The parties dispute the applicable standard for

this prong. Plaintiffs, citing the Fifth Circuit’s decision

in Winters, argue that there must be a “causal nexus”

between plaintiffs’ claims and the directions that

defendants received from a federal officer. 149 F.3d at

387. But that standard no longer governs. In 2020, the

Fifth Circuit, sitting en banc, reinterpreted the 2011

statutory amendments to § 1442 in Latiolais v.

Huntington Ingalls. Inc. 951 F.3d 286. Those

amendments “alter[ed] the requirement that a

removable case be ‘for’ any act under color of federal

this comment is dicta. Soper also dealt with § 1442’s predecessor

statute, not § 1442 itself.

App-34

office and permitt[ed] removability of a case ‘for or

relating to’ such acts.” Id. 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.

Historically, many courts considered the acting

under and causation requirements together. See, e.g.

Winters, 149 F.3d 387. Although it has now been

established that they are distinct and should be

considered separately, that is not possible when, as

here, the court finds the defendant has not acted

pursuant to a federal officer’s directions. In other

words, there can be no connection or association

between the federal officer’s directions and the

plaintiffs’ claims when, as here, the court has

determined that there were no federal officer’s

directions. Thus, because the “acting under”

requirement is not met, the connection or association

element is also not met.

B. Federal Question Jurisdiction

Pursuant to 28 U.S.C. § 1331, federal courts have

subject matter jurisdiction over civil actions “arising

under” federal law. 28 U.S.C. § 1331. A federal

question exists “only [in] those cases in which a wellpleaded complaint establishes either that federal law

creates the cause of action or that the plaintiff’s right

to relief necessarily depends on resolution of a

substantial question of federal law.” Franchise Tax

Bd. of State of Cal. v. Constr. Laborers Vacation Tr. for

S. Cal., 463 U.S. 1, 27-28 (1983). “[T]he question is,

does a state-law claim necessarily raise a stated

federal issue, actually disputed and substantial, which

App-35

a federal forum may entertain without disturbing any

congressionally approved balance of federal and state

judicial responsibilities.” Grable & Sons Metal Prod.,

Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314 (2005).

Upon review of the petition, the Court finds that

the petition does not assert federal claims, but rather

asserts common law tort claims for negligence,

premises liability, and wrongful death. See Caterpillar

Inc. v. Williams, 482 U.S. 386, 392 (1987) (providing

that “federal jurisdiction exists only when a federal

question is presented on the face of the plaintiff’s

properly pleaded complaint”). Additionally, Plaintiffs’

claims do not allege a cause of action created by a

federal statute. See Merrell Dow Pharms. Inc. v.

Thompson, 478 U.S. 804, 808 (1986) (providing that

cases brought under federal question jurisdiction are

generally cases where federal law creates the cause of

action).

As to Tyson’s reliance on interpretation of the

DPA, the Court has already explained that its reliance

on President’s April 28, 2020 Executive Order

invoking the DPA is misplaced because it was issued

after the primary allegations in the petition had taken

place. Further, Plaintiffs’ generic passing references

in the petition to federal regulations and guidance and

their brief mention of CDC guidelines and OSHA

standards do not confer federal question jurisdiction.

See Merrell Dow, 478 U.S. at 813 (providing that “the

mere presence of a federal issue in a state cause of

action does not automatically confer federal-question

jurisdiction”); Grable & Sons Metal Prod., Inc., 545

U.S. at 314 (providing that for federal courts to have

jurisdiction, the state law claim must turn on an

App-36

“actually disputed and substantial” issue of federal

law). Accordingly, the Court concludes that the

petition does not contain a federal question and,

therefore, the Court lacks subject matter jurisdiction

over the case.

IV. CONCLUSION

The Court finds that Tyson has failed to

demonstrate (1) that it has a colorable federal defense;

(2) that it acted under the direction of a federal officer;

and (3) that because it does not meet the “acting

under” element it cannot meet the connection or

association element. Accordingly, Tyson’s removal

based on the federal officer removal statute is

improper. The Court also finds that the petition does

not contain a federal question. Therefore, the Court

lacks subject matter jurisdiction over this case.

It is accordingly ORDERED that Plaintiffs’

Motion to Remand (Doc. #13) is GRANTED. The

Clerk is directed to CLOSE this case and REMAND

it to the 273rd Judicial District Court of Shelby

County, Texas, from which it was removed in

accordance with the procedures set forth by the Local

Rules for the Eastern District of Texas. All remaining

deadlines and trial settings are TERMINATED, and

all pending motions are denied as MOOT, without

prejudice to reassert as necessary in state court.

SIGNED this 12th day of August,

2021.

[handwritten: signature]

Michael J. Truncale

United States District Judge

App-37

Appendix D

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF TEXAS

________________

No. 3:21-CV-1184

________________

MARIA YOLANDA CHAVEZ, et al.,

v.

Plaintiffs,

TYSON FOODS, INC., et al.,

Defendants.

________________

Filed: Oct. 27, 2021

________________

ORDER

________________

For essentially the reasons argued therein, the

Court ORDERS that Plaintiffs’ Motion to Remand be

GRANTED and that this civil action be REMANDED

back to the County Court at Law No. 3, Dallas County,

Texas. 1 Specifically the Court finds that Defendants

have failed to carry their heavy burden in establishing

that: (1) they were acting under the direction of a

federal officer when they engaged in the alleged

tortious conduct; (2) the alleged conduct is connected

or associated with an act taken pursuant to federal

1 The Court emphasizes that any doubts should be strictly

construed in favor of remand. African Methodist Episcopal

Church v. Lucien, 756 F.3 d 788, 793 (5th Cir. 2014).

App-38

officer’s directions; or (3) a colorable federal defense is

available. 2 See Mumfrey v. CVS Pharm., Inc., 719 F.3d

392, 397 (5th Cir. 2013) (the party seeking to remove

a case to federal court bears the burden of showing

that federal jurisdiction exists and that removal was

proper); see also Glenn v. Tyson Foods, Inc., __ F.

Supp. 3d __, 2021 WL 3614441 (E.D. Tex. Aug. 12,

2021); Fernandez v. Tyson Foods, Inc., 509 F. Supp. 3d

1064 (N.D. Iowa 2020); but see Wazelle v. Tyson Foods,

Inc., 2021 WL 2637335 (N.D. Tex. June 25, 2021);

Fields v. Brown, 519 F. Supp. 3d 388 (E.D. Tex. 2021). 3

Any and all pending Motions are DENIED AS MOOT

2 Moreover, the removal of this civil action based upon federal

question jurisdiction was not proper because Plaintiffs’ commonlaw tort claims do not depend necessarily on a disputed or

substantial question of federal law. See Grable & Sons Metal

Prod., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314 (2005) (“the

question is, does a state-law claim necessarily raise a stated

federal issue, actually disputed and substantial, which a federal

forum may entertain without disturbing any congressionally

approved balance of federal and state judicial responsibilities.”).

Additionally, merely referencing federal regulations within the

context of state law negligence claims does not confer federal

question jurisdiction. See Merrell Dow Pharms. Inc. v. Thompson,

478 U.S. 804, 813 (1986) (“the mere presence of a federal issue in

a state cause of action does not automatically confer federalquestion jurisdiction.”.

3 The Court notes that the Uni ted States has filed an amicus

brief in two consolidated and closely related appeals—currently

pending before the Uni ted States Court of Appeals for the Eighth

Circuit—in which the United States argues that “Tyson is not

entitled to a federal forum because it was not performing a

federal function under the direction of a federal officer during the

relevant period, and federal law provides no defense to plaintiffs'

claims.” See Buljic v. Tyson Foods, Inc., Nos. 21-1010 & 21-1012

(8th Cir.).

App-39

subject to being refiled in state court. The Clerk of

Court shall mail a certified copy of this Order to the

County Clerk of Dallas County, Texas.

SO ORDERED.

Dated October [handwritten: 27], 2021.

[handwritten: signature]

SAM R. CUMMINGS

SENIOR UNITED STATES

DISTRICT JUDGE

App-40

Appendix E

RELEVANT STATUTORY PROVISION

28 U.S.C. § 1442. Federal officers or agencies

sued or prosecuted

(a) A civil action or criminal prosecution that is

commenced in a State court and that is against or

directed to any of the following may be removed by

them to the district court of the United States for the

district and division embracing the place wherein it is

pending:

(1) The United States or any agency thereof or

any officer (or any person acting under that

officer) of the United States or of any agency

thereof, in an official or individual capacity, for or

relating to any act under color of such office or on

account of any right, title or authority claimed

under any Act of Congress for the apprehension or

punishment of criminals or the collection of the

revenue.

(2) A property holder whose title is derived from

any such officer, where such action or prosecution

affects the validity of any law of the United States.

(3) Any officer of the courts of the United States,

for or relating to any act under color of office or in

the performance of his duties;

(4) Any officer of either House of Congress, for or

relating to any act in the discharge of his official

duty under an order of such House.

(b) A personal action commenced in any State court

by an alien against any citizen of a State who is, or at

the time the alleged action accrued was, a civil officer

App-41

of the United States and is a nonresident of such

State, wherein jurisdiction is obtained by the State

court by personal service of process, may be removed

by the defendant to the district court of the United

States for the district and division in which the

defendant was served with process.

(c) Solely for purposes of determining the propriety

of removal under subsection (a), a law enforcement

officer, who is the defendant in a criminal prosecution,

shall be deemed to have been acting under the color of

his office if the officer-(1) protected an individual in the presence of the

officer from a crime of violence;

(2) provided immediate assistance to an

individual who suffered, or who was threatened

with, bodily harm; or

(3) prevented the escape of any individual who

the officer reasonably believed to have committed,

or was about to commit, in the presence of the

officer, a crime of violence that resulted in, or was

likely to result in, death or serious bodily injury.

(d) In this section, the following definitions apply:

(1) The terms “civil action” and “criminal

prosecution” include any proceeding (whether or

not ancillary to another proceeding) to the extent

that in such proceeding a judicial order, including

a subpoena for testimony or documents, is sought

or issued. If removal is sought for a proceeding

described in the previous sentence, and there is no

other basis for removal, only that proceeding may

be removed to the district court.

App-42

(2) The term “crime of violence” has the meaning

given that term in section 16 of title 18.

(3) The term “law enforcement officer” means

any employee described in subparagraph (A), (B),

or (C) of section 8401(17) of title 5 and any special

agent in the Diplomatic Security Service of the

Department of State.

(4) The term “serious bodily injury” has the

meaning given that term in section 1365 of title

18.

(5) The term “State” includes the District of

Columbia, United States territories and insular

possessions, and Indian country (as defined in

section 1151 of title 18).

(6) The term “State court” includes the Superior

Court of the District of Columbia, a court of a

United States territory or insular possession, and

a tribal court.