Petition for Writ of Certiorari — Tyson Foods, Inc., et al., Petitioners v. Hus Hari Buljic, et al.
Supreme Court briefJul 22, 2022
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APPENDIX
TABLE OF APPENDICES
Appendix A
Opinion, United States Court of Appeals
for the Eighth Circuit, Buljic v. Tyson
Foods, Inc., No. 21-1010 (Dec. 30, 2021)..... App-1
Appendix B
Order, United States Court of Appeals for
the Eighth Circuit, Buljic v. Tyson Foods,
Inc., No. 21-1010 (Feb. 22, 2022) .............. App-22
Appendix C
Order, United States District Court
for the Northern District of Iowa, Buljic
v. Tyson Foods, Inc., No. 20-cv-2055
(Dec. 28, 2020) ........................................... App-25
Appendix D
Order, United States District Court for
the Northern District of Iowa, Fernandez
v. Tyson Foods, Inc., No. 20-cv-2079
(Dec. 28, 2020) ........................................... App-66
Appendix E
Relevant Statutory Provisions ................ App-104
28 U.S.C. § 1442 ............................... App-104
App-1
Appendix A
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
________________
No. 21-1010
________________
HUS HARI BULJIC, individually and as administrator
of the estate of Sedika Buljic; HONARIO GARCIA,
individually and as administrator of the estate of
Reberiano Leno Garcia; MIGUEL ANGEL HERNANDEZ,
as co-administrator of the estate of Jose Luis Ayala,
Jr.; ARTURO DE JESUS HERNANDEZ, as coadministrator of the estate of Jose Luis Ayala, Jr.,
v.
Plaintiffs-Appellees,
TYSON FOODS, INC., TYSON FRESH MEATS, INC.; JOHN
H. TYSON; NOEL W. WHITE; DEAN BANKS; STEPHEN R.
STOUFFER; TOM BROWER,
Defendants-Appellants.
MARY OLEKSIUK; ELIZABETH CROSTON,
Defendants,
TOM HART,
Defendant-Appellant,
HAMDIJA BEGANOVIC; JAMES HOOK; RAMIZ MUHELJIC;
GUSTAVO CABAREA; PUM PISNG; ALEX BUFF; WALTER
CIFUENTES; MUWI HLAWNCEU,
Defendants,
CODY BRUSTKERN,
Defendant-Appellant,
App-2
MARK SMITH; JOHN DOES 1-10,
Defendants,
BRET TAPKEN; JOHN CASEY; JAMES HOOK,
Defendants-Appellants.
________________
No. 21-1012
________________
OSCAR FERNANDEZ, individually and as administrator
of the estate of Isidro Fernandez,
v.
Plaintiff-Appellee,
TYSON FOODS, INC., TYSON FRESH MEATS, INC.; JOHN
H. TYSON; NOEL W. WHITE; DEAN BANKS; STEPHEN R.
STOUFFER; TOM BROWER,
Defendants-Appellants.
MARY OLEKSIUK; ELIZABETH CROSTON,
Defendants,
TOM HART,
Defendant-Appellant,
HAMDIJA BEGANOVIC; JAMES HOOK; RAMIZ MUHELJIC;
MISSIA ABAD BERNAL; JOHN AND JANE DOES 1-10,
Defendants,
CODY BRUSTKERN; JOHN CASEY; BRET TAPKEN,
Defendants-Appellants.
________________
Submitted: Sept. 23, 2021
filed: Dec. 30, 2021
________________
App-3
Before: KELLY, ERICKSON, and GRASZ,
Circuit Judges.
________________
OPINION
________________
KELLY, Circuit Judge.
In these two cases, Plaintiffs-Appellees are
relatives of individuals who worked at the Tyson
Foods pork processing facility in Waterloo, Iowa,
contracted COVID-19 (allegedly at work), and later
died. Defendants-Appellants are Tyson Foods,
executives of Tyson Foods, and supervisors at Tyson’s
Waterloo facility (collectively, Tyson). Plaintiffs assert
claims for fraudulent misrepresentation and gross
negligence, contending that Tyson’s actions in March
and April of 2020 caused their relatives’ deaths. Tyson
removed both cases to federal court and now appeals
the district court’s 1 orders remanding them to state
court. We consolidated the cases and, having
jurisdiction under 28 U.S.C. § 1447(d), now affirm.
I.
Background 2
A. The Federal Response to the COVID-19
Pandemic
On March 13, 2020, then-President Donald
Trump declared the COVID-19 pandemic a national
emergency. Proclamation No. 9994, 85 Fed. Reg.
1 The Honorable Linda R. Reade, United States District Court
for the Northern District of Iowa.
2 The facts discussed in this section are drawn from the record
evidence and from sources to which the parties specifically
directed us in their briefing.
App-4
15,337 (Mar. 18, 2020). In the weeks and months that
followed, the federal government took steps to stem
the spread of the virus and to address disruptions in
various industries. Some of those steps included
working with certain industries to ensure they had the
necessary supplies to continue operating. For
example, on the same day that the President declared
a
national
emergency,
the
Cybersecurity
Infrastructure Security Agency (CISA) held a
conference call with representatives of several
industries, including Tyson, to discuss procuring and
delivering critical supplies, such as Personal
Protective Equipment (PPE). Similar communications
continued over the following days and months.
Federal officials also publicly emphasized the
importance of specific industries—including the meatprocessing industry—and of maintaining operations
during the pandemic. On March 15, 2020, after
holding a conference call with food industry
representatives, President Trump announced that the
food and retail sectors were “working hand-in-hand
with the federal government as well as the state and
local leaders to ensure food and essentials are
constantly available,” adding that the leaders assured
him that “they’re going to work 24 hours around the
clock, keeping their store stocked.” At a press briefing
on April 7, Vice President Mike Pence reiterated the
importance of the food supply industry and thanked
members of the industry—including Tyson—for
keeping grocery store shelves stocked.
The United States Department of Agriculture
(USDA), which regulates the meat-processing
industry, similarly issued statements about
App-5
responding to the pandemic. In a March 16 statement,
the USDA explained that it “remain[ed] committed to
working closely with industry to fulfill [its] mission of
ensuring the safety of the U.S. food supply and
protecting agricultural health.” The statement noted
that facility inspections would continue and that
USDA field personnel would work closely with facility
management and state and local health authorities. A
few days later, the USDA’s Food Safety and Inspection
Service (FSIS)—which is tasked with inspecting
slaughterhouses and meat products—sent a letter to
facility managers and FSIS field employees explaining
that FSIS sought a “united effort” with industry
partners and providing guidance about screening
FSIS employees for COVID-19 at facilities.
As uncertainty grew and state and local officials
adopted differing responses to the COVID-19
pandemic, the federal government issued additional
guidance about the virus and about industries it
considered critical. On March 16, President Trump
issued the “Coronavirus Guidelines for America,”
which outlined specific steps aimed at slowing the
spread of the virus. The Guidelines also stated that
employees who “work in a critical infrastructure
industry . . . such as healthcare services and
pharmaceutical and food supply . . . have a special
responsibility to maintain [their] normal work
schedule” and “should follow” guidance from the
Centers for Disease Control (CDC) “to protect [their]
health at work.” A few days later, CISA issued
guidance to assist “State, Local, and industry partners
in identifying” critical infrastructure workers during
the COVID-19 response, which included a list of
dozens of suggested critical infrastructure workers
App-6
within numerous sectors. The memorandum
accompanying the guidance stated that CISA
“recognize[d] that State, local, tribal, and territorial
governments
are
ultimately
in
charge
of
implementing and executing response activities in
communities under their jurisdiction, while the
Federal Government is in a supporting role.” In one
bolded passage, the memorandum emphasized that
the list of critical infrastructure employees was
“advisory in nature” and was “not, nor should it be
considered to be, a federal directive or standard in and
of itself.” Elsewhere, the memorandum explained that
“State and local officials should use their own
judgment in . . . issuing implementation directives
and guidance” and that “critical infrastructure
industry partners will use their own judgment,
informed by this list, to ensure continued operations.”
In March and early April, there were signs that
the federal government was contemplating more
direct control over certain critical industries,
including through the Defense Production Act (DPA),
50 U.S.C. § 4511. 3 At a March 18 press briefing,
3 The DPA authorizes the President to direct private companies
to prioritize federal contracts in exigent circumstances.
Specifically, the President can “require that performance under
contracts or orders (other than contracts of employment) which
he deems necessary or appropriate to promote the national
defense shall take priority over performance under any other
contract or order.” 50 U.S.C. § 4511(a). The President can also
“require acceptance and performance of such contracts . . . by any
person he finds to be capable,” and may “allocate materials,
services, and facilities in such manner . . . as he shall deem
necessary or appropriate to promote the national defense.” Id. In
order to exercise DPA authority to control the distribution of any
material, the President must first find, “(1) that such material is
App-7
President Trump forecasted, “We’ll be invoking the
Defense Production Act, just in case we need it.”
Notably, however, the President did not mention the
food industry, meat processing, or Tyson in his
comments about the DPA. Six days later, President
Trump tweeted, “The Defense Production Act is in full
force, but haven’t had to use it because no one has said
NO! Millions of masks coming as back up to States.”
Again, the tweet said nothing about the food or meatprocessing industry.
In late April and early May 2020, however, federal
officials explicitly invoked the DPA in the context of
the meat-processing industry. On April 28, President
Trump signed Executive Order 13917, which declared
that “meat and poultry in the food supply chain [met]
the criteria specified” in § 4511(b) of the DPA,
meaning they constituted “critical and strategic
materials.” Exec. Order No. 13917, 85 Fed. Reg.
26,313, 26,313 (Apr. 28, 2020). The order underscored
the importance of the continued operation of meat and
poultry processors and explained that COVID-19
outbreaks at meat-processing facilities and recent
state action that reduced or halted production at such
facilities had “undermin[ed] critical infrastructure
during the national emergency.” Id. The President
directed the Secretary of Agriculture to “take all
appropriate action under [the DPA] to ensure that
meat and poultry processors continue operations
a scarce and critical material essential to the national defense,
and (2) that the requirements of the national defense for such
material cannot otherwise be met without creating a significant
dislocation of the normal distribution of such material.” Id.
§ 4511(b).
App-8
consistent with the guidance” from the CDC and the
Occupational Safety and Health Administration
(OSHA). Id. And the President authorized the
Secretary to use the means provided by the DPA “to
determine the proper nationwide priorities and
allocation of all the materials, services, and facilities
necessary to ensure the continued supply of meat and
poultry, consistent with [federal] guidance for the
operations of meat and poultry processing facilities,”
and to “issue such orders and adopt and revise
appropriate rules and regulations as may be necessary
to implement this order.” Id. at 26,314.
On the same day that the President signed
Executive Order 13917, the USDA issued a statement
that underscored the importance of meat and poultry
facilities and of maintaining the health and safety of
employees “to ensure that these critical facilities can
continue operating.” Citing the Executive Order and
the “authority of the [DPA],” the USDA stated that it
would “work with meat processing to affirm they will
operate in accordance with the CDC and OSHA
guidance, and then work with state and local officials
to ensure that these plants are allowed to operate to
produce the meat protein that Americans need.”
Finally, on May 5, the Secretary of Agriculture sent
letters to state governors and executives of meatprocessing companies. The Secretary explained that
he was “direct[ing] meat and poultry processors to
utilize the guidance issued . . . by CDC and
OSHA . . . to implement practices and protocols for
staying operational or resuming operations while
safeguarding the health and safety of the workers and
the community.” The Secretary also directed facilities
that were currently closed without a timetable for
App-9
near-term reopening to submit to the USDA written
documentation of their protocols and resume
operations as soon as they were able to implement the
CDC and OSHA guidance. The Secretary reaffirmed
that the USDA would “continue to work with State
and local officials to ensure that facilities are
implementing best practices” and stated that further
action under the DPA was “under consideration and
[would] be taken if necessary.” There is no evidence in
the record that further action was taken.
B. Tyson’s Response to COVID-19
On March 13, 2020, in response to the COVID-19
pandemic, Tyson suspended its commercial business
travel, forbade non-essential visitors from entering
Tyson facilities, and required non-critical corporate
employees to begin working remotely. On April 6,
2020, Tyson temporarily suspended operations at its
facility in Columbus Junction, Iowa, after more than
two dozen employees tested positive for the virus.
Tyson’s Waterloo facility also experienced a
significant COVID-19 outbreak in March and April of
2020. Plaintiffs allege that by late March or early
April, Tyson’s executives and supervisors were aware
that the coronavirus was spreading through the
Waterloo facility, that they did not provide workers
with sufficient face coverings or other protective
equipment, and that they did not implement or enforce
sufficient social distancing measures. Plaintiffs
further allege that Tyson transferred workers from
the Columbus Junction facility to the Waterloo facility
without adequately testing or quarantining them and
permitted or encouraged sick employees known or
suspected to have been exposed to the coronavirus to
App-10
continue working at the Waterloo facility. Supervisors
and managers allegedly denied the existence of
confirmed cases at the facility and reportedly told
employees that their sick co-workers had the flu.
Local county officials, who visited the Waterloo
facility in April, allegedly lobbied Tyson to close the
plant and sent a letter to Tyson imploring it to
implement better safety precautions or temporarily
cease operations. Tyson resisted initially, but on April
20, 2020, it began shutting down operations at the
Waterloo facility. The facility was fully shut down
from April 22, 2020, until May 7, 2020. Ultimately, the
Black Hawk County Health Department reported
more than 1,000 COVID-19 infections among Tyson’s
2,800 Waterloo employees. In this case, Plaintiffs
allege that their relatives contracted COVID-19 at the
Waterloo facility before April 22 and that they
subsequently passed away from complications of
COVID-19 on April 18, April 23, April 26, and May 25,
2020.
II. Procedural History
Plaintiffs filed two separate cases in state court,
both suits asserting claims for fraudulent
misrepresentation and gross negligence against
Tyson. Plaintiffs contend that Tyson’s tortious actions
in March and April of 2020 caused their relatives to
contract COVID-19 and subsequently pass away from
the illness. Tyson removed both cases to federal court.
In the notices of removal, Tyson asserted that the
actions challenged by Plaintiffs were taken at the
direction of a federal officer and that it has a colorable
federal defense against the claims, citing the federal
officer removal statute, 28 U.S.C. § 1442(a)(1). Tyson
App-11
also contended that the Plaintiffs’ claims raised
substantial and disputed issues of federal law under
the DPA which must be decided by a federal forum,
citing 28 U.S.C. § 1331.
The district court granted the Plaintiffs’ motions
to remand both cases. The court found that Tyson had
failed to satisfy the elements for removal under the
federal officer removal statute and that the Plaintiffs’
petitions did not assert federal claims—which would
give rise to federal question jurisdiction—but instead
stated state-law tort claims. Tyson appeals both
decisions.
We review a district court’s grant of a motion to
remand—and related questions of statutory
interpretation—de novo. Graves v. 3M Co., 17 F.4th
764, 767 (8th Cir. 2021); Dahl v. R.J. Reynolds
Tobacco Co., 478 F.3d 965, 968 (8th Cir. 2007).
III. Federal Officer Removal
The federal officer removal statute “grants
independent jurisdictional grounds over cases
involving federal officers where a district court
otherwise would not have jurisdiction.” Jacks v.
Meridian Res. Co., LLC, 701 F.3d 1224, 1230 (8th Cir.
2012) (quoting Johnson v. Showers, 747 F.2d 1228,
1229 (8th Cir. 1984)). The statute authorizes removal
of any civil action commenced in state court that is
brought against an “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.” 28 U.S.C.
§ 1442(a)(1) (emphasis added). This is an exception to
the “well-pleaded complaint rule, under which (absent
diversity) a defendant may not remove a case to
App-12
federal court unless the plaintiff’s complaint
establishes that the case arises under federal law.”
Graves, 17 F.4th at 768 (quoting Kircher v. Putnam
Funds Tr., 547 U.S. 633, 644 n.12 (2006)). The federal
officer removal statute is to be “liberally construed,”
and thus the typical presumption against removal
does not apply. See Cnty. Bd. of Arlington Cnty. v.
Express Scripts Pharmacy, Inc., 996 F.3d 243, 250–51
(4th Cir. 2021) (quotation omitted); see also Arizona v.
Manypenny, 451 U.S. 232, 242 (1981).
When the removing party is not itself a federal
officer or agency, it may remove a case only if it shows
that it was “acting under” a federal officer or agency
in carrying out the acts that underlie the plaintiff’s
complaint. Watson v. Philip Morris Cos., 551 U.S. 142,
147 (2007). Here, this threshold showing requires
Tyson to establish that (1) it acted under the direction
of a federal officer, (2) there is a causal connection
between Tyson’s actions and the official authority, (3)
Tyson has a colorable federal defense to the plaintiffs’
claims, and (4) Tyson is a “person,” within the
meaning of the statute. Jacks, 701 F.3d at 1230.
We begin with the first element. Although “not
limitless, the words ‘acting under’ are broad.” Jacks,
701 F.3d at 1230 (cleaned up) (quoting Watson, 551
U.S. at 147). Still, not all relationships between
private entities and the federal government satisfy
this element. Instead, “[t]he assistance that private
contractors provide federal officers [must go] beyond
simple compliance with the law and help[]officers
fulfill other basic governmental tasks.” Watson, 551
U.S. at 153. The private entity’s “actions ‘must involve
an effort to assist, or to help carry out, the duties or
App-13
tasks of the federal superior,’” Jacks, 701 F.3d at 1230
(quoting Watson, 551 U.S. at 152), and this
relationship “typically involves subjection, guidance,
or control,” Watson, 551 U.S. at 151 (quotation
omitted).
The fact that an entity—such as a meat
processor—is subject to pervasive federal regulation
alone is not sufficient to confer federal jurisdiction.
This is so because “[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.’”
Watson, 551 U.S. at 153; see also Jacks, 701 F.3d at
1230 (“It is not enough that a private person or entity
merely operate in an area directed, supervised and
monitored by a federal regulatory agency or other such
federal entity.”). Instead, the private entity must help
federal officers fulfill “basic governmental tasks.”
Watson, 551 U.S. at 153–54; see also Graves, 17 F.4th
at 769; Jacks, 701 F.3d at 1231 (“Taxpayers who fill
out complex federal tax forms, or airline passengers
who obey federal regulations prohibiting smoking
certainly ‘help’ or ‘assist’ the federal law enforcement
authorities in some sense of those words, but these
individuals do not ‘act under’ an agency or officer of
the federal government for purposes of removal under
the statute.”).
For this element, “[t]he paradigm is a private
person acting under the direction of a federal law
enforcement officer.” Fidelitad, Inc. v. Insitu, Inc., 904
F.3d 1095, 1099 (9th Cir. 2018) (citing Watson, 551
U.S. at 149); see, e.g., Maryland v. Soper, 270 U.S. 9,
30 (1926) (explaining that a private party acting as
App-14
federal officers’ driver in a distillery raid had “the
same right to the benefit of” the removal provision as
did the federal agents). Courts have also found this
element satisfied where a private contractor provided
the government with a product that it needed or
performed a job that the government would otherwise
have to perform. In Jacks, for example, we explained
that a health insurance provider that provided
insurance to federal employees was acting under the
direction of a federal officer because the federal
government had enlisted it to “help the government
fulfill the basic task of establishing a health benefits
program for federal employees”—a task that was
imposed on the government by statute. 701 F.3d at
1233; see also In re Commonwealth’s Motion to
Appoint Couns. Against or Directed to Def. Ass’n of
Phila., 790 F.3d 457, 469 (3d Cir. 2015) (explaining
that a nonprofit community defender acts under a
federal officer by representing indigent federal
defendants in part because it is delegated authority
from the federal government and provides a service
that the federal government would otherwise have to
provide itself); Isaacson v. Dow Chem. Co., 517 F.3d
129, 136–37 (2d Cir. 2008) (finding “acting under”
element satisfied where defendant chemical
companies contracted with the federal government to
provide a product—Agent Orange—that the
government otherwise “would have had to produce
itself”).
Tyson argues that from the earliest days of the
pandemic, the federal government enlisted it to fulfill
a basic governmental task—ensuring that the
national food supply would not be interrupted—and
thus Tyson was acting under federal direction while
App-15
operating its Waterloo facility in March and April
2020. And Tyson contends that the various
communications from federal officials—described
above—constituted federal directives intended to
effectuate this goal. The record, however, tells a
different story.
For one, Tyson conflates the federal government’s
designation of the “food and agriculture” sector as
critical infrastructure with a finding that Tyson was
fulfilling a basic governmental task. In arguing that
its work constituted such a task, Tyson cites a 2013
Presidential Policy Directive, which identified sixteen
critical infrastructure sectors (including food and
agriculture), delegated regulatory authority over
those sectors to specific agencies, and stated that
critical infrastructure security and resilience are
shared responsibilities among various private entities
and the federal government. See Presidential Policy
Directive/PPD-21, Critical Infrastructure Security
and Resilience (Feb. 12, 2013). Tyson points out that
the federal government invoked this critical
infrastructure framework to respond to the COVID19 pandemic in March and April 2020. Relevant here,
the President’s Coronavirus Guidelines described the
“special responsibility” of critical infrastructure
workers to maintain normal schedules, and CISA
included “meat processing” employees on the list of
suggested critical infrastructure workers that it sent
to state and local officials.
But the fact that an industry is considered critical
does not necessarily mean that every entity within it
fulfills a basic governmental task or that workers
within that industry are acting under the direction of
App-16
federal officers. The 2013 list included sectors as broad
as “Commercial Facilities,” “Financial Services,” and
“Healthcare.” The March 2020 CISA list identified
scores of categories of workers, including dentists,
automotive repair workers, news reporters, and
funeral home workers. Although important, these
professions do not typically undertake work that
would otherwise fall to the federal government. And,
similarly, while the federal government may have an
interest in ensuring a stable food supply, it is not
typically the “dut[y]” or “task[]” of the federal
government to process meat for commercial
consumption. See Jacks, 701 F.3d at 1230 (quoting
Watson, 551 U.S. at 152). It cannot be that the federal
government’s mere designation of an industry as
important—or even critical—is sufficient to federalize
an entity’s operations and confer federal jurisdiction. 4
See Maglioli v. All. HC Holdings LLC, 16 F.4th 393,
406 (3d Cir. 2021) (holding that the CISA designation
of nursing homes as critical infrastructure in a
subsequent version of list was not sufficient for the
“acting under” element because “Congress did not
Even Tyson seems to acknowledge that its designation as
“critical infrastructure” meant that the federal government
provided it assistance, rather than the other way around. For
example, CISA and the USDA helped procure PPE for Tyson, and
other federal agencies provided meat-processing employees with
authorization to continue working despite restrictions. But
“[g]overnment advice and assistance” are not enough to
“establish the ‘acting under’ relationship that § 1442(a)(1)
requires.” Graves, 17 F.4th at 770 (explaining that earplug
manufacturer was not “acting under” a federal officer where it
sought input from a U.S. Army audiologist and incorporated that
feedback).
4
App-17
deputize all of these private-sector workers as federal
officers”).
Tyson’s reliance on various communications from
federal officials and federal agencies is likewise
unavailing. No statement issued or action taken
before Tyson shut down its Waterloo facility on April
22—and before Plaintiffs’ relatives contracted COVID19—constituted a federal directive that subjected
Tyson to the guidance and control of the federal
government or enlisted Tyson to undertake a
governmental task. The March 15 conference call with
President Trump served to reassure the country that
the food-processing and retail sectors intended to
remain open and that the federal government was
monitoring the food supply. Other statements by the
President and Vice President only underscored the
importance of the food and agriculture industry. And
the USDA’s March 16 statement reaffirmed that the
Department remained committed to working closely
with those in the food and agriculture industry and
emphasized that ongoing communication would be
necessary. At most, these statements indicate that the
federal government was encouraging Tyson—and
other industries—to continue to operate normally. But
they did not direct or enlist Tyson to fulfill a
government function or even tell Tyson specifically
what to do. 5 See Mays v. City of Flint, 871 F.3d 437,
5 At oral argument, Tyson acknowledged that it was not subject
to a federal “mandate” to remain open, but it asserted that the
“acting under” element is satisfied because it was “affirmatively
encouraged” to stay open and operational. Even if we were to
accept that “encouragement” is sufficient, Tyson still fails to
explain convincingly how its efforts to stay open constituted
“effort[s] to assist, or to help carry out, the duties or tasks of the
App-18
446–47 (6th Cir. 2017) (communications between state
and federal agencies during Flint water crisis—
without a federal order to take any specific action—
could not satisfy the “acting under” element). And
despite this federal encouragement to remain open,
Tyson itself shut down multiple plants in April—
including the Waterloo facility—which indicates that
it retained complete, independent discretion over the
continuity of its operations.
Further, Tyson’s argument that it was subject to
directives arising from President Trump’s invocation
of the DPA fails for different reasons. First, neither of
the statements cited by Tyson—the President’s March
18 remarks and March 24 tweet—mention meatprocessing or food supply. Both, in context, clearly
related to the production and distribution of masks
and ventilators. Second, according to the record before
us, the first time the President mentioned the DPA in
the context of meat and poultry processing was in
Executive Order 13917, which was issued on April 28,
2020, after Tyson had already shut down the Waterloo
facility and after Plaintiffs’ relatives had contracted
COVID-19. In fact, by that point, three of the four
relatives had already died.
Nonetheless, recognizing this timing issue, Tyson
attempts to portray Executive Order 13917 as the
“formalization” of prior federal action rather than the
“commencement” of some new directive. In this vein,
Tyson asserts that the federal officer removal statute
does not demand formality and that the Executive
federal superior.” See Jacks, 701 F.3d at 1230 (quoting Watson,
551 U.S. at 152).
App-19
Order confirms that Tyson was operating under
federal direction from the earliest days of the
pandemic, even if those early federal actions were
informal in nature. But that misses the point. Tyson’s
argument that it was “acting under” federal officers is
untenable not because the federal actions early in the
pandemic were informal, but rather because they
contained no such directive. Those federal actions
embraced a cooperative approach, continued to
recognize the authority of state and local officials, and
merely encouraged various industries to maintain
operations as much as possible while heeding health
and safety guidance. If Executive Order 13917
contained a sufficient directive, 6 it marked a
departure rather than a continuance of prior practice.
In sum, Tyson has failed to show that it was
performing a basic governmental task or operating
We question whether Executive Order 13917 itself would
constitute a directive that could support federal jurisdiction. That
order simply took the preliminary step of finding that the meat
and poultry supply chain met the criteria under the DPA and
delegated authority to the USDA to take appropriate action
under the Act. The order did not take the next step under the
DPA of “requir[ing] that performance under contracts or
orders . . . take priority over performance” of other contracts or
“requir[ing] acceptance and performance of such contracts.” See
50 U.S.C. § 4511(a). After the President signed Executive Order
13917, the USDA expressed its support for the continued
operation of meat and poultry facilities and directed facilities
that were closed to submit documentation of their protocols and
reopen as soon as they could comply with CDC and OSHA
guidance. But we find no evidence in the record that the USDA
exercised its DPA authority to enter into any contracts or order
Tyson to prioritize production for the federal government over
other obligations.
6
App-20
pursuant to a federal directive in March and April of
2020. We thus conclude that Tyson was not “acting
under” a federal officer at the time that Plaintiffs’
relatives contracted COVID-19 and is therefore not
eligible for removal under the federal officer removal
statute. Given that conclusion, we need not reach the
remaining elements of the statute.
IV. Federal Question
In both notices of removal, Tyson also argued that
the Plaintiffs’ petitions “raise[] substantial and
disputed issues of federal law under the Defense
Production Act that must be decided by a federal
forum.” The district court disagreed. When Tyson
submitted its briefing to us, our precedent foreclosed
our review of this alternative ground for removal. See
Jacks, 701 F.3d at 1229 (holding we only had
jurisdiction to review district court’s § 1442(a)(1)
ruling, as our § 1447(d) jurisprudence precluded a
broader review of the district court’s remand decision).
However, after briefing in this case was complete, the
Supreme Court abrogated that precedent in BP P.L.C.
v. Mayor and City Council of Baltimore, holding that
“when a district court’s removal order rejects all of the
defendants’ grounds for removal, § 1447(d) authorizes
a court of appeals to review each and every one of
them.” 141 S. Ct. 1532, 1538 (2021); see also id. at 1542
(“Suppose a court of appeals finds the § 1442 or § 1443
issue a difficult and close one, but believes removal is
clearly and easily warranted on another basis.
Allowing the court to address that easier question and
avoid harder ones may facilitate a prompter resolution
of the proceeding for all involved.”).
App-21
Pursuant to BP, we have jurisdiction to review the
appeal of the district court’s rejection of Tyson’s
federal question basis for removal. Nevertheless, we
conclude that Tyson has abandoned any such
argument. In a footnote in its opening brief, Tyson
simply stated that “Appellants reserve the right to
raise those arguments [about federal question
jurisdiction] should the Supreme Court abrogate that
precedent” from Jacks. Tyson then made no argument
in its opening brief or reply brief about federal
question jurisdiction, despite the fact that Plaintiffs
suggested in their response that the court should
deem the argument waived. Nor did Tyson file any
notice of supplemental authority or raise the issue at
oral argument. We thus deem this argument
abandoned and do not address it. See Rotskoff v.
Cooley, 438 F.3d 852, 854–55 (8th Cir. 2006) (deeming
argument not developed in briefs to be waived); United
States v. Zavala, 427 F.3d 562, 564 n.1 (8th Cir. 2005);
see also Fed. R. App. P. 28(a)(8)(A) (explaining that an
appellant’s brief must contain appellant’s arguments
“and the reasons for them, with citations to the
authorities and parts of the record on which the
appellant relies”).
IV.
For the foregoing reasons, we affirm the district
court’s orders remanding these cases to state court.
App-22
Appendix B
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
________________
No. 21-1010
________________
HUS HARI BULJIC, individually and as administrator
of the estate of Sedika Buljic; HONARIO GARCIA,
individually and as administrator of the estate of
Reberiano Leno Garcia; MIGUEL ANGEL HERNANDEZ,
as co-administrator of the estate of Jose Luis Ayala,
Jr.; ARTURO DE JESUS HERNANDEZ, as coadministrator of the estate of Jose Luis Ayala, Jr.,
v.
Plaintiffs-Appellees,
TYSON FOODS, INC., TYSON FRESH MEATS, INC.; JOHN
H. TYSON; NOEL W. WHITE; DEAN BANKS; STEPHEN R.
STOUFFER; TOM BROWER,
Defendants-Appellants.
MARY OLEKSIUK; ELIZABETH CROSTON,
Defendants,
TOM HART,
Defendant-Appellant,
HAMDIJA BEGANOVIC; JAMES HOOK; RAMIZ MUHELJIC;
GUSTAVO CABAREA; PUM PISNG; ALEX BUFF; WALTER
CIFUENTES; MUWI HLAWNCEU,
Defendants,
CODY BRUSTKERN,
Defendant-Appellant,
App-23
MARK SMITH; JOHN DOES 1-10,
Defendants,
BRET TAPKEN; JOHN CASEY; JAMES HOOK,
Defendants-Appellants.
________________
No. 21-1012
________________
OSCAR FERNANDEZ, individually and as administrator
of the estate of Isidro Fernandez,
v.
Plaintiff-Appellee,
TYSON FOODS, INC., TYSON FRESH MEATS, INC.; JOHN
H. TYSON; NOEL W. WHITE; DEAN BANKS; STEPHEN R.
STOUFFER; TOM BROWER,
Defendants-Appellants.
MARY OLEKSIUK; ELIZABETH CROSTON,
Defendants,
TOM HART,
Defendant-Appellant,
HAMDIJA BEGANOVIC; JAMES HOOK; RAMIZ MUHELJIC;
MISSIA ABAD BERNAL; JOHN AND JANE DOES 1-10,
Defendants,
CODY BRUSTKERN; JOHN CASEY; BRET TAPKEN,
Defendants-Appellants.
________________
Filed: Feb. 22, 2022
________________
App-24
ORDER
________________
The petition for rehearing en banc is denied. The
petition for rehearing by panel is also denied. Judge
Stras did not participate in the consideration or
decision of this matter.
February 22, 2022
Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit.
__________________________________________
/s/ Michael E. Gans
App-25
Appendix C
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF IOWA
________________
No. 20-cv-2055
________________
HUS HARI BULJIC, individually and as administrator
of the estate of Sedika Buljic; HONARIO GARCIA,
individually and as administrator of the estate of
Reberiano Leno Garcia; MIGUEL ANGEL HERNANDEZ
AND ARTURO DE JESUS HERNANDEZ, as coadministrators of the estate of Jose Luis Ayala, Jr.,
v.
Plaintiffs,
TYSON FOODS, INC., TYSON FRESH MEATS, INC.;
JOHN H. TYSON; NOEL W. WHITE; DEAN BANKS;
STEPHEN R. STOUFFER; TOM BROWER, TOM HART,
CODY BRUSTKERN, BRET TAPKEN, JOHN CASEY, and
JAMES HOOK,
Defendants.
________________
Filed: Dec. 28, 2020
________________
ORDER
________________
I.
INTRODUCTION
The matter before the court is Plaintiffs Hus Hari
Buljic’s, Honario Garcia’s, Arturo de Jesus
Hernandez’s and Miguel Angel Hernandez’s
App-26
(collectively, “Plaintiffs”)
(“Motion”) (docket no. 15).
Motion
to
Remand
II. BACKGROUND OF THE CASE
A. General Procedural History
On June 25, 2020, Plaintiffs filed a “Petition at
Law and Demand for Jury Trial” (“Petition”) (docket
no. 3) in the Iowa District Court for Black Hawk
County. On July 27, 2020, Defendants Tyson Foods,
Inc. and Tyson Fresh Meats, Inc. (collectively,
“Tyson”) filed a Notice of Removal (docket no. 1),
bringing the case before this court. 1 On August 26,
2020, Plaintiffs filed the Motion. On September 9,
2020, Tyson filed a Resistance (docket nos. 16-17). 2 On
1 It is “the settled rule that removal under 28 U.S.C. § 1442 can
be effected by any defendant in an action, with or without the
consent of co-defendants.” Alsup v. 3-Day Blinds, Inc., 435
F.Supp.2d 838, 842 (S.D. Ill. 2006); see also Akin v. Ashland
Chemical Co., 156 F.3d 1030, 1034 (10th Cir. 1998) (providing
that 28 U.S.C. § 1442(a)(1) provides a statutory exception that
“allows a federal officer [or any person acting under that officer]
independently to remove a case to federal court even though that
officer is only one of several named defendants”); Ely Valley
Mines, Inc. v. Hartford Acc. & Indem. Co., 644 F.2d 1310, 1315
(9th Cir. 1981) (finding that § 1442 “represents an exception to
the general rule . . . that all defendants must join in the removal
petiton”); Citrano v. John Crane-Houdaille, Inc., 1 F.Supp.3d
459, 465 (D. Md. 2014) (“Unlike removal under § 1441, under
§ 1442(a) the other defendants need not join in or consent for
removal to be proper.”). Here, Tyson is removing this case under
28 U.S.C. § 1442(a). See Notice of Removal at 1. Accordingly, this
action may be removed without consent from the other
Defendants.
2 In its initial Resistance (docket no. 16), Tyson was unable to
attach its Exhibits. On the same date that the Resistance was
filed, Tyson filed a “Notice of Errata” (docket no. 17), which
included the Resistance (docket no. 16) and all pertinent exhibits.
App-27
September 16, 2020, Plaintiffs filed a Reply Brief
(docket no. 18).
On November 6, 2020, Plaintiffs filed a notice of
voluntary dismissal of Defendants Mary A. Oleksiuk,
Elizabeth Croston, Hamdija Beganovic, James Cook,
Ramiz Muheljic, Gustavo Cabarea, Pam Pisng, Alex
Buff, Walter Cifuentes, Muwi Hlawnceu, Mark Smith
and John/Jane Does 1-10. See docket no. 34. On
November 18, 2020, Plaintiffs filed the First Amended
Complaint (docket no. 40). Defendants John Casey
and Bret Tapken were added in the First Amended
Complaint. On December 9, 2020, Plaintiffs filed the
Second Amended Complaint (docket no. 46).
Defendant James Hook was added in the Second
Amended Complaint.
B. Causes of Action Alleged in the Petition
Even though Plaintiffs have filed a Second
Amended Complaint in this case, for purposes of the
Motion, the court considers the complaint, or in this
instance, the Petition that existed at the time that the
Notice of Removal was filed. See Scarlott v. Nissan
North America, Inc., 771 F.3d 883, 888 n.2 (5th Cir.
2014) (citing Boelens v. Redman Homes, Inc., 759 F.2d
504, 507 (5th Cir. 1985); see also Harper v.
AutoAlliance Intern., Inc., 392 F.3d 195, 210 (6th Cir.
2004) (“The existence of subject matter jurisdiction is
determined by examining the complaint as it existed
at the time of removal”); United Farm Bureau Mut.
Ins. Co., Inc. v. Metropolitan Human Relations
Commission, 24 F.3d 1008, 1014 (7th Cir. 1994) (“It is
See docket no. 17. For purposes of this Order, any reference to the
Resistance will be to docket no. 16.
App-28
a fundamental principle of law that whether subject
matter jurisdiction exists is a question answered by
looking to the complaint as it existed at the time the
petition for removal was filed”) (quotation omitted);
Salton v. Polyock, 764 F.Supp.2d 1033, 1035 (N.D.
Iowa 2011) (“[A] fundamental principle of removal
jurisdiction is that whether subject matter jurisdiction
exists is a question answered by looking to the
complaint as it existed at the time the petition for
removal was filed”); Virginia Gay Hospital, Inc. v.
Amerigroup Iowa, Inc., No. C18-112-LTS, 2019 WL
5483827, at *2 (N.D. Iowa Feb. 15, 2019) (same).
In the first cause of action in the Petition
Plaintiffs allege fraudulent misrepresentation and
vicarious liability and seek punitive damages against
Tyson. See Petition ¶¶ 99-113. In the second cause of
action, Plaintiffs allege gross negligence and seek
punitive damages against Defendants John H. Tyson,
Noel W. White, Dean Banks, Stephen R. Stouffer and
Tom Brower (collectively, “Executive Defendants”).
See id. ¶¶ 114-129. In the third cause of action,
Plaintiffs allege gross negligence and fraudulent
misrepresentation and seek punitive damages against
Defendants Tom Hart, James Hook, Bret Tapken,
Cody Brustkern and John Casey (collectively,
“Supervisory Defendants”). 3 Id. ¶¶ 130-151.
3 The Defendants listed as Supervisory Defendants corresponds
to the named Defendants in the Second Amended Complaint.
Additionally, the fourth cause of action in the Petition is no
longer viable as the claims are against Elizabeth Croston, whom
Plaintiffs voluntarily dismissed from this action. See Petition
¶¶ 152-160; Notice of Dismissal (docket no. 34) at 1.
App-29
Specifically, Plaintiffs allege that Tyson “made
numerous false representations” to Plaintiffs’
decedents at the Waterloo facility and “falsely
represented” that: (1) COVID-19 had not been
detected at the facility; (2) COVID-19 was not
spreading through the facility; (3) worker absenteeism
was not related to COVID-19; (4) sick workers were
not permitted to enter the facility; (5) workers from
other Tyson facilities that were shut down due to
COVID-19 outbreaks were not permitted to enter the
Waterloo facility; (6) sick or symptomatic workers
would be sent home immediately and would not be
permitted to return until cleared by health officials;
(7) workers would be notified if they had been in close
contact with an infected co-worker; (8) the workers’
health and safety was a top priority for Tyson; (9)
safety measures implemented at the Waterloo facility
would prevent or mitigate the spread of COVID-19
and protect workers from infection; (10) the Waterloo
facility needed to stay open in order to avoid meat
shortages in the United States; and (11) the Waterloo
facility was a safe work environment. Id. ¶¶ 100101(a)-(k). Plaintiffs allege that Tyson knew that such
representations were false and material. Id. ¶¶ 102103. Further, Plaintiffs allege that Tyson made the
false representations to induce Plaintiffs’ decedents to
continue working despite the uncontrolled COVID-19
outbreak in the Waterloo facility. Id. ¶ 104. Plaintiffs
allege that Plaintiffs’ decedents “accepted and relied”
on Tyson’s representations and Plaintiffs’ decedents
were induced to continue working at the Waterloo
facility. Id. ¶¶ 105-106. Plaintiffs also allege that
Tyson is “vicariously liable for the culpable acts and
omissions committed by all of its agents acting within
App-30
the course and scope of their agency,” including the
Executive Defendants and Supervisory Defendants.
Id. ¶ 108.
Plaintiffs allege that the Executive Defendants
“had a duty to prevent injuries to [Plaintiffs’
decedents]” and breached their duty and “were grossly
negligent” by the following acts and omissions: (1)
failing to develop or implement worksite assessments
to identify COVID-19 risks and prevention strategies
for the Waterloo facility; (2) failing to develop or
implement testing and workplace contact tracing of
COVID-19 positive workers at the Waterloo facility;
(3) failing to develop and implement a comprehensive
screening and monitoring strategy aimed at
preventing the introduction of COVID-19 into the
worksite, including: a program to effectively screen
workers before entry into the workplace; return to
work criteria for workers infected with or exposed to
COVID-19 and criteria for exclusion of sick or
symptomatic workers; (4) allowing or encouraging sick
or symptomatic workers to enter or remain in the
workplace; (5) failing to promptly isolate and send sick
or symptomatic workers home; (6) failing to configure
communal work environments so that workers were
spaced at least six feet apart; (7) failing to modify the
alignment of workstations, including those along
processing lines, so that workers did not face each
other; (8) failing to install physical barriers to
separate or shield workers from each other; (9) failing
to develop, implement or enforce appropriate cleaning,
sanitation and disinfection practices to reduce
exposure or shield workers from COVID-19 at the
Waterloo facility; (10) failing to provide workers with
appropriate personal protective equipment, including
App-31
face coverings; (11) failing to require employees to
wear face coverings; (12) failing to provide adequate
hand washing or hand sanitizing stations throughout
the Waterloo facility; (13) failing to slow production in
order to operate with a reduced work force; (14) failing
to develop, implement or enforce engineering or
administrative controls to promote social distancing;
(15) failing to modify, develop, implement, promote
and educate workers, including workers with limited
English language abilities, regarding revised sick
leave, attendance or incentive policies to ensure that
sick or symptomatic workers stay home; (16) failing to
ensure that workers, including workers with limited
English language abilities, were aware of, or
understood modified sick leave, attendance or
incentive policies; (17) failing to ensure adequate
ventilation in work areas to minimize workers’
potential exposure to COVID-19 and failing to
minimize air flow from fans blowing from one worker
directly onto another worker; (18) failing to establish,
implement, promote and enforce a system for workers,
including those with limited English language
abilities, to alert supervisors if they were experiencing
signs or symptoms of COVID-19 or if they had recent
contact with a suspected confirmed COVID-19 case;
(19) failing to inform workers, including those with
limited English language abilities, who had contact
with a suspected or confirmed COVID-19 case;
(20) failing to educate and train workers and
supervisors, including workers with limited English
language abilities, on how to reduce the spread of
COVID-19 and prevent exposure to COVID-19; (21)
failing to encourage or require workers to stay home
when sick; (22) failing to inform or warn workers that
App-32
individuals suspected or known to have been exposed
to COVID-19 at other Tyson facilities, including the
Columbus Junction facility, were permitted to enter
the Waterloo facility without adequately quarantining
or testing negative for COVID-19 prior to entry; (23)
operating the Waterloo facility in a manner that
resulted in more than 1,000 infected workers and five
deaths;
(24) making
false
and
fraudulent
misrepresentations on behalf of Tyson; (25) failing to
provide and maintain a safe work environment; (26)
failing to take reasonable precautions to protect
workers from foreseeable dangers; and (27) failing to
abide by state and federal regulations and guidance.
Id. ¶¶ 118-119(a)-(aa). Based on the foregoing,
Plaintiffs allege that the Executive Defendants’ “acts
and omissions were grossly negligent, reckless,
intentional, and constituted willful and wanton
disregard for the safety of workers.” Id. ¶ 120.
Plaintiffs allege that “[t]he Executive Defendants
knew of the danger to be apprehended” and “knew or
should have known that their conduct was probable to
cause employees to become seriously ill or die.” Id.
¶¶ 122-123.
Plaintiffs allege that the Supervisory Defendants
“had a duty to prevent injuries to [Plaintiffs’
decedents]” and breached their duty and “were grossly
negligent” through acts and omissions identical to the
acts and omissions alleged against the Executive
Defendants. Id. ¶¶ 134-135(a)-(aa); compare id.
¶ 119(a)-(aa) with id. ¶ 135(a)-(aa). Plaintiffs allege
that the Supervisory Defendants’ “acts and omissions
were grossly negligent, reckless, intentional, and
constituted willful and wanton disregard for the safety
of workers.” Id. ¶ 136. Plaintiffs allege that the
App-33
Supervisory Defendants “consciously failed to avoid
the danger,” even though they “recognized the danger
of a COVID-19 outbreak at the facility and failed to
take sufficient precautions to avoid an outbreak.” Id.
¶ 140. Plaintiffs also allege that:
The
Supervisory
Defendants
made
fraudulent
misrepresentations
to
the
Waterloo workforce. They made false
statements concerning the presence and
spread of COVID-19 at the Waterloo [f]acility,
the importance of protecting and keeping
employees safe, the breadth and efficacy of
safety measures implemented at the facility,
and the importance of keeping the facility
open. The Supervisory Defendants knew
these representations were false; they knew
or should have known it was wrong to make
such false representations, and they intended
to deceive and induce Waterloo employees,
including [Plaintiffs’ decedents] to continue
working despite the danger of COVID-19.
Id. ¶ 142. Specifically, Plaintiffs allege that the
Supervisory Defendants “falsely represented” to
Plaintiffs’ decedents that: (1) COVID-19 had not been
detected at the facility; (2) COVID-19 was not
spreading through the facility; (3) worker absenteeism
was not related to COVID-19; (4) sick workers were
not permitted to enter the facility; (5) workers from
other Tyson facilities that had shut down due to
COVID-19 outbreaks were not permitted to enter the
Waterloo facility; (6) sick or symptomatic workers
would be sent home immediately and would not be
permitted to return until cleared by health officials;
App-34
(7) workers would be notified if they had been in close
contact with an infected co-worker; (8) the workers’
health and safety was a top priority for Tyson;
(9) safety measures implemented at the Waterloo
facility would prevent the spread of COVID-19 and
protect the workers from infection; (10) the Waterloo
facility needed to stay open in order to avoid meat
shortages in the United States; and (11) the Waterloo
facility was a safe work environment. Id. ¶ 143(a)-(k).
Further, Plaintiffs allege that the Supervisory
Defendants knew that such representations were false
and material. Id. ¶¶ 144-145. Plaintiffs allege that the
Supervisory
Defendants
made
the
false
representations to induce Plaintiffs’ decedents to
continue working despite the uncontrolled COVID-19
outbreak in the Waterloo facility, Plaintiffs’ decedents
“accepted and relied” on the Supervisory Defendants’
representations and Plaintiffs’ decedents were
induced to continue working at the Waterloo facility.
Id. ¶¶ 146-148.
No party requests oral argument and the court
finds that oral argument is unnecessary. The matter
is fully submitted and ready for decision.
C. Factual Allegations in the Petition
On March 13, 2020, President Donald Trump
declared a national emergency due to the coronavirus
pandemic. Id. ¶ 51. Also, on or about March 13, 2020,
Tyson “suspended all [United States] commercial
business travel, [forbade] all non-essential visitors
from entering Tyson offices and facilities, and
mandated that all non-critical employees at its
[United States] corporate office locations work
remotely.” Id. ¶ 52. On March 17, 2020, Governor Kim
App-35
Reynolds declared a public health disaster emergency
for the State of Iowa due to the coronavirus pandemic.
Id. ¶ 53.
Tyson’s facility in Waterloo, Iowa, is its “largest
pork plant in the United States.” Id. ¶ 56. The facility
employs approximately 2,800 workers and processes
approximately 19,500 hogs per day. Id. By late-March
or early April, the Executive Defendants, Supervisory
Defendants and other Tyson managers were aware
that COVID-19 was spreading throughout the
Waterloo facility. Id. ¶ 58. On April 3, 2020, the CDC
recommended that all Americans wear face coverings
in public to prevent the spread of COVID-19. Id. ¶ 59.
Tyson did not provide its workers at the Waterloo
facility with sufficient face coverings or other personal
protective equipment. Id. ¶ 60. Tyson also “did not
implement or enforce sufficient social distancing
measures at the Waterloo [f]acility.” Id. ¶ 61.
On or about April 6, 2020, after more than two
dozen employees tested positive for COVID-19, Tyson
temporarily suspended operations at the Columbus
Junction, Iowa, facility. Id. ¶ 62. Also, on or about
April 6, 2020, Tyson installed temperature-check
stations at the entrances to the Waterloo facility. Id.
¶ 63.
On April 10, 2020, Black Hawk County Sheriff
Tony Thompson and Black Hawk County health
officials visited Tyson’s Waterloo facility. Id. ¶ 64.
According to Sheriff Thompson, working conditions at
the Waterloo facility were poor, with workers
“crowded elbow to elbow” and “most without face
coverings.” Id. ¶ 65. “Sheriff Thompson and other local
officials lobbied Tyson to close the plant, but [Tyson]
App-36
refused.” Id. ¶ 66. On April 12, 2020, approximately
two-dozen Tyson employees were seen at the
emergency department at MercyOne Waterloo
Medical Center. Id. ¶ 67.
On April 14, 2020, Black Hawk County officials
asked Tyson to temporarily shut down the Waterloo
facility. Id. ¶ 68. Tyson did not shut the facility down.
Id. On April 16, 2020, Tyson publicly denied a COVID19 outbreak at the Waterloo facility. Id. ¶ 69. On or
about April 17, 2020, “twenty local elected officials
sent a letter to Tyson . . . imploring the company to
take steps ‘to ensure the safety and well-being of
Tyson’s valuable employees and our community’ and
to ‘voluntarily cease operations on a temporary basis
at [the] Waterloo [f]acility so that appropriate
cleaning and mitigation strategies [could] take place.’”
Id. ¶ 70 (first alteration in original). Further, the
letter stated that “at least one Tyson employee had
informed Waterloo health care providers that he or
she had transferred to the Waterloo [f]acility from
Tyson’s Columbus Junction plant, which had closed
due to a COVID-19 outbreak” and “workers did not
have sufficient personal protective equipment; social
distancing measures were not being implemented or
enforced on the plant floor or in employee locker
rooms; nurses at the Waterloo [f]acility lacked
sufficient medical supplies and were unable to
accurately conduct temperature checks; and because
of language barriers, non-English speaking employees
mistakenly believed they could return to work while
sick.” Id.
After the Columbus Junction facility was shut
down due to a COVID-19 outbreak, Tyson transferred
App-37
workers from Columbus Junction to the Waterloo
facility. Id. ¶ 72. “Tyson failed to test or adequately
quarantine workers from the Columbus Junction
[facility] before allowing them to enter the Waterloo
[f]acility.” Id. ¶ 73. Also, Tyson allowed subcontractors
from facilities that had shut down due to COVID-19
outbreaks to enter the Waterloo facility. Id. ¶ 74.
“Tyson did not test or adequately quarantine these
subcontractors before allowing them to enter and
move about the Waterloo [f]acility.” Id. ¶ 75. Tyson
“permitted or encouraged sick and symptomatic
employees and asymptomatic employees known or
suspected to have been exposed to COVID-19 to
continue working at the Waterloo [f]acility.” Id. ¶ 76.
“At least one worker at the facility vomited on the
production line and management allowed him to
continue working and return to work the next day.” Id.
Supervisors and managers at the Waterloo facility
told employees that their co-workers were sick with
the flu, not COVID-19, and told them not to discuss
COVID-19 at work. Id. ¶ 78.
“[H]igh-level Tyson executives began lobbying the
White House for COVID-19 related liability
protections as early as March and continued their
lobbying efforts throughout April.” Id. ¶ 79. Tyson
executives also lobbied members of Congress for
COVID-19-related liability protections. Id. ¶ 80.
Further, Tyson executives lobbied Governor Reynolds
for COVID-19-related liability protections. Id. ¶ 81.
On April 20, 2020, Tyson began shutting down
operations at its Waterloo facility due to the lack of a
healthy labor force, but the facility did not shut down
until April 22, 2020, after it had processed the
App-38
remaining hogs in its cooler. Id. ¶ 84. On April 22,
2020, Tyson indefinitely suspended operations at the
Waterloo facility. Id. ¶ 85. On April 28, 2020,
President Trump “signed an executive order
classifying meat processing plants as essential
infrastructure that must remain open,” in order “to
avoid risk to the nation’s food supply.” Id. ¶ 89.
The Black Hawk County Health Department
recorded more than 1,000 COVID-19 infections among
Tyson employees, which is more than one-third of the
Waterloo facility workforce. Id. ¶ 91. Five workers
from the Waterloo facility died. Id. On April 18, 2020,
Sedika Buljic died from complications due to COVID19. Id. ¶ 3. On April 23, 2020, Reberiano Garcia died
from complications due to COVID-19. Id. ¶ 6. On May
25, 2020, Jose Ayala, Jr. died from complications due
to COVID-19. Id. ¶ 9.
III. NOTICE OF REMOVAL
In the Notice of Removal, Tyson asserts that this
court has subject matter jurisdiction because
Plaintiffs’ Petition “challenges actions taken by Tyson
at the direction of a federal officer.” Notice of Removal
at 1. Tyson reads Plaintiffs’ Petition to argue that, “in
effect . . . Tyson should have shut down its facility in
Waterloo, Iowa during the COVID-19 pandemic.” Id.
at 3. Tyson maintains, however, that the Waterloo
facility “was operating pursuant to the President of
the United States’ authority to order continued food
production and under the direct supervision of the
U.S. Secretary of Agriculture.” Id. Tyson emphasizes
an Executive Order, dated April 28, 2020, which states
that “‘[i]t is important that processors of beef, pork,
and poultry . . . in the food supply chain continue
App-39
operating and fulfilling orders to ensure a continued
supply of protein for Americans’ and any ‘closures [of
such facilities] threaten the continued functioning of
the national meat and poultry supply chain’ and
‘undermin[e] critical infrastructure during the
national emergency.’” Id. (alterations in original)
(quoting Executive Order on Delegating Authority
under the DPA with respect to Food Supply Chain
Resources during the National Emergency caused by
the Outbreak of COVID-19, 2020 WL 2060381, at *1
(Apr. 28, 2020)). Tyson maintains that, because it was
“under a Presidential order to continue operations
pursuant to supervision of the federal government and
pursuant to federal guidelines and directives,
including directives from the Secretary of Agriculture
and guidance from the CDC and OSHA, federal court
is the proper forum for resolving this case.” Id.
More specifically, Tyson offers the following
timeline in support of its position that it was acting
under the direction of a federal officer:
On March 13, 2020, the President declared “a
National Emergency in response to the
COVID-19 outbreak. . . .” Soon after, on
March 16, [2020] the President issued
“Coronavirus Guidelines” that emphasized
that employees in “critical infrastructure
industry[ies]”—including companies like
Tyson that are essential to maintaining foodsupply chains and ensuring the continued
health and safety of all Americans—have a
‘special responsibility to maintain [their]
normal work schedule.” Exec. Office of Pres.,
The President’s Coronavirus Guidelines for
App-40
America at 2 (Mar. 16, 2020). On March 24,
President Trump approved a major disaster
declaration under the federal Stafford Act for
the State of Iowa in response to the COVID19 outbreak.
Id. at 4 (second and third alteration in original). Tyson
emphasizes that, on April 28, 2020, President Trump
issued an executive order “invoking his authority
under the Defense Production Act . . . the President
again instructed that Tyson and other meat and
poultry processing companies to stay open and
continue operations, subject to the supervision of the
Secretary of Agriculture.” Id. at 4-5. Further, Tyson
emphasizes that, on May 5, 2020, the Secretary of
Agriculture issued a letter to Governors stating that:
Effective immediately, I have directed meat
and poultry processors to utilize the guidance
issued on Sunday, April 26, 2020, by CDC and
OSHA specific to the meat and poultry
processing industry to implement practices
and protocols for staying operational or
resuming operations while safeguarding the
health of workers and the community. . . .
The U.S. Department of Agriculture (USDA)
has also directed meat and poultry processing
plants currently closed and without a clear
timetable for near-term reopening to submit
to USDA written documentation of their
protocol, developed based on the CDC/OSHA
guidance, and resume operations as soon as
they are able after implementing the
CDC/OSHA guidance for the protection of
workers.
App-41
Id. at 6 (quoting U.S. Department of Agriculture,
Letter to Governors (May 5, 2020)). Further, Tyson
notes that, on May 18, 2020, the USDA and United
States Food and Drug Administration (“FDA”) entered
into a memorandum of understanding explaining each
Department’s role in utilizing the DPA to regulate
food producers during the COVID-19 outbreak. Id.
Tyson points out that the memorandum stated that
the USDA “retained exclusive delegated authority
under the DPA to issue orders regarding domestic food
producers.” Id. (quotation omitted). Tyson maintains
that its actions to keep operating the Waterloo facility
stem from “the authority, orders, detailed regulation,
and supervision of the President and Secretary of
Agriculture under the DPA” and, therefore, it was
“‘acting under’ federal officers.” Id. at 7.
Further, in the Notice of Removal, Tyson asserts
that “[t]here is a causal connection between the
Petition’s allegations and the actions [it] took at the
direction of the President and Secretary of
Agriculture.” Id. Tyson frames Plaintiffs’ Petition as
containing allegations of liability “in tort for not
shutting down the Waterloo facility.” Id. at 7-8. Tyson
also argues that the Petition “challenges specific
measures [it] adopted or allegedly failed to adopt in
response to the coronavirus” but maintains that “the
measures that [it] took were implemented at the
express direction of federal officers” and any such
disputes are for a federal court to answer, not a state
court. Id. at 8.
Additionally, in the Notice of Removal, Tyson
asserts, that it has colorable federal defenses under
App-42
the FMIA, the DPA and President Trump’s April 28,
2020 Executive Order. See id. at 8-9.
Finally, in the Notice of Removal, Tyson contends
that removal is appropriate because the court has
federal question jurisdiction. Id. at 9. Specifically,
Tyson asserts that Plaintiffs’ Petition necessarily
raises substantial federal issues making federal
jurisdiction appropriate. See generally id. at 9-12.
IV. MOTION TO REMAND
A. Parties’ Arguments
Plaintiffs argue that “[f]ederal officer removal is
improper because Tyson failed to identify any federal
directive that existed at the time decedents were
working for Tyson, failed to establish causation
between a directive and the company’s tortious
conduct, and failed to raise a colorable federal
defense.” Plaintiffs’ Brief in Support of Motion to
Remand (“Plaintiffs’ Brief”) (docket no. 15-1) at 4.
Plaintiffs’ reading of Tyson’s Notice of Removal is that
Tyson primarily relies on President Trump’s April 28,
2020 Executive Order, instructing meat processing
plants to remain open, as its theory for federal officer
removal. See id. Plaintiffs maintain that Tyson’s
theory of federal officer removal fails for four reasons.
First, Plaintiffs argue that they “did not sue Tyson for
actions taken subsequent to President Trump’s April
28[, 2020] Executive Order.” Id. at 5. Second, Plaintiffs
assert that contrary to Tyson’s reading of their
Petition, they “did not sue Tyson . . . for failing to shut
down the Waterloo facility”; instead, they “sued Tyson
for fraudulent misrepresentation and seek to hold the
company vicariously liable for its executives’ and
managers’ gross negligence.” Id. Plaintiffs maintain
App-43
that “the only action that Tyson claims to have taken
at the direction of a federal officer (keeping the facility
open) does not serve as a basis for [their] claims.” Id.
at 6. Third, Plaintiffs argue that, because operations
at the Waterloo facility were suspended from April 22,
2020 through May 7, 2020, “Tyson’s assertion that it
did not pause production because it was acting under
President Trump’s April 28[, 2020] Executive Order,
is blatantly false.” Id. Fourth, Plaintiffs argue that:
a federal officer did not order Tyson to make
fraudulent
misrepresentations
to
its
employees, prevent the company from
providing employees with personal protective
equipment, prohibit the company from
implementing and enforcing social distancing
measures, or forbid the company from
implementing basic safety measures to
protect its employees. Accordingly, federal
officer removal is improper because Tyson
was not “acting under” a federal officer when
it exposed Ms. Buljic, Mr. Garcia, and Mr.
Ayala to COVID-19.
Id.
Plaintiffs also argue that “Tyson failed to
demonstrate that the acts for which they were sued
occurred because of what they were asked to do by the
[g]overnment.” Id. Plaintiffs maintain that, “[b]ecause
Tyson unnecessarily and recklessly exposed Ms.
Buljic, Mr. Garcia, and Mr. Ayala to COVID-19 weeks
before April 28[, 2020], there is no causal connection
between Tyson’s . . . conduct and the President’s
Executive Order.” Id. at 7.
App-44
Further, Plaintiffs argue that “Tyson failed to
articulate a colorable federal defense.” Id. Plaintiffs
maintain that neither express preemption under the
Federal Meat Inspection Act (“FMIA”), nor ordinary
preemption under President Trump’s April 28, 2020
Executive Order constitute a colorable federal defense.
See id. at 8. Specifically, Plaintiffs argue that “FMIA
preempts states from regulating the inspection,
handling, and slaughter of livestock for human
consumption” but FMIA “does not preempt wrongful
death claims arising under state law.” Id. (quotation
and citation omitted). Plaintiffs also argue that
“neither the Defense Production Act [(“DPA”)] nor the
President’s April 28[, 2020] Executive Order preempt
Plaintiffs’ claims” because “Plaintiffs’ claims did not
arise under the executive order or the DPA and both
are wholly irrelevant to Plaintiffs’ claims.” Id. at 8-9.
Finally, Plaintiffs argue that “[r]emoval is not
warranted on the basis of federal question
jurisdiction.” Id. at 9. Plaintiffs maintain that their
“causes of action are made entirely in terms of state
law—specifically, for Iowa common law negligence
and fraudulent misrepresentation” and these
“common law tort claims do not create a substantial
question of federal law[,]” making “removal based on
federal question jurisdiction improper.” Id. Further,
Plaintiffs argue that “Tyson’s attempt to transform
this action into one arising under federal law violates
the well-pleaded complaint rule.” Id. Plaintiffs also
argue that, “[b]ecause Ms. Buljic, Mr. Garcia, and Mr.
Ayala contracted COVID-19 and stopped working
weeks before President Trump invoked the DPA,
Plaintiffs’ claims do not depend, in any way, on the
interpretation or application of the DPA. It follows,
App-45
therefore, that federal question jurisdiction does not
exist.” Id. at 10. Plaintiffs assert that “reference to
federal guidance and regulations does not confer
federal question jurisdiction.” Id. Plaintiffs maintain
that “[m]erely referencing federal regulations within
the context of state law negligence claims does not
confer federal question jurisdiction.” Id. at 11.
Plaintiffs state that they “referenced CDC guidance
and OSHA regulations merely as standards upon
which to measure Defendants’ negligence. Plaintiffs
do not claim relief under CDC guidance or OSHA
regulations, but solely under Iowa tort law.” Id.
Additionally, Plaintiffs assert that they are
“entitled to attorneys’ fees and costs.” Id. at 12.
Plaintiffs maintain that “it was objectively
unreasonable for Tyson to remove this case on the
basis of an executive order issued after Plaintiffs’
claims accrued.” Id. Plaintiff request the imposition of
“costs and attorneys’ fees associated with this
proceeding.” Id.
In response, Tyson argues that “[t]his [c]ourt has
jurisdiction under the federal officer removal statute.”
Resistance at 14. Tyson asserts that, “[f]or removal to
be proper, [it] need only show that it is ‘plausible’ that
it was acting under the direction of federal officers[.]”
Id. at 15 (citing Betzner v. Boeing Co., 910 F.3d 1010,
1013-14 (7th Cir. 2018)). 4 Tyson maintains that it
4 Tyson overreaches with its citation to Betzner for the
proposition that it “need only show that it is ‘plausible’ that it
was acting under the direction of federal officers.” Initially, the
court notes that the citation to pages 1013-14 in Betzner is
incorrect for Tyson’s proposition. Significantly, however, in
Betzner, the Seventh Circuit Court of Appeals did not hold that a
defendant “need only show that it is plausible that the defendant
App-46
“was acting at the direction of federal officers in a time
of emergency to provide the food security that the
government desired.” Id. Further, Tyson asserts that
“federal officers designated Tyson and its employees
as ‘critical infrastructure,’ and the whole point of that
designation is to continue operations during an
emergency, working with the Department of
Homeland Security and USDA, the designated leader
with respect to the Food and Agricultural Sector of
‘critical infrastructure.’” Id. at 15-16.
Next, Tyson argues that “[t]here is sufficient
causal nexus between Tyson’s actions and federal
directions.” Id. at 17. Tyson notes that the federal
officer removal statute was amended in 2011 and, as
amended, the statute “no longer imposes a ‘direct
causal nexus’ requirement” because Congress
“‘broadened federal officer removal to actions, not just
causally connected, but alternatively connected or
associated, with acts under color of federal office.’” Id.
at 18 (quoting Latiolais v. Huntington Ingalls, Inc.,
951 F.3d 286, 292 (5th Cir. 2020)). Tyson asserts that
it “must demonstrate only that Plaintiffs’ claims are
connected or associated with an act under color of
federal office.” Id. (quotation omitted). Tyson argues
that:
Plaintiffs’ claims easily satisfy the “minimal
‘causal connection’” required by Section
was acting under the direction of federal officers”; instead, the
Seventh Circuit found that “Boeing plausibly alleged that it acted
under federal officers when it contracted to manufacture heavy
bomber aircraft for the United States Air Force, and that it acted
under the military’s detailed and ongoing control.” 910 F.3d at
1015.
App-47
1442(a). . . . Since Plaintiffs incorrectly argue
that Tyson was not following federal
directions before [President Trump’s April 28,
2020 Executive Order was issued], their
claims are obviously connected to the federal
direction to (a) continue operations and (b) do
so in compliance with CDC and OSHA
workplace
safety
guidelines. . . . Tyson’s
operations under federal direction is
therefore directly related to Plaintiff[s’] claim
of workplace injury.
Id.
Tyson also argues that it has “colorable federal
defenses.” Id. Tyson maintains that the FMIA
preempts Plaintiffs’ claims. Id. at 18-19 (citing 21
U.S.C. § 678). Tyson maintains that § 678 “‘sweeps
widely’ and ‘prevents a State from imposing any
additional or different—even if non-conflicting—
requirements that fall within the scope of the Act and
concern a slaughterhouse’s facilities or operations.” Id.
at 19 (quoting Nat’l Meat Ass’n v. Harris, 565 U.S. 452,
459-60 (2012)). Specifically, Tyson argues that “the
alleged failings Plaintiffs plead are ‘in addition to, or
different than,’ the requirements that FSIS [(“Food
Safety and Inspection Service”)] has imposed
regarding employee hygiene and infectious disease—
and therefore are preempted under the express terms
of 21 U.S.C. § 678.” Id. at 20. Tyson asserts that
“[p]reemption applies wherever Plaintiffs seek to
impose, as a matter of state law, different
requirements for meat-processing employees than
those adopted by the Department of Agriculture.” Id.
at 21.
App-48
Tyson also argues that, “[a]t federal direction,
Tyson was (and is) required to continue operating its
meat and poultry processing facilities—including the
Waterloo facility—consistent with the CDC’s and
OSHA’s guidance.” Id. at 22. Tyson maintains that
“[t]hose directives preempt any attempt by the states
to strike a different policy balance between securing
the national food supply and stemming the spread of
COVID-19.” Id.
Finally, Tyson argues that “[t]he [c]ourt has
federal question jurisdiction because Plaintiffs’ claims
necessarily raise substantial and disputed issues of
federal law.” Id. at 23 (citing Grable & Sons Metal
Prod., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314
(2005)). Tyson asserts that “[m]ultiple federal issues
are plainly raised by the Petition . . . and they
permeate every aspect of Plaintiffs’ claims—from the
equipment Tyson allegedly provided . . . to Tyson’s
continued operation despite alleged local authorities’
requests for Tyson to close[.]” Id. at 24. Tyson also
argues that Plaintiffs ignore that it was federally
designated as “critical infrastructure” and received
directions “to continue operating in this national
emergency” and “whether Tyson followed those
federal directions is an issue of federal law that should
be resolved by a federal court.” Id.
In reply, Plaintiffs note that “the Notice of
Removal only identifies federal directives that were
issued after Ms. Buljic, Mr. Garcia, and Mr. Ayala
contracted COVID-19 and stopped working.” Reply
Brief at 1. Plaintiffs assert that, “[b]ecause [their]
claims accrued before April 28[, 2020], these directives
have no bearing on this case.” Id.
App-49
Further, Plaintiffs argue that they:
did not sue Tyson for operating its Waterloo
[f]acility as critical infrastructure. Plaintiffs
sued Tyson for making numerous fraudulent
representations to employees, failing to
provide personal protective equipment,
failing to implement social distancing
measures, and failing to enact basic measures
to protect employees from COVID-19. Tyson’s
assertion that it operated the Waterloo
[f]acility as critical infrastructure is
irrelevant to Plaintiffs’ claims.
Critical
infrastructure
or
not,
the
[g]overnment did not order Tyson to make
fraudulent representations to its employees,
prevent the company from providing
employees
with
personal
protective
equipment, prohibit the company from
implementing and enforcing social distancing
measures, or forbid the company from
implementing basic safety measures to
protect its employees. Accordingly, federal
officer removal is improper because Tyson
was not “acting under” a federal officer when
it needlessly and knowingly exposed Ms.
Buljic, Mr. Garcia, and Mr. Ayala to COVID19.
Id. at 2.
Plaintiffs also argue that neither the FMIA nor
the DPA preempts their claims. Id. Plaintiffs assert
that Tyson’s contention that the FMIA preempts their
“common law fraudulent misrepresentation and
personal injury claims is entirely implausible, wholly
App-50
insubstantial, absurdly frivolous—and plainly made
for the sole purpose of obtaining federal jurisdiction.”
Id. Further, Plaintiffs argue that preemption under
the April 28, 2020 Executive Order and DPA are not
colorable defenses “because President Trump invoked
the DPA two weeks after Ms. Buljic, Mr. Garcia, and
Mr. Ayala contracted COVID-19 and stopped working.
Though Tyson now asserts otherwise . . . these are the
only defenses raised in the Notice of Removal” and
“Tyson failed to articulate a colorable defense.” Id. at
3.
B. Applicable Law
1.
Federal Jurisdiction
“‘Federal courts are courts of limited jurisdiction,’
possessing ‘only that power authorized by
Constitution and statute.’” Eckerberg v. Inter-State
Studio & Publ’g Co., 860 F.3d 1079, 1084 (8th Cir.
2017) (quoting Gunn v. Minton, 568 U.S. 251, 256
(2013)). “The requirement that jurisdiction be
established as a threshold matter ‘spring[s] from the
nature and limits of the judicial power of the United
States’ and is ‘inflexible and without exception.’” Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95
(1998) (alteration in original) (quoting Mansfield, C. &
L. M. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884)).
2.
Removal to Federal Court
“A defendant may remove a state law claim to
federal court when the federal court would have had
original jurisdiction if the suit originally had been
filed there.” Phipps v. F.D.I.C., 417 F.3d 1006, 1010
(8th Cir. 2005). Original subject matter jurisdiction
can be established in two ways: (1) by alleging a claim
arising under federal law, see 28 U.S.C. § 1331 (“The
App-51
district courts shall have original jurisdiction of all
civil actions arising under the Constitution, laws, or
treaties of the United States”), or (2) by alleging
diversity of citizenship between the parties, see 28
U.S.C. § 1332(a)(1) and (a)(2) (“The district courts
shall have original jurisdiction of all civil actions
where the matter in controversy exceeds the sum or
value of $75,000 . . . and is between . . . (1) citizens of
different States; [or] (2) citizens of a State and citizens
or subjects of a foreign state. . . .”).
Generally, removal based on federal question
jurisdiction is based on the “well-pleaded complaint”
rule. Phipps, 417 F.3d at 1010. The “well-pleaded
complaint” rule provides that “federal jurisdiction
exists only when a federal question is presented on the
face of the plaintiff’s properly pleaded complaint.”
Markham v. Wertin, 861 F.3d 748, 754 (8th Cir. 2017)
(quoting Caterpillar Inc. v. Williams, 482 U.S. 386,
392 (1987)). “The rule also ‘makes plaintiff the master
of the claim,’ allowing the plaintiff to ‘avoid federal
jurisdiction by exclusive reliance on state law.’”
Phipps, 417 F.3d at 1010 (quoting Caterpillar Inc., 482
U.S. at 392).
“[T]he vast majority of cases brought under the
general federal question jurisdiction of the federal
courts are those in which federal law creates the cause
of action.” Merrell Dow Pharm. Inc. v. Thompson, 478
U.S. 804, 808 (1986). A federal question is also raised
when “the plaintiff’s right to relief necessarily depends
on resolution of a substantial question of federal law.”
Peters v. Union Pac. R.R. Co., 80 F.3d 257, 260 (8th
Cir. 1996) (quoting Franchise Tax Bd. v. Constr.
Laborers Vacation Tr., 463 U.S. 1, 28 (1983)).
App-52
However, “the mere presence of a federal issue in a
state cause of action does not automatically confer
federal-question jurisdiction.” Merrell Dow, 478 U.S.
at 813. “[A] complaint alleging a violation of a federal
statute as an element of a state cause of action, when
Congress has determined that there should be no
private, federal cause of action for the violation, does
not state a claim ‘arising under the Constitution, laws,
or treaties of the United States.’” Id. at 817 (quoting
28 U.S.C. § 1331).
The party seeking removal bears the burden of
establishing federal subject matter jurisdiction. See
Cent. Iowa Power Coop v. Midwest Indep.
Transmission Sys. Operator, Inc., 561 F.3d 904, 912
(8th Cir. 2009). Additionally, the court is required to
resolve all doubts about whether it has jurisdiction in
favor of remand. See Baker v. Martin Marietta
Materials, Inc., 745 F.3d 919, 923 (8th Cir. 2014).
3.
Removal
Statute
Based
on
Federal
Officer
28 U.S.C § 1442(a)(1) provides in pertinent part
that:
A civil action . . . that is commenced in 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 or 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 any agency thereof, in an
official or individual capacity, for or
App-53
relating to any act under color of such
office[.] . . .
Id. Removal under § 1441(a)(1) requires four
elements: “(1) a defendant has acted under the
direction of a federal officer, (2) there was a causal
connection between the defendant’s actions and the
official authority, (3) the defendant has a colorable
federal defense to the plaintiff’s claims, and (4) the
defendant is a ‘person,’ within the meaning of the
statute.” Jacks v. Meridian Resource Co., LLC, 701
F.3d 1224, 1230 (8th Cir. 2012). In a federal officer
removal action, as in other removal actions, “[t]he
party seeking removal bears the burden of proving the
grounds for its motion.” Ruppel v. CBS Corp., 701 F.3d
1176, 1180 (7th Cir. 2012); see also Betzner v. Boeing
Company, 910 F.3d 1010, 1014 (7th Cir. 2018)
(providing that, in the context of federal officer
removal, “[t]he party seeking removal bears the
burden of establishing federal jurisdiction”); Bailey v.
Monsanto Company, 176 F.Supp.3d 853, 869 (E.D. Mo.
2016) (providing that the “removing party bears the
burden of proving the grounds supporting federal
officer removal”) (citing Ruppel, 701 F.3d at 1180);
O’Brien v. Cessna Aircraft Co., No. 8:09CV40, 2010
WL 4721189, at *4 (D. Neb. July 21, 2010) (providing
that the party that removed the case “has the burden
of establishing federal officer jurisdiction under 28
U.S.C. § 1442(a)(1)”).
“[T]he federal officer removal statute was
designed to avert various forms of state court
prejudice against federal officers or those private
persons acting as an assistant to a federal official in
helping that official carry out federal law.” Jacks, 701
App-54
F.3d at 1231. However, “not all relationships between
private entities or individuals and the federal
government suffice to effect removal under the federal
officer removal statute.” Id. In order to fall under the
federal officer removal statute, “[t]he assistance that
private contractors provide federal officers [must go]
beyond simple compliance with the law and help[]
officers fulfill other basic government tasks.” Id.
(alterations in original) (quoting Watson v. Philip
Morris Cos., Inc., 551 U.S. 142, 153 (2007)).
In considering the first element, acting under the
direction of a federal officer, the Supreme Court has
explained that “[t]he words ‘acting under’ are broad”
and “the statute must be ‘liberally construed’” but the
“broad language is not limitless.” Watson, 551 U.S. at
147. The Supreme Court has interpreted the word
“under” to mean “a relationship that involves acting in
a certain capacity, considered in relation to one
holding a superior position or office” and “typically
involves subjection, guidance, or control.” Id. at 151
(quotations omitted). Further, the Supreme Court
explained that “the private person’s ‘acting under’
must involve an effort to assist, or to help carry out,
the duties or tasks of the federal superior.” Id. at 152.
“[T]he help or assistance necessary to bring a private
person within the scope of the statute does not include
simply complying with the law.” Id. Recently, the First
Circuit Court of Appeals succinctly summarized the
discussion of “acting under” in Watson as follows,
“‘[a]cting under’ connotates subjection, guidance, or
control and involves an effort to assist, or to help carry
out, the duties or tasks of the federal superior.” Rhode
Island v. Shell oil Products Co., L.L.C., 979 F.3d 50,
59 (1st Cir. 2020).
App-55
The Third Circuit Court of Appeals provides a
useful explanation of the second element, requiring a
causal connection between the defendant’s actions and
the official authority:
[B]efore 2011, proponents of removal
jurisdiction under § 1442 were required to
“demonstrate that the acts for which they
[we]re being sued” occurred at least in part
“because of what they were asked to do by the
[g]overnment.” Isaacson [v. Dow Chemical
Co.,] 517 F.3d [129,] 137 [(2d Cir. 2008)]. In
2011, however, the statute was amended to
encompass suits “for or relating to any act
under color of [federal] office.” 28 U.S.C.
§ 1442(a)(1) (2011). . . . [T]he Supreme Court
has defined [“or relating to”] in the context of
another statute: “The ordinary meaning of
the [] words [‘relating to’] is a broad one—‘to
stand in some relation; to have bearing or
concern; to pertain; refer, to bring into
association with or connection with.’” Morales
v. Trans World Airlines, Inc., 504 U.S. 374,
383, 112 S. Ct. 2031, 119 L.Ed.2d 157 (1992)
(quoting Black’s Law Dictionary 1158 (5th ed.
1979)); see also Shaw v. Delta Air Lines, Inc.,
463 U.S. 85, 96-97 & n.16, 103 S. Ct. 2890, 77
L.Ed.2d 490 (1983) (same). Thus, we find that
it is sufficient for there to be a “connection” or
“association” between the act in question and
the federal office. Our understanding
comports with the legislative history of the
amendment to § 1442(a)(1), which shows that
the addition of the words “or relating to” was
intended to “broaden the universe of acts that
App-56
enable Federal officers to remove to Federal
court.” H.R. Rep. No. 112-17, pt. 1 (2011), as
reprinted in 2011 U.S.C.C.A.N. 420, 425.
In re Commonwealth’s Motion to Appoint Counsel
Against or Directed to Defender Ass’n of Philadelphia,
790 F.3d 457, 471-72 (3d Cir. 2015) (second, seventh,
tenth and eleventh alterations in original). Similarly,
the Fourth Circuit Court of Appeals interpreted the
addition of “relating to” in § 1442(a)(1) to “broaden the
universe of acts that enable federal removal . . . such
that there need be only a connection or association
between the act in question and the federal office.”
Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 258 (4th
Cir. 2017) (quotations omitted). More recently, the
Fifth Circuit Court of Appeals addressed the second
element as follows, “[s]ubject to the other
requirements of section 1442(a), any civil action that
is connected or associated with an act under color of
federal office may be removed” and “to remove under
section 1442(a), a defendant must show . . . [that] the
charged conduct is connected or associated with an act
pursuant to a federal officer’s directions.” Latiolais,
951 F.3d at 296; see also Baker v. Atlantic Richfield
Co., 962 F.3d 937, 943-44 (7th Cir. 2020) (following the
3d Circuit, 4th Circuit and 5th Circuit in requiring a
connection or association for federal officer removal).
As to the third element, requiring a colorable
defense, the Eighth Circuit Court of Appeals has
stated that, “[f]or a defense to be colorable, it need only
be plausible; § 1442(a)(1) does not require a court to
hold that a defense will be successful before removal
is appropriate.” United States v. Todd, 245 F.3d 691,
693 (8th Cir. 2001). “[A]n asserted federal defense is
App-57
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.
Finally, the fourth element, requiring that the
defendant be a person, the term “person” includes
corporations. See Jacks, 701 F.3d at 1230 n.3 (“[T]he
‘person’ contemplated by the federal officer removal
statute includes corporations.”).
C. Application
1.
Federal Officer Removal
a.
Acted under the direction of a federal
officer
While Tyson emphasizes that President Trump’s
April 28, 2020 Executive Order and Secretary
Perdue’s May 5, 2020 Letter to Governors
demonstrate that Tyson was acting under a federal
officer, Tyson’s emphasis is misplaced. The primary
allegations in the Petition all took place prior to April
28, 2020 and May 5, 2020. Indeed, Sedika Buljic died
on April 18, 2020. Petition ¶ 3. Reberiano Garcia died
on April 23, 2020. Id. ¶ 6. While Jose Ayala, Jr. died
on May 25, 2020, he was hospitalized for COVID-19
and intubated on April 13, 2020 and remained
intubated and unresponsive until his death. Id. ¶ 9,
Affidavit Arturo De Jesus Henandez (docket no. 15-4).
Further, even though President Trump declared a
national emergency on March 13, 2020, the court is
unpersuaded that such a declaration constitutes
direction under a federal officer for purposes of
removal. Tyson contends that it “operated its
facilities—including the Waterloo facility—as critical
App-58
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.” Resistance at 15. Tyson
claims that it was “in constant contact with federal
officials at the Department of Homeland Security
[(“DHS”)] and the USDA regarding continued
operations[.]” Id. While Tyson may have been in
regular contact with DHS and 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 to assist, or to help carry out, the duties or
tasks of the federal superior.” Rhode Island, 979 F.3d
at 59; see also Mayor and City Council of Baltimore v.
BP P.L.C., 952 F.3d 452, 466 n.9 (4th Cir. 2020)
(noting that “[t]his is a complex case, and we do not
intend to suggest that Defendants were required to
outline the leases’ requirements in painstaking detail
in order to satisfy their burden of justifying federal
officer removal. But they must provide ‘candid,
specific and positive’ allegations that they were acting
under federal officers.”) (quotation omitted); Betzner,
910 F.3d at 1015 (finding that defendant was acting
under the United States Air Force in manufacturing a
heavy bomber aircraft “under the military’s detailed
and ongoing control”); Ruppel, 701 F.3d at 1181 (“CBS
worked hand-in-hand with the government, assisting
the federal government in building warships. ‘Acting
under’ covers situations, like this one, where the
federal government uses a private corporation to
App-59
achieve an end it would have otherwise used its own
agents to complete.”).
Based on the forgoing, the court finds that Tyson
has failed to demonstrate that it acted under the
direction of a federal officer. Therefore, removal under
the federal officer statute is improper.
b.
Causal connection
Even if Tyson acted under the direction of a
federal officer, which it did not, Tyson has failed to
demonstrate a causal connection between its actions
and the official authority. First, the primary directives
relied upon by Tyson, President Trump’s April 28,
2020 Executive Order and Secretary Perdue’s May 5,
2020 Letter to Governors, were issued after the
primary allegations in the Petition had taken place.
Second, Tyson incorrectly frames the tort
allegations in Plaintiffs’ Petition. Plaintiff’s Petition
does not seek damages in tort for Tyson’s failure to
shut down the Waterloo facility due to the coronavirus
pandemic; but instead, Plaintiffs seek damages in tort
against Tyson and its named executives and
supervisors for alleged fraudulent misrepresentations
and gross negligence with regard to the danger, risks
and handling of the coronavirus pandemic and
COVID-19 outbreak at the Waterloo facility. See
Petition ¶¶ 99-151. While the Plaintiffs’ twenty-nine
page Petition may contain four numbered paragraphs
out of 160 total paragraphs that suggest that
production should have been halted or slowed due to
the COVID-19 threat, overall, the allegations in the
Petition do not focus on the shutting down of the
facility and Plaintiffs’ allegations of negligence and
fraudulent misrepresentation are not directed at
App-60
Tyson’s decision not to shut down the facility. In fact,
even though Tyson claims that they were directed by
the President of the United States and the Secretary
of Agriculture to keep the Waterloo facility open for
purposes of keeping the national food supply chain
operating, Defendants did in fact shut down
operations at the Waterloo facility from April 22, 2020
to May 7, 2020 due to the coronavirus. Id. ¶¶ 84-85,
90. Further, Tyson also closed the Columbus Junction
facility due to a COVID-19 outbreak. Id. ¶ 62.
Third, even if Tyson kept the Waterloo facility
open and implemented coronavirus safety measures at
the direction of a federal officer, the alleged conduct in
Plaintiffs’ Petition is not connected or associated in
any manner with the directions of a federal officer. No
federal officer directed Tyson to keep its Waterloo
facility open in a negligent manner (failing to provide
employees with personal protective equipment, failing
to implement adequate social distancing measures,
failing to implement adequate safety measures related
to
the
coronavirus)
or
make
fraudulent
misrepresentations to employees at the Waterloo
facility regarding the risks or severity of the
coronavirus pandemic and COVID-19 outbreak at the
Waterloo facility.
Based on the forgoing, the court finds that Tyson
has failed to demonstrate a causal connection between
its actions and a federal authority. Therefore, removal
under the federal officer statute is improper.
c.
Colorable federal defense
Even if Tyson acted under the direction of a
federal officer, which it did not, and demonstrated a
causal connection between its actions and a federal
App-61
authority, which it also did not show, Tyson has failed
to demonstrate it has a colorable federal defense.
As already discussed above, Tyson’s reliance on
President Trump’s April 28, 2020 Executive Order and
the DPA are misplaced. President Trump’s April 28,
2020 Executive Order invoking the DPA was issued
after the primary allegations in the Petition had
occurred.
With regard to the FMIA, the Act “regulates the
inspection, handling, and slaughter of livestock for
human consumption.” Harris, 565 U.S. at 455. “The
FMIA regulates a broad range of activities at
slaughterhouses to ensure both safety of meat and
humane handling of animals.” Id. “The Department of
Agriculture’s Food Safety and Inspection Service
(FSIS) has responsibility for administering the FMIA
to promote its dual goals of safe meat and humane
slaughter.” Id. at 456. The FMIA’s preemption clause
“prevents a State from imposing any additional or
different—even if non-conflicting—requirements that
fall within the scope of the Act and concern
slaughterhouse’s facilities or operations.” Id. at 459-60
(emphasis added). The Supreme Court noted that
“state laws of general application (workplace safety
regulations, building codes, etc.) will usually apply to
slaughterhouses.” Id. at 467 n.10. While Tyson points
out federal regulations promulgated by FSIS
regarding infectious disease, see Resistance at 19-20,
it is difficult to see how these regulations relate to the
tort claims alleged in Plaintiffs’ Petition or the issues
raised by the coronavirus pandemic. Tyson has failed
to demonstrate that the allegations contained in
Plaintiffs’ Petition fall within the scope of the FMIA.
App-62
Further, it appears that Tyson’s reliance on the FMIA
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”) (quotations
omitted)).
Based on the forgoing, the court finds that Tyson
has failed to demonstrate that it has a colorable
federal defense to Plaintiffs’ claims. Therefore,
removal under the federal officer statute is improper.
d.
Summary
The court finds that Tyson has failed to
demonstrate: (1) that it acted under the direction of a
federal officer; (2) that there is a causal connection
between its actions and a federal authority; and
(3) that it has a colorable federal defense. Accordingly,
Tyson’s removal based on the federal officer statute is
improper.
2.
Removal Based on a Federal Question
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 and
fraudulent misrepresentation. See Markham, 861
F.3d at 754 (providing that “federal jurisdiction exists
only when a federal question is presented on the face
of the plaintiff’s properly pleaded complaint”) (quoting
Caterpillar Inc., 482 U.S. at 392). Furthermore,
Plaintiffs’
negligence
and
fraudulent
misrepresentation claims do not allege a cause of
action created by a federal statute. See Merrell Dow,
478 U.S. at 808 (providing that cases brought under
App-63
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 President
Trump’s invocation of the DPA on April 28, 2020 in the
Executive Order is misplaced because the April 28,
2020 Executive Order invoking the DPA was issued
after the primary allegations in the Petition had taken
place. Further, Plaintiffs’ generic passing references
in the Petition to federal rules, regulations and
guidance or brief mention of CDC guidelines or OSHA
standards does 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”). As Plaintiffs point out
in their brief, the brief refences to CDC guidelines and
OSHA standards in the Petition are for purposes of
measuring Defendants’ negligence and not claims for
relief under CDC guidance or OSHA regulations. See
Plaintiffs’ Brief at 11; see also Bender v. Jordan, 623
F.3d 1128, 1130 (D.C. Cir. 2010) (providing that “[f]or
federal courts to have jurisdiction, the state law claim
must turn on an ‘actually disputed and substantial’
issue of federal law”) (quoting Grable, 545 U.S. at 314).
Accordingly, the court concludes that the Petition
does not contain a federal question and, therefore, the
court lacks subject matter jurisdiction over the case.
3.
Attorney Fees and Costs
In the Motion, Plaintiffs seek attorney fees and
costs pursuant to 28 U.S.C. § 1447(c). See Motion at 1;
Plaintiffs’ Brief at 12. Section 1447(c) provides in
pertinent part that “[a]n order remanding the case
App-64
may require payment of just costs and any actual
expenses, including attorney fees, incurred as a result
of the removal.” Id. With regard to awarding attorney
fees, the Eighth Circuit Court of Appeals has held that
“the standard for awarding fees should turn on the
reasonableness of the removal. Absent unusual
circumstances, courts may award attorney’s fees
under § 1447(c) only where the removing party lacked
an objectively reasonable basis for seeking removal.
Conversely, when an objectively reasonable basis
exits, fees should be denied.” Convent Corp. v. City of
North Little Rock, Ark., 784 F.3d 479, 483 (8th Cir.
2015) (quoting Martin v. Franklin Capital Corp., 546
U.S. 132, 141 (2005)); see also Lussier v. Dollar Tree
Stores, Inc., 518 F.3d 1062, 1065 (9th Cir. 2008)
(providing that removal is not objectively
unreasonable “solely because the removing party’s
arguments lack merit, or else attorney’s fees would
always be awarded whenever remand is granted”).
Even though the court has determined that
removal based on federal question jurisdiction is not
permitted in this case, the court finds that Tyson did
not objectively act unreasonably given the complexity
and novel nature of this case. Accordingly, the court,
in its discretion, declines to award attorney fees and
costs pursuant to 28 U.S.C. § 1447(c).
V. CONCLUSION
In light of the foregoing, Plaintiffs’ Motion to
Remand (docket no. 15) is GRANTED. This case is
REMANDED to the Iowa District Court for Black
Hawk County. Further, all pending motions are
DENIED as moot. The Clerk of Court is DIRECTED
to CLOSE THIS CASE.
App-65
IT IS SO ORDERED.
DATED this 28th day of December, 2020.
[handwritten: signature]
LINDA R. READE, JUDGE
UNITED STATES DISTRICT
COURT
NORTHERN DISTRICT OF
IOWA
App-66
Appendix D
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF IOWA
________________
No. 20-cv-2079
________________
OSCAR FERNANDEZ, Individually and as
Administrator of the Estate of Isidro Fernandez,
v.
Plaintiff,
TYSON FOODS, INC., TYSON FRESH MEATS, INC.;
JOHN H. TYSON; NOEL W. WHITE; DEAN BANKS;
STEPHEN R. STOUFFER; TOM BROWER, TOM HART,
CODY BRUSTKERN, BRET TAPKEN, and JOHN CASEY,
Defendants.
________________
Filed: Dec. 28, 2020
________________
ORDER
________________
I.
INTRODUCTION
The matter before the court is Plaintiff Oscar
Fernandez’s Motion to Remand (“Motion”) (docket no.
22).
II. BACKGROUND OF THE CASE
A. General Procedural History
On August 5, 2020, Plaintiff filed a “Petition at
Law and Demand for Jury Trial” (“Petition”) (docket
no. 2) in the Iowa District Court for Black Hawk
App-67
County. On October 2, 2020, Defendants Tyson Foods,
Inc. and Tyson Fresh Meats, Inc. (collectively,
“Tyson”) filed a Notice of Removal (docket no. 1),
bringing the case before this court. 1 On November 2,
2020, Plaintiff filed the Motion. On November 10,
2020, a “brief of Amicus Curiae Public Citizen in
Support of Plaintiff’s Motion to Remand” (docket no.
28) was filed. On November 16, 2020, Tyson filed a
Resistance (docket no. 31).
On November 11, 2020, Plaintiff filed the First
Amended Complaint (docket no. 29), which among
other things, dismissed Defendants Mary A. Oleksiuk,
Elizabeth Croston, Hamdija Beganovic, James Hook,
Ramiz Muheljic, Missia Abad Bernal and John/Jane
1 It is “the settled rule that removal under 28 U.S.C. § 1442 can
be effected by any defendant in an action, with or without the
consent of co-defendants.” Alsup v. 3-Day Blinds, Inc., 435
F.Supp.2d 838, 842 (S.D. Ill. 2006); see also Akin v. Ashland
Chemical Co., 156 F.3d 1030, 1034 (10th Cir. 1998) (providing
that 28 U.S.C. § 1442(a)(1) provides a statutory exception that
“allows a federal officer [or any person acting under that officer]
independently to remove a case to federal court even though that
officer is only one of several named defendants”); Ely Valley
Mines, Inc. v. Hartford Acc. & Indem. Co., 644 F.2d 1310, 1315
(9th Cir. 1981) (finding that § 1442 “represents an exception to
the general rule . . . that all defendants must join in the removal
petiton”); Citrano v. John Crane-Houdaille, Inc., 1 F.Supp.3d
459, 465 (D. Md. 2014) (“Unlike removal under § 1441, under
§ 1442(a) the other defendants need not join in or consent for
removal to be proper.”). Here, Tyson is removing this case under
28 U.S.C. § 1442(a). See Notice of Removal at 1. Accordingly, this
action may be removed without consent from the other
Defendants. Additionally, as set forth in the Notice of Removal,
Defendants John Tyson, Noel White, Dean Banks, Stephen
Stouffer, Tom Brower and Tom Hart “confirm that they consent
to this case being removed.” See Notice of Removal at 16.
App-68
Does 1-10. Additionally, Defendants Cody Brustkern,
John Casey and Bret Tapken were added in the First
Amended Complaint.
B. Causes of Action Alleged in the Petition
Even though Plaintiff has filed a First Amended
Complaint in this case, for purposes of the Motion, the
court considers the complaint, or in this instance, the
Petition that existed at the time that the Notice of
Removal was filed. See Scarlott v. Nissan North
America, Inc., 771 F.3d 883, 888 n.2 (5th Cir. 2014)
(citing Boelens v. Redman Homes, Inc., 759 F.2d 504,
507 (5th Cir. 1985); see also Harper v. AutoAlliance
Intern., Inc., 392 F.3d 195, 210 (6th Cir. 2004) (“The
existence of subject matter jurisdiction is determined
by examining the complaint as it existed at the time of
removal”); United Farm Bureau Mut. Ins. Co., Inc. v.
Metropolitan Human Relations Commission, 24 F.3d
1008, 1014 (7th Cir. 1994) (“It is a fundamental
principle of law that whether subject matter
jurisdiction exists is a question answered by looking to
the complaint as it existed at the time the petition for
removal was filed”) (quotation omitted); Salton v.
Polyock, 764 F.Supp.2d 1033, 1035 (N.D. Iowa 2011)
(“[A] fundamental principle of removal jurisdiction is
that whether subject matter jurisdiction exists is a
question answered by looking to the complaint as it
existed at the time the petition for removal was filed”);
Virginia Gay Hospital, Inc. v. Amerigroup Iowa, Inc.,
No. C18-112-LTS, 2019 WL 5483827, at *2 (N.D. Iowa
Feb. 15, 2019) (same).
In the first cause of action in the Petition Plaintiff
alleges fraudulent misrepresentation and vicarious
liability and seeks punitive damages against Tyson.
App-69
See Petition ¶¶ 89-103. In the second cause of action,
Plaintiff alleges gross negligence and seeks punitive
damages against Defendants John H. Tyson, Noel W.
White, Dean Banks, Stephen R. Stouffer and Tom
Brower (collectively, “Executive Defendants”). See id.
¶¶ 104-119. In the third cause of action, Plaintiff
alleges
gross
negligence
and
fraudulent
misrepresentation and seeks punitive damages
against Defendants Tom Hart, Bret Tapken, Cody
Brustkern and John Casey (collectively, “Supervisory
Defendants”). 2 Id. ¶¶ 120-141.
Specifically, Plaintiff alleges that Tyson “made
numerous false representations” to Plaintiff’s
decedent at the Waterloo facility and “falsely
represented” that: (1) COVID-19 had not been
detected at the facility; (2) COVID-19 was not
spreading through the facility; (3) worker absenteeism
was not related to COVID-19; (4) sick workers were
not permitted to enter the facility; (5) workers from
other Tyson facilities that were shut down due to
COVID-19 outbreaks were not permitted to enter the
Waterloo facility; (6) sick or symptomatic workers
would be sent home immediately and would not be
permitted to return until cleared by health officials;
(7) workers would be notified if they had been in close
contact with an infected co-worker; (8) the workers’
health and safety was a top priority for Tyson;
2 The Defendants listed as Supervisory Defendants corresponds
to the named Defendants in the First Amended Complaint.
Additionally, the fourth cause of action in the Petition is no
longer viable as the claims are against Elizabeth Croston, whom
Plaintiff voluntarily dismissed from this action. See Petition
¶¶ 142-150; First Amended Complaint.
App-70
(9) safety measures implemented at the Waterloo
facility would prevent or mitigate the spread of
COVID-19 and protect workers from infection; (10) the
Waterloo facility needed to stay open in order to avoid
meat shortages in the United States; and (11) the
Waterloo facility was a safe work environment. Id.
¶¶ 90-91(a)-(k). Plaintiff alleges that Tyson knew that
such representations were false and material. Id.
¶¶ 92-93. Further, Plaintiff alleges that Tyson made
the false representations to induce Plaintiff’s decedent
to continue working despite the uncontrolled COVID19 outbreak in the Waterloo facility. Id. ¶ 94. Plaintiff
alleges that Plaintiff’s decedent “accepted and relied”
on Tyson’s representations and Plaintiff’s decedent
was induced to continue working at the Waterloo
facility. Id. ¶¶ 95-96. Plaintiff also alleges that Tyson
is “vicariously liable for the culpable acts and
omissions committed by all of its agents acting within
the course and scope of their agency,” including the
Executive Defendants and Supervisory Defendants.
Id. ¶ 98.
Plaintiff alleges that the Executive Defendants
“had a duty to exercise reasonable care to prevent
injuries to [Plaintiff’s decedent]” and breached their
duty by the following acts and omissions: (1) failing to
develop or implement worksite assessments to
identify COVID-19 risks and prevention strategies for
the Waterloo facility; (2) failing to develop or
implement testing and workplace contact tracing of
COVID-19 positive workers at the Waterloo facility;
(3) failing to develop and implement a comprehensive
screening and monitoring strategy aimed at
preventing the introduction of COVID-19 into the
worksite, including: a program to effectively screen
App-71
workers before entry into the workplace; return to
work criteria for workers infected with or exposed to
COVID-19 and criteria for exclusion of sick or
symptomatic workers; (4) allowing or encouraging sick
or symptomatic workers to enter or remain in the
workplace; (5) failing to promptly isolate and send sick
or symptomatic workers home; (6) failing to configure
communal work environments so that workers were
spaced at least six feet apart; (7) failing to modify the
alignment of workstations, including those along
processing lines, so that workers did not face each
other; (8) failing to install physical barriers to
separate or shield workers from each other; (9) failing
to develop, implement or enforce appropriate cleaning,
sanitation and disinfection practices to reduce
exposure or shield workers from COVID-19 at the
Waterloo facility; (10) failing to provide workers with
appropriate personal protective equipment, including
face coverings; (11) failing to require employees to
wear face coverings; (12) failing to provide adequate
hand washing or hand sanitizing stations throughout
the Waterloo facility; (13) failing to slow production in
order to operate with a reduced work force; (14) failing
to develop, implement or enforce engineering or
administrative controls to promote social distancing;
(15) failing to modify, develop, implement, promote
and educate workers, including workers with limited
English language abilities, regarding revised sick
leave, attendance or incentive policies to ensure that
sick or symptomatic workers stay home; (16) failing to
ensure that workers, including workers with limited
English language abilities, were aware of, or
understood modified sick leave, attendance or
incentive policies; (17) failing to ensure adequate
App-72
ventilation in work areas to minimize workers’
potential exposure to COVID-19 and failing to
minimize air flow from fans blowing from one worker
directly onto another worker; (18) failing to establish,
implement, promote and enforce a system for workers,
including those with limited English language
abilities, to alert supervisors if they were experiencing
signs or symptoms of COVID-19 or if they had recent
contact with a suspected confirmed COVID-19 case;
(19) failing to inform workers, including those with
limited English language abilities, who had contact
with a suspected or confirmed COVID-19 case;
(20) failing to educate and train workers and
supervisors, including workers with limited English
language abilities, on how to reduce the spread of
COVID-19 and prevent exposure to COVID-19;
(21) failing to encourage or require workers to stay
home when sick; (22) failing to inform or warn workers
that individuals suspected or known to have been
exposed to COVID-19 at other Tyson facilities,
including the Columbus Junction facility, were
permitted to enter the Waterloo facility without
adequately quarantining or testing negative for
COVID-19 prior to entry; (23) operating the Waterloo
facility in a manner that resulted in more than 1,000
infected workers and five deaths; (24) making false
and fraudulent misrepresentations on behalf of Tyson;
(25) failing to provide and maintain a safe work
environment; (26) failing to take reasonable
precautions to protect workers from foreseeable
dangers; (27) failing to abide by state and federal
regulations and guidance; (28) failing to abide by
appropriate OSHA standards and guidance; and
(29) failing to exercise reasonable care. Id. ¶¶ 108-
App-73
109(a)-(cc). Based on the foregoing, Plaintiff alleges
that the Executive Defendants’ “acts and omissions
were grossly negligent, reckless, intentional, and
constituted willful and wanton disregard for the safety
of workers.” Id. ¶ 110. Plaintiff alleges that “[t]he
Executive Defendants knew of the danger to be
apprehended” and “knew or should have known that
their conduct was probable to cause employees to
become seriously ill or die.” Id. ¶¶ 112-113.
Plaintiff alleges that the Supervisory Defendants
“had a duty to exercise reasonable care to prevent
injuries to [Plaintiff’s decedent]” and breached their
duty through acts and omissions identical to the acts
and omissions alleged against the Executive
Defendants. Id. ¶¶ 124-125(a)-(cc); compare id.
¶ 109(a)-(cc) with id. ¶ 125(a)-(cc). Plaintiff alleges
that the Supervisory Defendants’ “acts and omissions
were grossly negligent, reckless, intentional, and
constituted willful and wanton disregard for the safety
of workers.” Id. ¶ 126. Plaintiff alleges that the
Supervisory Defendants “consciously failed to avoid
the danger,” even though they “recognized the danger
of a COVID-19 outbreak at the facility and failed to
take sufficient precautions to avoid an outbreak.” Id.
¶ 130. Plaintiff also alleges that:
The
Supervisory
Defendants
made
fraudulent
misrepresentations
to
the
Waterloo workforce. They made false
statements concerning the presence and
spread of COVID-19 at the Waterloo [f]acility,
the importance of protecting and keeping
employees safe, the breadth and efficacy of
safety measures implemented at the facility,
App-74
and the importance of keeping the facility
open. The Supervisory Defendants knew
these representations were false; they knew
or should have known it was wrong to make
such false representations, and they intended
to deceive and induce Waterloo employees,
including [Plaintiff’s decedent] to continue
working despite the danger of COVID-19.
Id. ¶ 132. Specifically, Plaintiff alleges that the
Supervisory Defendants “falsely represented” to
Plaintiff’s decedent that: (1) COVID-19 had not been
detected at the facility; (2) COVID-19 was not
spreading through the facility; (3) worker absenteeism
was not related to COVID-19; (4) sick workers were
not permitted to enter the facility; (5) workers from
other Tyson facilities that had shut down due to
COVID-19 outbreaks were not permitted to enter the
Waterloo facility; (6) sick or symptomatic workers
would be sent home immediately and would not be
permitted to return until cleared by health officials;
(7) workers would be notified if they had been in close
contact with an infected co-worker; (8) the workers’
health and safety was a top priority for Tyson;
(9) safety measures implemented at the Waterloo
facility would prevent the spread of COVID-19 and
protect the workers from infection; (10) the Waterloo
facility needed to stay open in order to avoid meat
shortages in the United States; and (11) the Waterloo
facility was a safe work environment. Id. ¶ 133(a)-(k).
Further, Plaintiff alleges that the Supervisory
Defendants knew that such representations were false
and material. Id. ¶¶ 134-135. Plaintiff alleges that the
Supervisory
Defendants
made
the
false
representations to induce Plaintiff’s decedent to
App-75
continue working despite the uncontrolled COVID-19
outbreak in the Waterloo facility, Plaintiff’s decedent
“accepted and relied” on the Supervisory Defendants’
representations and Plaintiff’s decedent was induced
to continue working at the Waterloo facility. Id.
¶¶ 136-138.
Tyson requests oral argument. The court finds
that oral argument is unnecessary. Therefore, Tyson’s
request is denied. The matter is fully submitted and
ready for decision.
C. Factual Allegations in the Petition
On March 13, 2020, President Donald Trump
declared a national emergency due to the coronavirus
pandemic. Id. ¶ 43. Also, on or about March 13, 2020,
Tyson “suspended all [United States] commercial
business travel, [forbade] all non-essential visitors
from entering Tyson offices and facilities, and
mandated that all non-critical employees at its
[United States] corporate office locations work
remotely.” Id. ¶ 44. On March 17, 2020, Governor Kim
Reynolds declared a public health disaster emergency
for the State of Iowa due to the coronavirus pandemic.
Id. ¶ 45.
Tyson’s facility in Waterloo, Iowa, is its “largest
pork plant in the United States.” Id. ¶ 48. The facility
employs approximately 2,800 workers and processes
approximately 19,500 hogs per day. Id. By late-March
or early April, the Executive Defendants, Supervisory
Defendants and other Tyson managers were aware
that COVID-19 was spreading throughout the
Waterloo facility. Id. ¶ 50. On April 3, 2020, the CDC
recommended that all Americans wear face coverings
in public to prevent the spread of COVID-19. Id. ¶ 51.
App-76
Tyson did not provide its workers at the Waterloo
facility with sufficient face coverings or other personal
protective equipment. Id. ¶ 52. Tyson also “did not
implement or enforce sufficient social distancing
measures at the Waterloo [f]acility.” Id. ¶ 53.
On or about April 6, 2020, after more than two
dozen employees tested positive for COVID-19, Tyson
temporarily suspended operations at the Columbus
Junction, Iowa, facility. Id. ¶ 54. Also, on or about
April 6, 2020, Tyson installed temperature-check
stations at the entrances to the Waterloo facility. Id.
¶ 55.
On April 10, 2020, Black Hawk County Sheriff
Tony Thompson and Black Hawk County health
officials visited Tyson’s Waterloo facility. Id. ¶ 56.
According to Sheriff Thompson, working conditions at
the Waterloo facility were poor, with workers
“crowded elbow to elbow” and “most without face
coverings.” Id. ¶ 57. “Sheriff Thompson and other local
officials lobbied Tyson to close the plant, but [Tyson]
refused.” Id. ¶ 58. On April 12, 2020, approximately
two-dozen Tyson employees were seen at the
emergency department at MercyOne Waterloo
Medical Center. Id. ¶ 59.
On April 14, 2020, Black Hawk County officials
asked Tyson to temporarily shut down the Waterloo
facility. Id. ¶ 60. Tyson did not shut the facility down.
Id. On April 16, 2020, Tyson publicly denied a COVID19 outbreak at the Waterloo facility. Id. ¶ 61. On or
about April 17, 2020, “twenty local elected officials
sent a letter to Tyson . . . imploring the company to
take steps ‘to ensure the safety and well-being of
Tyson’s valuable employees and our community’ and
App-77
to ‘voluntarily cease operations on a temporary basis
at [the] Waterloo [f]acility so that appropriate
cleaning and mitigation strategies [could] take place.’”
Id. ¶ 62 (first alteration in original). Further, the
letter stated that “at least one Tyson employee had
informed Waterloo health care providers that he or
she had transferred to the Waterloo [f]acility from
Tyson’s Columbus Junction plant, which had closed
due to a COVID-19 outbreak” and “workers did not
have sufficient personal protective equipment; social
distancing measures were not being implemented or
enforced on the plant floor or in employee locker
rooms; nurses at the Waterloo [f]acility lacked
sufficient medical supplies and were unable to
accurately conduct temperature checks; and because
of language barriers, non-English speaking employees
mistakenly believed they could return to work while
sick.” Id.
After the Columbus Junction facility was shut
down due to a COVID-19 outbreak, Tyson transferred
workers from Columbus Junction to the Waterloo
facility. Id. ¶ 64. “Tyson failed to test or adequately
quarantine workers from the Columbus Junction
[facility] before allowing them to enter the Waterloo
[f]acility.” Id. ¶ 65. Also, Tyson allowed subcontractors
from facilities that had shut down due to COVID-19
outbreaks to enter the Waterloo facility. Id. ¶ 66.
“Tyson did not test or adequately quarantine these
subcontractors before allowing them to enter and
move about the Waterloo [f]acility.” Id. ¶ 67. Tyson
“permitted or encouraged sick and symptomatic
employees and asymptomatic employees known or
suspected to have been exposed to COVID-19 to
continue working at the Waterloo [f]acility.” Id. ¶ 68.
App-78
“At least one worker at the facility vomited on the
production line and management allowed him to
continue working and return to work the next day.” Id.
Supervisors and managers at the Waterloo facility
told employees that their co-workers were sick with
the flu, not COVID-19, and told them not to discuss
COVID-19 at work. Id. ¶ 70.
“[H]igh-level Tyson executives began lobbying the
White House for COVID-19 related liability
protections as early as March and continued their
lobbying efforts throughout April.” Id. ¶ 71. Tyson
executives also lobbied members of Congress for
COVID-19-related liability protections. Id. ¶ 72.
Further, Tyson executives lobbied Governor Reynolds
for COVID-19-related liability protections. Id. ¶ 73.
On April 20, 2020, Tyson began shutting down
operations at its Waterloo facility due to the lack of a
healthy labor force, but the facility did not shut down
until April 22, 2020, after it had processed the
remaining hogs in its cooler. Id. ¶ 76. On April 22,
2020, Tyson indefinitely suspended operations at the
Waterloo facility. Id. ¶ 77. On April 28, 2020,
President Trump “signed an executive order
classifying meat processing plants as essential
infrastructure that must remain open,” in order “to
avoid risk to the nation’s food supply.” Id. ¶ 81.
The Black Hawk County Health Department
recorded more than 1,000 COVID-19 infections among
Tyson employees, which is more than one-third of the
Waterloo facility workforce. Id. ¶ 83. Five workers
from the Waterloo facility died. Id. On April 26, 2020,
Isidro Fernandez died from complications due to
COVID-19. Id. ¶ 3.
App-79
III. NOTICE OF REMOVAL
In the Notice of Removal, Tyson asserts that this
court has subject matter jurisdiction because
Plaintiff’s Petition “challenges actions taken by Tyson
at the direction of a federal officer.” Notice of Removal
at 1. Tyson reads Plaintiff’s Petition to argue that, “in
effect . . . Tyson should have shut down its facility in
Waterloo, Iowa during the COVID-19 pandemic or
operated it differently.” Id. at 2. Tyson maintains,
however, that the Waterloo facility “was operating as
part of the federally designated ‘critical infrastructure’
at the direction of, and under the supervision of, the
U.S. Department of Homeland Security and the U.S.
Department of Agriculture.” Id. Further, Tyson
asserts that “[t]he President and the Secretary of
Agriculture provided detailed instruction for meatprocessing facilities to continue operating[.]” Id. at 3.
Tyson emphasizes an Executive Order, dated April 28,
2020, which states that “‘[i]t is important that
processors of beef, pork, and poultry . . . in the food
supply chain continue operating and fulfilling orders
to ensure a continued supply of protein for Americans’
and . . . that any ‘closures [of such facilities] threaten
the continued functioning of the national meat and
poultry supply chain’ and ‘undermin[e] critical
infrastructure during the national emergency.’” Id.
(alterations in original) (quoting Executive Order on
Delegating Authority under the DPA with respect to
Food Supply Chain Resources during the National
Emergency caused by the Outbreak of COVID-19, 2020
WL 2060381, at *1 (Apr. 28, 2020)). Tyson maintains
that, “[b]ecause [it] “continued to operate the Waterloo
facility following federal critical infrastructure
directions and supervision from federal officers,
App-80
including directives from the President and Secretary
of Agriculture and guidance from the CDC and OSHA,
federal court is the proper forum for resolving this
case.” Id.
More specifically, Tyson offers the following
timeline in support of its position that it was acting
under the direction of a federal officer:
On March 13, 2020, the President declared “a
National Emergency in response to the
COVID-19 outbreak. . . .” Soon after, on
March 16, [2020] the President issued
“Coronavirus Guidelines” emphasizing that
employees
in
“critical
infrastructure
industry[ies]”—including companies like
Tyson that are essential to maintaining foodsupply chains and ensuring the continued
health and safety of all Americans—have a
‘special responsibility’ and ‘should follow
CDC guidance to protect [employees’] health
at work.’” Exec. Office of Pres., The
President’s Coronavirus Guidelines for
America at 2 (Mar. 16, 2020).
Id. at 4 (second and third alteration in original). Tyson
maintains that, “from the time of President Trump’s
disaster declaration on March 13[, 2020], Tyson was
in close contact with federal officials regarding
continued operations as critical infrastructure.” Id. at
5.
Tyson emphasizes that, on April 28, 2020,
President Trump issued an executive order that
“expressly invoked his authority under the Defense
Production Act (“DPA”) and again directed that it was
federal policy that meat and poultry processing
App-81
companies continue operating subject to the
supervision of the Secretary of Agriculture.” Id. at 67. Further, Tyson notes that, on May 5, 2020,
Secretary of Agriculture Sonny Perdue issued a letter
to meat and poultry processing companies “directing
them to continue operating pursuant to federal
directives[.]” Id. at 7. Additionally, Tyson asserts that,
on May 18, 2020, the United States Department of
Agriculture (“USDA”) and United States Food and
Drug Administration (“FDA”) entered into a
memorandum of understanding explaining each
Department’s role in utilizing the DPA to regulate
food producers during the COVID-19 outbreak. Id. at
8. Tyson points out that the memorandum stated that
the USDA “retained exclusive delegated authority
under the DPA to issue orders regarding domestic food
producers.” Id. (quotation omitted). Tyson maintains
that its actions to keep operating the Waterloo facility
stem from “the authority, orders, detailed regulation,
and supervision of the President and U.S.
Departments of Homeland Security and Agriculture”
and, therefore, it was “‘acting under’ federal officers”
and is “entitled to have this case heard in federal
court.” Id. at 10.
Further, in the Notice of Removal, Tyson asserts
that “there is a direct connection between the
Petition’s allegations and the actions [it] took at the
direction of federal officers.” Id. Tyson frames
Plaintiff’s Petition as containing allegations of
liability “in tort for not shutting down the Waterloo
facility.” Id. Tyson also argues that the Petition
“challenges specific measures that [it] adopted or
allegedly failed to adopt in response to the
coronavirus” but maintains that “the measures that
App-82
[it] took were at the direction of federal officers” and
any such disputes are for a federal court to answer, not
a state court. Id.
Additionally, in the Notice of Removal, Tyson
asserts, that it has colorable federal defenses under
the FMIA, the DPA and President Trump’s April 28,
2020 Executive Order. See id. at 11-12.
Finally, in the Notice of Removal, Tyson contends
that removal is appropriate because the court has
federal question jurisdiction. Id. at 9. Specifically,
Tyson asserts that Plaintiff’s Petition necessarily
raises substantial federal issues making federal
jurisdiction appropriate. See generally id. at 12-15.
IV. MOTION TO REMAND
A. Parties’ Arguments
Plaintiff argues that “[f]ederal officer removal is
improper because the Notice of [Removal] does not
identify any federal directive that existed at the time
[Isidro] Fernandez was working for Tyson, failed to
establish causation between a directive and the
company’s tortious conduct, and failed to raise a
colorable federal defense.” Plaintiff’s Brief in Support
of Motion to Remand (“Plaintiff’s Brief”) (docket no.
22-1) at 3. Plaintiff’s reading of Tyson’s Notice of
Removal is that Tyson primarily relies on President
Trump’s April 28, 2020 Executive Order, instructing
meat processing plants to remain open, to support its
theory for federal officer removal. See id. at 4. Plaintiff
asserts that such reliance is “insufficient for federal
officer removal.” Id.
Specifically, Plaintiff argues that he “did not sue
Tyson for actions taken after [Isidro] Fernandez died
App-83
on April 26[, 2020],” and, therefore, it is “irrelevant
whether or not the company was acting under a
federal officer as of April 28[, 2020].” Id. Plaintiff also
argues that “Tyson’s vague assertion that it ‘was in
close contact with federal officials regarding continued
operations as critical infrastructure’—without
explaining what this means or how it relates to [Isidro]
Fernandez’s claims—is an insufficient basis for
federal officer jurisdiction.” Id. at 5 (citing Bd. of Cty.
Commissioners of Boulder Cty. v. Suncor Energy
(U.S.A.), Inc., 965 F.3d 792, 819 (10th Cir. 2020);
Mayor & City Council of Baltimore v. B.L. PLC, 952
F.3d 452, 466 n.9 (4th Cir. 2020)). Further, Plaintiff
asserts that “[c]ritical infrastructure or not, the
[g]overnment did not order Tyson to make fraudulent
representations to its employees, prevent the company
from providing employees with personal protective
equipment, prohibit the company from implementing
and enforcing social distancing measures, or forbid the
company from implementing basic safety measures to
protect its employees.” Id. at 5-6. Plaintiff maintains
that “federal officer removal is improper because
Tyson was not ‘acting under’ a federal officer when it
needlessly and knowingly exposed [Isidro] Fernandez
to COVID-19.” Id. at 6.
Further, Plaintiff asserts that contrary to Tyson’s
reading of the Petition, Plaintiff “did not sue
Tyson . . . for failing to shut down the [Waterloo
f]acility”; instead, Plaintiff “sued Tyson and its agents
for fraudulent
misrepresentation and gross
negligence.” Id. Specifically, Plaintiff argues that, in
the Petition, he “contends that Tyson’s executives and
managers violated their duty through twenty-nine
acts and omissions, none of which include failing to
App-84
shut down the facility.” Id. at 7. Plaintiff concludes
that “the only action that Tyson claims to have taken
at the direction of a federal officer (keeping the facility
open) does not serve as a basis for Plaintiff’s claims,”
and, therefore, “Tyson has failed to demonstrate that
the acts for which it was sued occurred because of
what it was asked to do by the [g]overnment.” Id.
Plaintiff also argues that “Tyson does not have a
colorable federal defense.” Id. Plaintiff maintains that
neither express preemption under the Federal Meat
Inspection Act (“FMIA”), nor ordinary preemption
under President Trump’s April 28, 2020 Executive
Order constitute a colorable federal defense. See id.
Specifically, Plaintiff argues that “Tyson’s assertion
that FMIA preempts [his] common law fraudulent
misrepresentation and personal injury claims is
entirely implausible, wholly insubstantial, absurdly
frivolous—and plainly made for the sole purpose of
obtaining federal jurisdiction.” Id. at 8 (relying on
Arbaugh v. Y&H Corp., 546 U.S. 513 n.10 (2006);
Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 297
(5th Cir. 2020)). Plaintiff maintains that FMIA
“preempts [s]tates from regulating the inspection,
handling, and slaughter of livestock for human
consumption” but FMIA “does not preempt [s]tates
from regulating other matters.” Id. (quotation and
citation omitted). Plaintiff concludes that, “[b]ecause
this lawsuit does not seek to regulate Tyson’s
inspection, handling or slaughter of livestock,
Plaintiff’s common law tort claims are not preempted
by the FMIA.” Id. Finally, Plaintiff argues that
preemption under President Trump’s April 28, 2020
Executive Order and the DPA are not “colorable
defense[s] because [Isidro] Fernandez contracted
App-85
COVID-19, stopped working and died before President
Trump invoked the DPA.” Id. at 9. Plaintiff maintains
that “[t]he Executive Order and DPA are wholly
irrelevant to Plaintiff’s claims” and “Tyson has not
raised a colorable federal defense.” Id.
Lastly, Plaintiff argues that “[r]emoval is not
warranted on the basis of federal question
jurisdiction.” Id. at 9. Plaintiff maintains that the
“causes of action are made entirely in terms of state
law—specifically, for Iowa common law negligence
and fraudulent misrepresentation” and these
“common law tort claims do not create a substantial
question of federal law[,]” making “removal based on
federal question jurisdiction improper.” Id. Further,
Plaintiff argues that “Tyson’s attempt to transform
this action into one arising under federal law violates
the well-pleaded complaint rule.” Id. Plaintiff also
argues that, “[b]ecause [Isidro Fernandez] contracted
COVID-19 and stopped working weeks before
President Trump invoked the DPA, Plaintiff’s claims
do not depend, in any way, on the interpretation or
application of the DPA. It follows, therefore, that
federal question jurisdiction does not exist.” Id. at 10.
Plaintiff asserts that “reference to federal guidance
and regulations does not confer federal question
jurisdiction.” Id. Plaintiff maintains that “[m]erely
referencing federal regulations within the context of
state law negligence claims does not confer federal
question jurisdiction.” Id. at 11. Plaintiff states that
he “referenced CDC guidance and OSHA regulations
merely as standards upon which to measure
Defendants’ negligence. Plaintiff[] do[es] not claim
relief under CDC guidance or OSHA regulations, but
solely under Iowa tort law.” Id.
App-86
In response, Tyson argues that “[t]his [c]ourt has
jurisdiction under the federal officer removal statute.”
Resistance at 14. Tyson asserts that, “[f]or removal to
be proper, [it] need only show that it is ‘plausible’ that
it was acting under the direction of federal officers[.]”
Id. at 15 (citing Betzner v. Boeing Co., 910 F.3d 1010,
1013-14 (7th Cir. 2018)). 3 Tyson maintains that it “was
acting at the direction of federal officers in a time of
emergency to provide the food security that the
government desired.” Id. at 16. Further, Tyson asserts
that “federal officers designated Tyson and its
employees as ‘critical infrastructure,’ and the whole
point of that designation is to continue operations
during an emergency, working with the Department
of Homeland Security and USDA, the designated
leader with respect to the Food and Agricultural
Sector of ‘critical infrastructure.’” Id.
Next, Tyson argues that “[t]here is sufficient
causal nexus between Tyson’s actions and federal
directions.” Id. at 18. Tyson notes that the federal
officer removal statute was amended in 2011 and, as
amended, the statute “no longer imposes a ‘direct
Tyson overreaches with its citation to Betzner for the
proposition that it “need only show that it is ‘plausible’ that it
was acting under the direction of federal officers.” Initially, the
court notes that the citation to pages 1013-14 in Betzner is
incorrect for Tyson’s proposition. Significantly, however, in
Betzner, the Seventh Circuit Court of Appeals did not hold that a
defendant “need only show that it is plausible that the defendant
was acting under the direction of federal officers”; instead, the
Seventh Circuit found that “Boeing plausibly alleged that it acted
under federal officers when it contracted to manufacture heavy
bomber aircraft for the United States Air Force, and that it acted
under the military’s detailed and ongoing control.” 910 F.3d at
1015.
3
App-87
causal nexus’ requirement” because Congress
“‘broadened federal officer removal to actions, not just
causally connected, but alternatively connected or
associated, with acts under color of federal office.’” Id.
(quoting Latiolais, 951 F.3d at 292). Tyson asserts
that it “must demonstrate only that Plaintiff’s claims
are connected or associated with an act under color of
federal office.” Id. (quotation omitted). Tyson argues
that:
Plaintiff’s claims easily satisfy the “minimal
‘causal connection’” required by Section
1442(a). . . . Since Plaintiff incorrectly argues
that Tyson was not following federal
directions before [President Trump’s April 28,
2020 Executive Order was issued], his claims
are obviously connected to the federal
direction to (a) continue operations and (b) do
so in compliance with CDC and OSHA
guidelines. . . . Tyson’s operation[s] under
federal direction is therefore directly related
to Plaintiff’s claim of workplace injury.
Id. at 19.
Tyson also argues that it “has colorable federal
defenses.” Id. Tyson maintains that the FMIA
preempts Plaintiff’s claims. Id. (citing 21 U.S.C.
§ 678). Tyson maintains that § 678 “‘sweeps widely’
and ‘prevents a State from imposing any additional or
different—even if non-conflicting—requirements that
fall within the scope of the Act and concern a
slaughterhouse’s facilities or operations.” Id. at 19-20
(quoting Nat’l Meat Ass’n v. Harris, 565 U.S. 452, 45960 (2012)). Specifically, Tyson argues that “the alleged
failings Plaintiff pleads are ‘in addition to, or different
App-88
than,’ the requirements that FSIS [(“Food Safety and
Inspection Service”)] has imposed regarding employee
hygiene and infectious disease—and therefore are
preempted under the express terms of 21 U.S.C.
§ 678.” Id. at 21. Tyson asserts that “[p]reemption
applies wherever Plaintiff seeks to impose, as a matter
of state law, different requirements for meatprocessing employees than those adopted by the
Department of Agriculture.” Id.
Tyson also argues that, “[a]t federal direction,
Tyson was (and is) required to continue operating its
meat and poultry processing facilities—including the
Waterloo facility—consistent with the CDC’s and
OSHA’s guidance.” Id. at 22. Tyson maintains that
“[t]hose directives preempt any attempt by the states
to strike a different policy balance between securing
the national food supply and stemming the spread of
COVID-19.” Id.
Finally, Tyson argues that “[t]he [c]ourt has
federal question jurisdiction because Plaintiff’s claims
necessarily raise substantial and disputed issues of
federal law.” Id. at 23 (citing Grable & Sons Metal
Prod., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314
(2005)). Tyson asserts that “[m]ultiple federal issues
are plainly raised by the Petition . . . and they
permeate every aspect of Plaintiff’s claims.” Id. at 24.
Tyson also argues that Plaintiff ignores that it was
federally designated as “critical infrastructure” and
received directions “to continue operating” and “how
Tyson followed those federal directions is an issue of
federal law for a federal court.” Id.
App-89
B. Applicable Law
1.
Federal Jurisdiction
“‘Federal courts are courts of limited jurisdiction,’
possessing ‘only that power authorized by
Constitution and statute.’” Eckerberg v. Inter-State
Studio & Publ’g Co., 860 F.3d 1079, 1084 (8th Cir.
2017) (quoting Gunn v. Minton, 568 U.S. 251, 256
(2013)). “The requirement that jurisdiction be
established as a threshold matter ‘spring[s] from the
nature and limits of the judicial power of the United
States’ and is ‘inflexible and without exception.’” Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95
(1998) (alteration in original) (quoting Mansfield, C. &
L. M. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884)).
2.
Removal to Federal Court
“A defendant may remove a state law claim to
federal court when the federal court would have had
original jurisdiction if the suit originally had been
filed there.” Phipps v. F.D.I.C., 417 F.3d 1006, 1010
(8th Cir. 2005). Original subject matter jurisdiction
can be established in two ways: (1) by alleging a claim
arising under federal law, see 28 U.S.C. § 1331 (“The
district courts shall have original jurisdiction of all
civil actions arising under the Constitution, laws, or
treaties of the United States”), or (2) by alleging
diversity of citizenship between the parties, see 28
U.S.C. § 1332(a)(1) and (a)(2) (“The district courts
shall have original jurisdiction of all civil actions
where the matter in controversy exceeds the sum or
value of $75,000 . . . and is between . . . (1) citizens of
different States; [or] (2) citizens of a State and citizens
or subjects of a foreign state. . . .”).
App-90
Generally, removal based on federal question
jurisdiction is based on the “well-pleaded complaint”
rule. Phipps, 417 F.3d at 1010. The “well-pleaded
complaint” rule provides that “federal jurisdiction
exists only when a federal question is presented on the
face of the plaintiff’s properly pleaded complaint.”
Markham v. Wertin, 861 F.3d 748, 754 (8th Cir. 2017)
(quoting Caterpillar Inc. v. Williams, 482 U.S. 386,
392 (1987)). “The rule also ‘makes plaintiff the master
of the claim,’ allowing the plaintiff to ‘avoid federal
jurisdiction by exclusive reliance on state law.’”
Phipps, 417 F.3d at 1010 (quoting Caterpillar Inc., 482
U.S. at 392).
“[T]he vast majority of cases brought under the
general federal question jurisdiction of the federal
courts are those in which federal law creates the cause
of action.” Merrell Dow Pharm. Inc. v. Thompson, 478
U.S. 804, 808 (1986). A federal question is also raised
when “the plaintiff’s right to relief necessarily depends
on resolution of a substantial question of federal law.”
Peters v. Union Pac. R.R. Co., 80 F.3d 257, 260 (8th
Cir. 1996) (quoting Franchise Tax Bd. v. Constr.
Laborers Vacation Tr., 463 U.S. 1, 28 (1983)).
However, “the mere presence of a federal issue in a
state cause of action does not automatically confer
federal-question jurisdiction.” Merrell Dow, 478 U.S.
at 813. “[A] complaint alleging a violation of a federal
statute as an element of a state cause of action, when
Congress has determined that there should be no
private, federal cause of action for the violation, does
not state a claim ‘arising under the Constitution, laws,
or treaties of the United States.’” Id. at 817 (quoting
28 U.S.C. § 1331).
App-91
The party seeking removal bears the burden of
establishing federal subject matter jurisdiction. See
Cent. Iowa Power Coop v. Midwest Indep.
Transmission Sys. Operator, Inc., 561 F.3d 904, 912
(8th Cir. 2009). Additionally, the court is required to
resolve all doubts about whether it has jurisdiction in
favor of remand. See Baker v. Martin Marietta
Materials, Inc., 745 F.3d 919, 923 (8th Cir. 2014).
3.
Removal
Statute
Based
on
Federal
Officer
28 U.S.C § 1442(a)(1) provides in pertinent part
that:
A civil action . . . that is commenced in 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 or 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 any agency thereof, in an
official or individual capacity, for or
relating to any act under color of such
office[.] . . .
Id. Removal under § 1441(a)(1) requires four
elements: “(1) a defendant has acted under the
direction of a federal officer, (2) there was a causal
connection between the defendant’s actions and the
official authority, (3) the defendant has a colorable
federal defense to the plaintiff’s claims, and (4) the
defendant is a ‘person,’ within the meaning of the
statute.” Jacks v. Meridian Resource Co., LLC, 701
App-92
F.3d 1224, 1230 (8th Cir. 2012). In a federal officer
removal action, as in other removal actions, “[t]he
party seeking removal bears the burden of proving the
grounds for its motion.” Ruppel v. CBS Corp., 701 F.3d
1176, 1180 (7th Cir. 2012); see also Betzner v. Boeing
Company, 910 F.3d 1010, 1014 (7th Cir. 2018)
(providing that, in the context of federal officer
removal, “[t]he party seeking removal bears the
burden of establishing federal jurisdiction”); Bailey v.
Monsanto Company, 176 F.Supp.3d 853, 869 (E.D. Mo.
2016) (providing that the “removing party bears the
burden of proving the grounds supporting federal
officer removal”) (citing Ruppel, 701 F.3d at 1180);
O’Brien v. Cessna Aircraft Co., No. 8:09CV40, 2010
WL 4721189, at *4 (D. Neb. July 21, 2010) (providing
that the party that removed the case “has the burden
of establishing federal officer jurisdiction under 28
U.S.C. § 1442(a)(1)”).
“[T]he federal officer removal statute was
designed to avert various forms of state court
prejudice against federal officers or those private
persons acting as an assistant to a federal official in
helping that official carry out federal law.” Jacks, 701
F.3d at 1231. However, “not all relationships between
private entities or individuals and the federal
government suffice to effect removal under the federal
officer removal statute.” Id. In order to fall under the
federal officer removal statute, “[t]he assistance that
private contractors provide federal officers [must go]
beyond simple compliance with the law and help[]
officers fulfill other basic government tasks.” Id.
(alterations in original) (quoting Watson v. Philip
Morris Cos., Inc., 551 U.S. 142, 153 (2007)).
App-93
In considering the first element, acting under the
direction of a federal officer, the Supreme Court has
explained that “[t]he words ‘acting under’ are broad”
and “the statute must be ‘liberally construed’” but the
“broad language is not limitless.” Watson, 551 U.S. at
147. The Supreme Court has interpreted the word
“under” to mean “a relationship that involves acting in
a certain capacity, considered in relation to one
holding a superior position or office” and “typically
involves subjection, guidance, or control.” Id. at 151
(quotations omitted). Further, the Supreme Court
explained that “the private person’s ‘acting under’
must involve an effort to assist, or to help carry out,
the duties or tasks of the federal superior.” Id. at 152.
“[T]he help or assistance necessary to bring a private
person within the scope of the statute does not include
simply complying with the law.” Id. Recently, the First
Circuit Court of Appeals succinctly summarized the
discussion of “acting under” in Watson as follows,
“‘[a]cting under’ connotates subjection, guidance, or
control and involves an effort to assist, or to help carry
out, the duties or tasks of the federal superior.” Rhode
Island v. Shell oil Products Co., L.L.C., 979 F.3d 50,
59 (1st Cir. 2020).
The Third Circuit Court of Appeals provides a
useful explanation of the second element, requiring a
causal connection between the defendant’s actions and
the official authority:
[B]efore 2011, proponents of removal
jurisdiction under § 1442 were required to
“demonstrate that the acts for which they
[we]re being sued” occurred at least in part
“because of what they were asked to do by the
App-94
[g]overnment.” Isaacson [v. Dow Chemical
Co.,] 517 F.3d [129,] 137 [(2d Cir. 2008)]. In
2011, however, the statute was amended to
encompass suits “for or relating to any act
under color of [federal] office.” 28 U.S.C.
§ 1442(a)(1) (2011). . . . [T]he Supreme Court
has defined [“or relating to”] in the context of
another statute: “The ordinary meaning of
the [] words [‘relating to’] is a broad one—‘to
stand in some relation; to have bearing or
concern; to pertain; refer, to bring into
association with or connection with.’” Morales
v. Trans World Airlines, Inc., 504 U.S. 374,
383, 112 S. Ct. 2031, 119 L.Ed.2d 157 (1992)
(quoting Black’s Law Dictionary 1158 (5th ed.
1979)); see also Shaw v. Delta Air Lines, Inc.,
463 U.S. 85, 96-97 & n.16, 103 S. Ct. 2890, 77
L.Ed.2d 490 (1983) (same). Thus, we find that
it is sufficient for there to be a “connection” or
“association” between the act in question and
the federal office. Our understanding
comports with the legislative history of the
amendment to § 1442(a)(1), which shows that
the addition of the words “or relating to” was
intended to “broaden the universe of acts that
enable Federal officers to remove to Federal
court.” H.R. Rep. No. 112-17, pt. 1 (2011), as
reprinted in 2011 U.S.C.C.A.N. 420, 425.
In re Commonwealth’s Motion to Appoint Counsel
Against or Directed to Defender Ass’n of Philadelphia,
790 F.3d 457, 471-72 (3d Cir. 2015) (second, seventh,
tenth and eleventh alterations in original). Similarly,
the Fourth Circuit Court of Appeals interpreted the
addition of “relating to” in § 1442(a)(1) to “broaden the
App-95
universe of acts that enable federal removal . . . such
that there need be only a connection or association
between the act in question and the federal office.”
Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 258 (4th
Cir. 2017) (quotations omitted). More recently, the
Fifth Circuit Court of Appeals addressed the second
element as follows, “[s]ubject to the other
requirements of section 1442(a), any civil action that
is connected or associated with an act under color of
federal office may be removed” and “to remove under
section 1442(a), a defendant must show . . . [that] the
charged conduct is connected or associated with an act
pursuant to a federal officer’s directions.” Latiolais,
951 F.3d at 296; see also Baker v. Atlantic Richfield
Co., 962 F.3d 937, 943-44 (7th Cir. 2020) (following the
3d Circuit, 4th Circuit and 5th Circuit in requiring a
connection or association for federal officer removal).
As to the third element, requiring a colorable
defense, the Eighth Circuit Court of Appeals has
stated that, “[f]or a defense to be colorable, it need only
be plausible; § 1442(a)(1) does not require a court to
hold that a defense will be successful before removal
is appropriate.” United States v. Todd, 245 F.3d 691,
693 (8th Cir. 2001). “[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.” Latiolais, 951 F.3d at
297.
Finally, the fourth element, requiring that the
defendant be a person, the term “person” includes
corporations. See Jacks, 701 F.3d at 1230 n.3 (“[T]he
‘person’ contemplated by the federal officer removal
statute includes corporations.”).
App-96
C. Application
1.
Federal Officer Removal
a.
Acted under the direction of a
federal officer
While Tyson emphasizes that President Trump’s
April 28, 2020 Executive Order, and, to a lesser extent,
Secretary Perdue’s May 5, 2020 letter demonstrate
that Tyson was acting under a federal officer, Tyson’s
emphasis is misplaced. The primary allegations in the
Petition all took place prior to April 28, 2020 and May
5, 2020. Indeed, Isidro Fernandez died on April 26,
2020. Petition ¶ 3.
Further, even though President Trump 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. Tyson contends that it “operated its
facilities—including the Waterloo 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.” Resistance at 15. Tyson
claims that it was “in constant contact with federal
officials at the Department of Homeland Security
[(“DHS”)] and the USDA regarding continued
operations[.]” Id. While Tyson may have been in
regular contact with DHS and 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
App-97
“an effort to assist, or to help carry out, the duties or
tasks of the federal superior.” Rhode Island, 979 F.3d
at 59; see also Mayor & City Council of Baltimore, 952
F.3d 452, 466 n.9 (4th Cir. 2020) (noting that “[t]his is
a complex case, and we do not intend to suggest that
Defendants were required to outline the leases’
requirements in painstaking detail in order to satisfy
their burden of justifying federal officer removal. But
they must provide ‘candid, specific and positive’
allegations that they were acting under federal
officers.”) (quotation omitted); Betzner, 910 F.3d at
1015 (finding that defendant was acting under the
United States Air Force in manufacturing a heavy
bomber aircraft “under the military’s detailed and
ongoing control”); Ruppel, 701 F.3d at 1181 (“CBS
worked hand-in-hand with the government, assisting
the federal government in building warships. ‘Acting
under’ covers situations, like this one, where the
federal government uses a private corporation to
achieve an end it would have otherwise used its own
agents to complete.”).
Based on the forgoing, the court finds that Tyson
has failed to demonstrate that it acted under the
direction of a federal officer. Therefore, removal under
the federal officer statute is improper.
b.
Causal connection
Even if Tyson acted under the direction of a
federal officer, which it did not, Tyson has failed to
demonstrate a causal connection between its actions
and the official authority. First, the primary directives
relied upon by Tyson, President Trump’s April 28,
2020 Executive Order and Secretary Perdue’s May 5,
App-98
2020 letter, were issued after the primary allegations
in the Petition had taken place.
Second, Tyson incorrectly frames the tort
allegations in Plaintiff’s Petition. Plaintiff’s Petition
does not seek damages in tort for Tyson’s failure to
shut down the Waterloo facility due to the coronavirus
pandemic; but instead, Plaintiff seeks damages in tort
against Tyson and its named executives and
supervisors for alleged fraudulent misrepresentations
and gross negligence with regard to the danger, risks
and handling of the coronavirus pandemic and
COVID-19 outbreak at the Waterloo facility. See
Petition ¶¶ 89-141. While Plaintiff’s twenty-seven
page Petition may contain four numbered paragraphs
out of 150 total paragraphs that suggest that
production should have been halted or slowed due to
the COVID-19 threat, overall, the allegations in the
Petition do not focus on the shutting down of the
facility and Plaintiff’s allegations of negligence and
fraudulent misrepresentation are not directed at
Tyson’s decision not to shut down the facility. In fact,
even though Tyson claims that they were directed by
the President of the United States and the Secretary
of Agriculture to keep the Waterloo facility open for
purposes of keeping the national food supply chain
operating, Defendants did in fact shut down
operations at the Waterloo facility from April 22, 2020
to May 7, 2020 due to the coronavirus. Id. ¶¶ 77, 82.
Further, Tyson also closed the Columbus Junction
facility due to a COVID-19 outbreak. Id. ¶ 54.
Third, even if Tyson kept the Waterloo facility
open and implemented coronavirus safety measures at
the direction of a federal officer, the alleged conduct in
App-99
Plaintiff’s Petition is not connected or associated in
any manner with the directions of a federal officer. No
federal officer directed Tyson to keep its Waterloo
facility open in a negligent manner (failing to provide
employees with personal protective equipment, failing
to implement adequate social distancing measures,
failing to implement adequate safety measures related
to
the
coronavirus)
or
make
fraudulent
misrepresentations to employees at the Waterloo
facility regarding the risks or severity of the
coronavirus pandemic and COVID-19 outbreak at the
Waterloo facility.
Based on the forgoing, the court finds that Tyson
has failed to demonstrate a causal connection between
its actions and a federal authority. Therefore, removal
under the federal officer statute is improper.
c.
Colorable federal defense
Even if Tyson acted under the direction of a
federal officer, which it did not, and demonstrated a
causal connection between its actions and a federal
authority, which it also did not show, Tyson has failed
to demonstrate it has a colorable federal defense.
As already discussed above, Tyson’s reliance on
President Trump’s April 28, 2020 Executive Order and
the DPA are misplaced. President Trump’s April 28,
2020 Executive Order invoking the DPA was issued
after the primary allegations in the Petition had
occurred.
With regard to the FMIA, the Act “regulates the
inspection, handling, and slaughter of livestock for
human consumption.” Harris, 565 U.S. at 455. “The
FMIA regulates a broad range of activities at
slaughterhouses to ensure both safety of meat and
App-100
humane handling of animals.” Id. “The Department of
Agriculture’s Food Safety and Inspection Service
(FSIS) has responsibility for administering the FMIA
to promote its dual goals of safe meat and humane
slaughter.” Id. at 456. The FMIA’s preemption clause
“prevents a State from imposing any additional or
different—even if non-conflicting—requirements that
fall within the scope of the Act and concern
slaughterhouse’s facilities or operations.” Id. at 459-60
(emphasis added). The Supreme Court noted that
“state laws of general application (workplace safety
regulations, building codes, etc.) will usually apply to
slaughterhouses.” Id. at 467 n.10. While Tyson points
out federal regulations promulgated by FSIS
regarding infectious disease, see Resistance at 19-21,
it is difficult to see how these regulations relate to the
tort claims alleged in Plaintiff’s Petition or the issues
raised by the coronavirus pandemic. Tyson has failed
to demonstrate that the allegations contained in
Plaintiff’s Petition fall within the scope of the FMIA.
Further, it appears that Tyson’s reliance on the FMIA
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”) (quotations
omitted)).
Based on the forgoing, the court finds that Tyson
has failed to demonstrate that it has a colorable
federal defense to Plaintiff’s claims. Therefore,
removal under the federal officer statute is improper.
App-101
d.
Summary
The court finds that Tyson has failed to
demonstrate: (1) that it acted under the direction of a
federal officer; (2) that there is a causal connection
between its actions and a federal authority; and
(3) that it has a colorable federal defense. Accordingly,
Tyson’s removal based on the federal officer statute is
improper.
2.
Removal Based on a Federal Question
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 and
fraudulent misrepresentation. See Markham, 861
F.3d at 754 (providing that “federal jurisdiction exists
only when a federal question is presented on the face
of the plaintiff’s properly pleaded complaint”) (quoting
Caterpillar Inc., 482 U.S. at 392). Furthermore,
Plaintiff’s
negligence
and
fraudulent
misrepresentation claims do not allege a cause of
action created by a federal statute. See Merrell Dow,
478 U.S. at 808 (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 President
Trump’s invocation of the DPA on April 28, 2020 in the
Executive Order is misplaced because the April 28,
2020 Executive Order invoking the DPA was issued
after the primary allegations in the Petition had
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