Opposition Brief — Tyson Foods, Inc., et al., Petitioners v. Hus Hari Buljic, et al.

No. 22-70

IN THE

Supreme Court of the United States

TYSON FOODS, INC., et al.,

Petitioners,

v.

HUS HARI BULJIC, OSCAR FERNANDEZ, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Eighth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

THOMAS P. FRERICHS

FRERICHS LAW OFFICE, PC

106 E. 4th St.

P.O. Box 328

Waterloo, IA 50704

MEL. C. ORCHARD, III

G. BRYAN ULMER, III

GABRIEL PHILLIPS

THE SPENCE LAW

FIRM, LLC

15 S. Jackson Street

P.O. Box 548

Jackson, WY 83001

ADAM R. PULVER

Counsel of Record

SCOTT L. NELSON

ALLISON M. ZIEVE

PUBLIC CITIZEN

LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

apulver@citizen.org

JOHN J. RAUSCH

RAUSCH LAW FIRM, PLLC

3909 University Ave.

P.O. Box 905

Waterloo, IA 50704

Attorneys for Respondents

November 2022

i

QUESTION PRESENTED

Whether, contrary to the unanimous holdings of

the courts of appeals, generic statements of support

and encouragement from federal officials, nonbinding

guidance that explicitly defers to state and local

authorities, and industry requests for federal

government assistance transform private market

activity into acts taken “under” federal officer

direction for purposes of removal under 28 U.S.C.

§ 1442(a)(1).

ii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ...................................... iii

INTRODUCTION ....................................................... 1

STATEMENT .............................................................. 3

Factual background .................................................... 3

A.

The Waterloo Outbreak .............................. 3

B.

The federal response to the pandemic ....... 4

Procedural background ............................................... 9

A.

District court proceedings .......................... 9

B.

Court of appeals proceedings ................... 11

REASONS FOR DENYING THE WRIT .................. 14

I.

The courts of appeals are in wide agreement

about both the law and its application to

Tyson’s facts. ...................................................... 15

A.

Two courts of appeals have rejected Tyson’s

arguments as unsupported by the facts and

the law. ...................................................... 16

B.

Courts of appeals widely agree that federal

recognition of an entity’s importance

during a pandemic does not establish an

“acting under” relationship. ..................... 18

II. The factbound nature of the decision below

makes it particularly unsuitable for review. .... 21

III. The opinion below does not contain the “rules”

Tyson ascribes to it. ........................................... 22

IV. Alternative bases for affirmance recognized by

the district court counsel against review. ......... 25

CONCLUSION.......................................................... 27

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Box v. PetroTel, Inc.,

33 F.4th 195 (5th Cir. 2022) .................................. 20

In re Commonwealth’s Motion to Appoint Couns.

Against or Directed to Def. Ass’n of Phila.,

790 F.3d 457 (3d Cir. 2015) ................................... 12

Cty. Bd. of Arlington Cty. v. Express Scripts

Pharmacy, Inc.,

996 F.3d 243 (4th Cir. 2021) .................................. 11

E. Air Lines, Inc. v. McDonnell Douglas Corp.,

532 F.2d 957 (5th Cir. 1976) .................................. 26

Fidelitad, Inc. v. Insitu, Inc.,

904 F.3d 1095 (9th Cir. 2018) .......................... 12, 20

Fields v. Brown,

2022 WL 4990258 (5th Cir. Oct. 3, 2022).............. 17

Glenn v. Tyson Foods, Inc.,

40 F.4th 230 (5th Cir. 2022) ................ 16, 17, 19, 20

Graves v. 3M Co.,

17 F.4th 764 (8th Cir. 2021) .................................. 13

Hercules Inc. v. United States,

24 F.3d 188 (Fed. Cir. 1994) .................................. 26

iv

Isaacson v. Dow Chem. Co.,

517 F.3d 129 (2d Cir. 2008) ................................... 12

Jacks v. Meridian Res. Co, LLC,

701 F.3d 1224 (8th Cir. 2012) .......................... 12, 23

Jefferson Cty., Ala. v. Acker,

527 U.S. 423 (1999) .......................................... 14, 15

Jennings v. Stephens,

574 U.S. 271 (2015) ................................................ 24

Johnson v. Tyson Foods, Inc.,

2022 WL 2161520 (W.D. Tenn. June 15, 2022) .... 18

Johnson v. Tyson Foods, Inc.,

2021 WL 5107723 (W.D. Tenn. Nov. 3, 2021) ....... 18

Latiolais v. Huntington Ingalls, Inc.,

951 F.3d 286 (5th Cir. 2020) ............................ 14, 25

Maglioli v. All. HC Holdings LLC,

16 F.4th 393 (3d Cir. 2021) .................... 2, 13, 19, 23

Martin v. Petersen Health Operations, LLC,

37 F.4th 1210 (7th Cir. 2022) ................................ 19

Maryland v. Soper,

270 U.S. 9 (1926) .................................................... 12

Mays v. City of Flint, Mich.,

871 F.3d 437 (6th Cir. 2017) ............................ 18, 21

Mitchell v. Advanced HCS, LLC,

28 F.4th 580 (5th Cir. 2022) ............................ 19, 20

v

Moore v. Elec. Boat Corp.,

25 F.4th 30 (1st Cir. 2022) ..................................... 14

Nat’l Meat Ass’n v. Harris,

565 U.S. 452 (2012) .......................................... 26, 27

Reed v. Tyson Foods, Inc.,

2022 WL 2134410 (W.D. Tenn. June 14, 2022) .... 18

Reed v. Tyson Foods, Inc.,

2021 WL 5107725 (W.D. Tenn. Nov. 3, 2021) ....... 18

Saldana v. Glenhaven Healthcare LLC,

27 F.4th 679 (9th Cir. 2022) ............................ 19, 20

Sawyer v. Foster Wheeler LLC,

860 F.3d 249 (4th Cir. 2018) .................................. 14

United States v. Vertac Chem. Corp.,

46 F.3d 803 (8th Cir. 1995) .................................... 26

Watson v. Philip Morris Cos.,

551 U.S. 142 (2001) .........................................passim

Wazelle v. Tyson Foods, Inc.,

2022 WL 4990424 (5th Cir. Oct. 3, 2022).............. 18

Federal Statutes

21 U.S.C. § 455 ............................................................ 6

21 U.S.C. §§ 603–06 .................................................... 6

21 U.S.C. § 678 .......................................................... 26

vi

28 U.S.C. § 1331 ........................................................ 10

28 U.S.C. § 1442(a)(1) ........................................passim

50 U.S.C. § 4557 ........................................................ 26

Other Authorities

Department of Agriculture, Press Release, Secretary

Perdue Issues Letters on Meat Packing

Expectations (May 6, 2020),

https://www.usda.gov/media/press-releases/2020/

05/06/secretary-perdue-issues-letters-meatpacking-expectations...................................... 8, 9, 10

Department of Agriculture, Stakeholder Letter (May

6, 2020),

https://web.archive.org/web/20210126054925/

https://www.usda.gov/sites/default/files/documents/

stakeholder-letters-covid.pdf ................................... 9

Department of Agriculture, Food Safety Inspection

Service, Common Questions about Food Safety and

COVID-19 (Mar. 18, 2020),

https://web.archive.org/web/20210118080913/

https:/www.fsis.usda.gov/wps/portal/fsis/

newsroom/Common-Questions-about-FoodSafety-and-COVID-19 ...................................................... 6

Department of Agriculture, Statement to Industry,

(Mar. 16, 2020) ......................................................... 6

vii

Department of Agriculture, COVID-19: Food Supply

Chain (undated),

https://www.usda.gov/coronavirus/food-supplychain#food-safety ..................................................... 6

Department of Homeland Security, Cybersecurity

and Infrastructure Security Agency, Guidelines for

America: Memorandum on Identification of

Essential Critical Infrastructure Workers During

COVID-19 Response (Mar. 19, 2020)................. 5, 12

Department of Labor, Occupational Safety and

Health Administration, Press Release, U.S.

Department of Labor’s OSHA and CDC Issue

Interim Guidance to Protect Workers in

Meatpacking and Processing Industries (Apr. 26,

2020),

https://www.osha.gov/news/newsreleases/national/04

262020 ......................................................................... 8

Executive Order 13917, Delegating Authority Under

the Defense Production Act With Respect to Food

Supply Chain Resources During the National

Emergency Caused by the Outbreak of COVID-19,

85 Fed. Reg. 26,313 (Apr. 28, 2020) .......... 8, 9, 10, 14

Presidential Proclamation 9994, Declaring a

National Emergency Concerning the Novel

Coronavirus Disease (COVID-19),

85 Fed. Reg. 15,337 (Mar. 18, 2020) ................... 4, 10

Supreme Court Rule 10 ...................................... 21, 22

White House, The President’s Coronavirus

Guidelines for America (Mar. 21, 2020) .............. 4, 5

INTRODUCTION

Two courts of appeals, including the Eighth Circuit

in this case, have considered Tyson’s claims that its

operation of meat- and poultry-processing plants in

early 2020 constituted action taken “under” the

direction of federal officers, as that term is used in the

federal-officer removal statute, 28 U.S.C. § 1442(a)(1).

Both courts concluded, in the words of the Eighth

Circuit, that “[t]he record … tells a different story.”

Pet. App. 15. The tweets, press statements, guidance,

and industry requests for federal aid that Tyson put

forward, to the extent they have anything to do with

Tyson at all, do not demonstrate the kind of

subservient relationship between a private actor and

the federal government that this Court has held is

necessary to justify federal-officer removal.

The courts of appeals’ thorough decisions finding

Tyson’s evidence of federal direction inadequate under

existing case law is consistent with those of three

additional courts of appeals considering similar

arguments made by other regulated entities facing

COVID-19-related claims. Those courts, too,

unanimously rejected the notion that the federal

response to COVID-19 so radically changed the

relationship between the federal government and

participants in the nation’s “critical infrastructure”

industries as to transform those participants into ones

acting under federal officers, and thus able to avoid

state court jurisdiction over all claims relating to their

operations pursuant to section 1442(a)(1). In total,

then, five courts of appeals have concluded, all

unanimously, that, under this Court’s precedent,

recognition by federal officials of the importance of

private-sector activities does not render performance

2

of those activities action taken “under” federal officer

direction, as section 1442(a)(1) requires.

Despite this broad consensus and the federal

government’s agreement as expressed in amicus briefs

in the courts of appeals, Tyson seeks review. Its

petition, however, mischaracterizes both the facts, as

methodically explained by the courts of appeals, and

the holdings of the court below. To the extent that

Tyson disagrees with the Eighth Circuit’s (and Fifth

Circuit’s) reading of the factual record, that

disagreement is not a basis for this Court’s review.

And Tyson’s accusation that the lower courts have

adopted new rules limiting federal officer removal by

rejecting its arguments is unsupported. As the Eighth

Circuit explained, the reason “Tyson’s argument that

it was ‘acting under’ federal officers is untenable” is

because it has not shown that any federal directive,

formal or informal, existed. Pet. App. 19. This

straightforward, fact-bound conclusion is compelled

by the Court’s precedent.

There is no question that the events underlying

this case arose during “the greatest national health

crisis in a century.” Pet. 1. But as the courts of appeals

have agreed, “[t]here is no COVID-19 exception to

federalism.” Maglioli v. All. HC Holdings LLC, 16

F.4th 393, 400 (3d Cir. 2021). Contrary to Tyson’s

assertion, there is nothing “dangerous” about this

conclusion. Pet. 37. Rather, the answer that Tyson

seeks—that any action the federal government deems

important is federalized for jurisdictional purposes—

would be dangerous to the constitutional division of

responsibilities between the federal government and

the states. There is no basis for review.

3

STATEMENT

Factual background

A. The Waterloo outbreak

The two actions that comprise this case stem from

an outbreak of COVID-19 at Tyson’s pork processing

facility in Waterloo, Iowa, in March and April 2020.

Pet. App. 9.

On April 6, 2020, Tyson suspended operations at

its facility in Columbus Junction, Iowa, after more

than two dozen employees there tested positive for

COVID-19. 8th Cir. App. 48, 278. Tyson transferred

potentially exposed workers from that plant to

Waterloo without testing or screening. Id. 49, 280.

Indeed, despite the well-publicized, surging COVID19 infection rates in meatpacking plants nationwide,

the only safeguards that Tyson put into place at

Waterloo were temperature-check stations. Id. 47,

278. Workers at Waterloo continued to work elbow-toelbow, mostly without face coverings. Id. 48, 279.

Tyson did not provide or require face coverings or

other appropriate personal protective equipment

(PPE). Id. 48, 57, 278, 287. Tyson did not promote

social distancing, did not modify communal work

areas to minimize contact between employees, and did

not install physical barriers to separate or shield

workers from each other. Id. 48, 57, 278, 287. Rather

than isolating and sending home sick and

symptomatic workers, plant managers allowed and

encouraged infected and exposed employees to report

to work and continue working. Id. 49, 58, 280, 288.

When one worker vomited on the production line,

Tyson allowed him to keep working and return to

work the next day. Id. 49, 280.

4

On the night of April 12, 2020, nearly two dozen

Tyson employees were admitted to the emergency

room at a single Waterloo hospital. Id. 48. Despite

multiple requests from Black Hawk County and

elected officials, Tyson refused to shut down the

Waterloo plant, even temporarily. Id. 48, 279. Instead,

plant management deliberately concealed the scope of

the outbreak and lied to employees. Id. 49, 53–54,

280, 284. Managers falsely told workers that COVID19 had not been detected at the facility and that their

co-workers had the flu. Id. 49, 54, 280, 284. They

falsely stated that Tyson had adopted strict screening

and tracing policies. Id. 54, 284.

COVID-19 continued to spread among Waterloo

workers, and, as a result, Tyson eventually shut down

the facility on April 22, 2020. Id. 50, 281. By August

2020, Black Hawk County had recorded more than

1,000 cases of COVID-19 among Tyson employees—

more than one-third of the Waterloo workforce. Id. 51,

282. Among them were Sedika Buljic, Reberiano Leno

Garcia, Jose Luis Ayala, and Isidro Fernandez, all of

whom contracted the coronavirus while working at

Tyson’s Waterloo plant and later died from COVID-19.

Id. 42, 274.

B. The federal response to the pandemic

In March and April 2020, various federal

government officials took steps to assist state and

local governments, businesses, and the American

people as they coped with the pandemic. On March 13,

2020, the President declared a national emergency.

See Pres. Proclamation 9994, Declaring a National

Emergency Concerning the Novel Coronavirus

Disease (COVID-19), 85 Fed. Reg. 15,337 (Mar. 18,

2020). Three days later, the White House issued “The

5

President’s Coronavirus Guidelines for America.” 8th

Cir. App. 178–79. This two-page document contained

generic advice like “If you feel sick, stay home” and

“Avoid discretionary travel.” Id. It also stated, “If you

work in a critical infrastructure industry, … you have

a special responsibility to maintain your normal work

schedule,” and “Listen to and follow the directions of

your state and local authorities.” Id.

On March 19, 2020, the Cybersecurity and

Infrastructure Security Agency (CISA), a component

of the Department of Homeland Security (DHS),

issued guidance explicating the reference to critical

infrastructure workers in the “Guidelines for

America.” CISA, Memorandum on Identification of

Essential Critical Infrastructure Workers During

COVID-19 Response (CISA Memo) (Mar. 19, 2020),

8th Cir. App. 160–70. CISA provided an “initial list of

‘Essential Critical Infrastructure Workers’ to help

State and local officials as they work to protect their

communities, while ensuring continuity of functions

critical to public health and safety, as well as economic

and national security.” Id. 160 (emphasis added). That

list included hundreds of categories of workers,

including those in meatpacking plants, as well as,

inter alia, restaurant delivery employees, bank

tellers, auto repair workers, hotel workers, and blood

donors. Id. 164–70. CISA emphasized that “this list is

advisory in nature” and “is not, nor should it be

considered to be, a federal directive or standard in and

of itself.” Id. 161. CISA confirmed 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.”

Id.

6

Around the same time, federal agencies started

issuing guidance to industries they regulate and

serve. With respect to the meatpacking industry,

concern quickly arose in March 2020 about the safety

of federal employees conducting on-site examinations

and inspections of animals, carcasses, and meat

during the slaughter and production process, as

required by the Federal Meat Inspection Act (FMIA)

and other laws. See, e.g., 21 U.S.C. §§ 603–06 (FMIA);

21 U.S.C. § 455 (Poultry Products Inspection Act).

Given “questions about how the department will

continue to ensure that grading and inspection

personnel are available” despite the pandemic, on

March 16, 2020, the U.S. Department of Agriculture

(USDA) issued a “Statement to Industry,” in which it

“assured” the industry that it was “committed to

ensuring the health and safety of [USDA] employees

while still providing the timely delivery of services.”

8th Cir. App. 180. USDA stated that agency field

personnel would “be working closely with establishment management and state and local health

authorities to handle situations as they arise.” Id. It

later issued a memorandum identifying conditions

under which regulated entities were allowed to

exclude USDA inspectors from their facilities because

of risk of coronavirus exposure. Id. 182.

USDA also created a website titled “Common

Questions about Food Safety and COVID-19”

(Common Questions) (Mar. 18, 2020).1 Two of the

1 https://web.archive.org/web/20210118080913/https://www.

fsis.usda.gov/wps/portal/fsis/newsroom/Common-Questionsabout-Food-Safety-and-COVID-19. Later in 2020, USDA reposted these questions and answers on a different website, where

they remain today. See USDA, COVID-19: Food Supply Chain

(Footnote continued)

7

questions and answers it posted are particularly

relevant to this case. First, to the question whether

plants were required to “report to FSIS if employees

become ill with COVID-19,” the agency responded: “In

the event of a diagnosed COVID-19 illness, FSIS will

follow and is encouraging establishments to follow the

recommendations of local public health authorities

regarding notification of potential contacts.” Id.

Second, to the question, “Can a county health

department or state government shut down an FSISregulated establishment?,” FSIS responded: “Yes, and

FSIS will follow state and local health department

decisions.” Id.

Throughout March 2020, Tyson, individually and

through an industry group, lobbied both the Federal

Emergency Management Agency (FEMA) and USDA

to help procure PPE and other supplies. 8th Cir. App.

140, 170–177. At the time, Tyson stated that it was

concerned that the Centers for Disease Control (CDC)

“may suggest some type of protective face coverings.”

Id. 173. On April 3, 2020, a Tyson executive

commented that the government’s response to its

requests for assistance indicated that Tyson was

“being heard.” Id.

More than three weeks later, after Sedika Buljic

and Reberiano Garcia had died, after Tyson had closed

the Waterloo plant due to COVID-19 outbreaks, and

on the day Isidro Fernandez died, the Occupational

Safety and Health Administration (OSHA) and the

CDC issued “interim guidance” for the meatpacking

industry that, for the first time, “include[d]

recommended actions employers can take to reduce

(Food Supply Q&A), https://www.usda.gov/coronavirus/foodsupply-chain#food-safety.

8

the risk of exposure to the coronavirus.” OSHA, Press

Release, U.S. Department of Labor’s OSHA and CDC

Issue Interim Guidance to Protect Workers in

Meatpacking and Processing Industries (Apr. 26,

2020) (emphasis added).2

On April 28, 2020, President Trump issued

Executive Order 13917, Delegating Authority Under

the Defense Production Act With Respect to Food

Supply Chain Resources During the National

Emergency Caused by the Outbreak of COVID-19, 85

Fed. Reg. 26,313 (Apr. 28, 2020). That order directed

the Secretary of Agriculture to “take all appropriate

action” under section 101 of the Defense Production

Act (DPA) “to ensure that meat and poultry processors

continue operations consistent with the guidance for

their operations jointly issued by the CDC and

OSHA.” Id. at 26,313.

In the wake of the Executive Order, USDA took

two actions. First, the Secretary of Agriculture sent

two letters on May 5, 2020, one to “stakeholders” and

one to governors. See USDA, Press Release, Secretary

Perdue Issues Letters on Meat Packing Expectations,

(May 6, 2020).3 The stakeholder letter stated that

“meat and poultry processing plants” “should utilize”

the April 26 CDC/OSHA guidance, that plants that

were contemplating reductions of operations or had

recently closed “should submit written documentation

of their operations and health and safety protocols,”

and that plants “should resume operations as soon as

they are able after implementing the CDC/OSHA

2 https://www.osha.gov/news/newsreleases/national/

04262020.

3 https://www.usda.gov/media/press-releases/2020/05/06/

secretary-perdue-issues-letters-meat-packing-expectations.

9

guidance.” May 5, 2020 Letter from Secretary Sonny

Perdue (May 5 Letter).4 The letter also stated that

USDA would work with, among others, “state, tribal,

and local officials to ensure facilities are

implementing practices consistent with the guidance

to keep employees safe and continue operations.” Id.

The Secretary “exhort[ed] [stakeholders] to do this,”

and noted that “further action under the Executive

Order and the Defense Production Act is under

consideration and will be taken if necessary.” Id.

Second, USDA posted questions and answers about

the Executive Order on its website, where it stated

that, “If necessary, the Secretary may issue orders

under the Executive Order and the Defense

Production Act requiring meat and poultry

establishments to fulfill their contracts.” Food Supply

Q&A, supra n.1.

In an amicus brief filed in the court of appeals, the

United States confirmed that no such orders were ever

issued. U.S. Amicus Br. 4.

Procedural background

A. District court proceedings

Tyson’s petition to this Court arises from two

actions brought by survivors and administrators of the

estates of Sedika Buljic, Reberiano Leno Garcia, Jose

Luis Ayala, Jr., and Isidro Fernandez. The plaintiffs

in the Buljic action, the survivors of Ms. Buljic, Mr.

Garcia, and Mr. Ayala, filed a petition in Iowa District

Court for Black Hawk County on June 25, 2020,

bringing claims against Tyson under state-law

4https://web.archive.org/web/20210126054925/https://www.

usda.gov/sites/default/files/documents/stakeholder-letters-covid.

pdf.

10

theories of negligence and fraudulent misrepresentation. 8th Cir. App. 41. The son of Isidro Fernandez

filed a substantively similar petition in the same court

on August 5, 2020. Id. 273. Both petitions alleged that

Tyson’s failures to take basic precautions—including

failures to require workers to wear face coverings, to

isolate and send home sick workers, and to inform or

warn workers of possible COVID-19 exposure—and its

fraudulent misrepresentations to workers about risks

to their health resulted in the deaths of the plaintiffs’

loved ones. Id. 54–55, 56–69, 283–85, 286–89.

Tyson removed both actions to the United States

District Court for the Northern District of Iowa,

asserting that that court had jurisdiction under both

the federal-officer removal statute, 28 U.S.C.

§ 1442(a)(1), and the federal-question jurisdiction

statute, 28 U.S.C. § 1331. 8th Cir. App. 22–23, 211.

Plaintiffs in both cases moved to remand the actions

to state court. On December 28, 2020, the district

court granted both motions in substantively identical

orders. Pet. App. 25, 66. As to section 1442(a)(1), the

court held that Tyson failed to establish the requisite

elements for federal-officer removal. First, it held that

Tyson “failed to demonstrate that it acted under the

direction of a federal officer,” noting that the dates of

Executive Order 13917 and the May 5 letters made

them irrelevant, and that the March 13 national

emergency declaration and Tyson’s claimed “constant

contact” with federal agencies and operation as

“critical infrastructure” did not demonstrate Tyson

was “acting under” any federal officers as required by

the statute. Id. 57–59, 96–97. Second, the court held

there was no “causal connection between [Tyson’s]

actions and the official authority” cited by Tyson,

noting the lack of evidence that any federal officer

11

directed Tyson to take or not take any of the actions

that form the basis of Plaintiffs’ claims. Id. 59–60, 97–

99. The court further pointed out that, despite Tyson’s

claims that the federal government was forcing it to

keep its plants open, Tyson did shut down plants both

before and after the Waterloo outbreak. Id. 60, 98.

Third, the court held that neither the DPA nor the

FMIA provided Tyson with a colorable federal defense

to the claims at issue Id. 60–62, 99–100. The court also

rejected

Tyson’s

federal-question

jurisdiction

argument. Id. 62–63, 101–02.

B. Court of appeals proceedings

Tyson appealed both remand orders to the Eighth

Circuit, where the cases were consolidated. On appeal,

Tyson abandoned its federal-question argument and

pursued only the federal-officer removal theory. See

Pet. App. 20–21.

The Eighth Circuit unanimously affirmed the

district court’s remand order. While recognizing that

“[t]he federal officer removal statute is to be ‘liberally

construed,’” Id. 12 (quoting Cty. Bd. of Arlington Cty.

v. Express Scripts Pharmacy, Inc., 996 F.3d 243, 250–

51 (4th Cir. 2021)), the court explained that “not all

relationships between private entities and the federal

government satisfy” the statutory requirement that a

private individual have been “‘acting under’ a federal

officer or agency in carrying out the acts that underlie

the plaintiff’s complaint.” Id. (citing Watson v. Philip

Morris Cos., 551 U.S. 142, 147 (2001)). Pointing to this

Court’s decision in Watson, the court of appeals stated

that “the fact that an entity—such as a meat

processor—is subject to pervasive federal regulation

alone is not sufficient to confer federal jurisdiction.”

Id. 13. Rather, the court explained, “the private entity

12

must help federal officers fulfill ‘basic governmental

tasks.’” Id. (quoting Watson, 551 U.S. at 153). The

Eighth Circuit highlighted several examples from

prior case law where this standard had been met,

including where “a private person was acting under

the direction of a federal law enforcement officer” and

“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.” Id.

13–14 (quoting Fidelitad, Inc. v. Insitu, Inc., 904 F.3d

1095, 1099 (9th Cir. 2018), and citing Maryland v.

Soper, 270 U.S. 9, 30 (1926), Jacks v. Meridian Res.

Co, LLC, 701 F.3d 1224, 1233 (8th Cir. 2012), 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), and Isaacson v. Dow Chem. Co., 517 F.3d

129, 136–37 (2d Cir. 2008)).

The court of appeals found that Tyson did not meet

this standard, because its claim that “various communications from federal officials … constituted federal

directives” was not supported by the record. Id. 15.

The court methodically addressed each piece of

evidence on which Tyson relied and explained why

none established an “acting under” relationship.

First, the court of appeals explained, the fact that

the “food and agriculture” sector was one of sixteen

sectors of the economy designated “critical

infrastructure” “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 federal officers.” Id. 15–16. Noting the

“scores of categories of workers” referenced in the

CISA March 2020 guidance, and citing a Third Circuit

opinion rejecting a similar argument, the court

concluded: “It cannot be that the federal government’s

13

mere designation of an industry as important—or

even critical—is sufficient to federalize an entity’s

operations and confer federal jurisdiction.” Id. 16

(citing Maglioli, 16 F.4th at 406). To the contrary,

Tyson’s “designation as ‘critical infrastructure’ meant

that the federal government provided it assistance,

rather than the other way around,” and “‘government

advice and assistance’ are not enough to establish the

‘acting under’ relationship that § 1442(a)(1) requires.’”

Id. 16 (quoting Graves v. 3M Co., 17 F.4th 764, 770

(8th Cir. 2021)).

Second, the court turned to the “various

communications from federal officials and agencies”

cited by Tyson. The court explained that statements of

the President and Vice President that Tyson relied

upon did no more than “underscore[] the importance

of the food and agriculture industry,” and that USDA’s

March 16 “Statement to Industry” only “reaffirmed

that the Department remained committed to working

closely” with industry and emphasized the need for

“ongoing communication.” Id. 17. The court explained

that these statements “[a]t most” showed that “the

federal government was encouraging Tyson—and

other industries—to continue to operate normally.” Id.

But they did not show any federal officer “direct[ed] or

enlist[ed] Tyson to fulfill a government function or

even t[old] Tyson specifically what to do.” Id. To the

contrary, subsequent events showed Tyson “retained

complete, independent discretion over the continuity

of its operations.” Id. 18.

Finally, the court found no evidence to support

Tyson’s argument that it was subject to directives

issued pursuant to the DPA. Id. 18. The court

explained that March 2020 references to the DPA by

President Trump had nothing to do with Tyson or the

14

meatpacking industry at all. Id. And Executive Order

13917, which at least related to the meatpacking

industry, post-dated the injuries at issue in the cases.

Id. Even if that Executive Order could be construed as

a directive for purposes of section 1442(a)(1)—which

the court explained seemed unlikely given no evidence

that USDA ever exercised the authority to issue

orders that the Executive Order delegated to it—no

federal action that preceded it, formal or informal,

contained any directive to Tyson. Id. 19.

The court “thus conclude[d] 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.” Id. 20. In light of this finding,

it did not address the other requirements of the

statute that the district court had also found lacking.

Id.

Tyson filed a petition for rehearing and rehearing

en banc, which was denied without a call for a

response and without noted dissent. Id. 24.

REASONS FOR DENYING THE WRIT

To remove a state-law action to federal court under

28 U.S.C. § 1442(a)(1), a private actor must show that

(1) it acted under the direction of a federal officer,

(2) the claims against it relate to action taken

pursuant to the federal officer’s directions, and (3) it

has a “colorable federal defense” to the state-law

claims against it. See, e.g., Moore v. Elec. Boat Corp.,

25 F.4th 30, 34 (1st Cir. 2022); Latiolais v. Huntington

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

banc); Sawyer v. Foster Wheeler LLC, 860 F.3d 249,

254 (4th Cir. 2018); see also Jefferson Cty., Ala. v.

15

Acker, 527 U.S. 423, 431 (1999) (construing earlier

version of statute).

The court of appeals’ conclusion that Tyson’s

invocation of the statute failed to satisfy the first

element does not warrant review. That factbound

determination is consistent with the precedent of

other courts of appeals and this Court. Tyson’s failure

to meet the other requirements of the statute, as

recognized by the district court, presents an additional

reason to deny the petition.

I. The courts of appeals are in wide agreement

about both the law and its application to

Tyson’s facts.

Although Tyson asserts that this case raises a

question that is a “source of disarray in the lower

courts,” Pet. 35 (capitalization altered), Tyson does not

identify any conflict between the court of appeals’

decision in this case and decisions of any other court

of appeals (or this Court). Nor can it: No court of

appeals has found that recognition of an industry as

important, during a pandemic or otherwise, combined

with non-binding guidance, is enough to convert a

regulated entity into one “acting under” federal officer

direction for purposes of section 1442(a)(1), as this

Court defined that term in Watson. To the contrary,

two circuits rejected this argument as made by Tyson,

and three additional circuits have rejected similar

arguments raised by other “critical infrastructure”

entities that were the recipients of federal guidance

during the COVID-19 pandemic. No court of appeals

has held otherwise.

16

A. Two courts of appeals have rejected

Tyson’s arguments as unsupported by the

facts and the law.

As Tyson acknowledges, it made the same

arguments in this case and to the Fifth Circuit, which

also unanimously rejected them. In Glenn v. Tyson

Foods, Inc., 40 F.4th 230 (5th Cir. 2022), pet. for cert.

docketed Nov. 10, 2022, the Fifth Circuit conducted its

own independent analysis of Tyson’s evidence in

support of its claim of federal-officer direction, and it

reached the same conclusion as the Eighth Circuit:

“[T]he record simply does not bear out Tyson’s theory”

that it “was ‘acting under’ direction from the federal

government when it chose to” continue to operate its

plants during the pandemic. Id. at 232. Rather, the

record shows only “encouragement to meat and

poultry processors to continue operating, careful

monitoring of the food supply, and support for state

and local governments”—none of which amounts to

federal officer direction under the statute as construed

by this Court. Id. at 237.

Like the Eighth Circuit, the Fifth Circuit carefully

examined each piece of evidence that Tyson put

forward in support of its claim that it was acting under

federal direction. As to the food industry’s designation

as “critical infrastructure,” the court noted that

federal guidance to critical infrastructure entities was

both “nonbinding” and explicitly preserved the

primacy of state and local authorities Id. at 235. In

addition, it found that Tyson’s communications with

USDA “only show[ed] that Tyson was subject to heavy

regulation—not that it was an agent of the federal

government.” Id. at 236. Indeed, the court concluded

that Tyson’s argument that the regulation to which it

was subject sufficed to demonstrate that it was

17

performing a governmental task was weaker than the

argument rejected by this Court in Watson. Id. (citing

551 U.S. at 156–57).

Moreover, contrary to the petition’s suggestion, the

Fifth Circuit did not hold that “clear government

demands” cited by Tyson were insufficiently “explicit”

to trigger federal-officer removal. Pet. 34 (citing

Glenn, 40 F.4th at 232). Rather, it held that, as a

factual matter, “the record does not support Tyson’s

claim” that “federal officials made it clear that Tyson

had to keep its plants open.” 40 F.4th at 237.

“President Trump’s proclamation declaring a national

emergency, a conference call held in early March

between the President and dozens of companies, a

presidential tweet, guidance from the CDC and

OSHA, and the Vice President’s statement

encouraging food industry employees to do their jobs”

constituted encouragement, not direction, the court

concluded. Id. Finally, the Fifth Circuit held that

neither Executive Order 13917 nor USDA’s

subsequent letters actually directed meat and poultry

plants to do anything. Id.

As it had in the Eighth Circuit, Tyson sought en

banc rehearing of the Fifth Circuit’s decision. And as

in the Eighth Circuit, rehearing was denied without a

request for a response, with no member of the court

calling for a poll on rehearing en banc. See Aug. 29,

2022 Order, Glenn v. Tyson, 5th Cir. No. 21-30622.

Since Glenn was decided (and after Tyson filed its

petition), the Fifth Circuit has vacated as contrary to

its decision in Glenn two of the district court orders

cited by Tyson, Pet. 35, and remanded those cases to

the district court to consider whether jurisdiction

exists on other grounds. Fields v. Brown, No. 2140818, 2022 WL 4990258 (5th Cir. Oct. 3, 2022);

18

Wazelle v. Tyson Foods, Inc., No. 22-10061, 2022 WL

4990424 (5th Cir. Oct. 3, 2022).5

B. Courts of appeals widely agree that

federal recognition of an entity’s

importance during a pandemic does not

establish an “acting under” relationship.

Two courts of appeals’ rejection of Tyson’s factual

assertions as unsupported by the record and its legal

argument as foreclosed by this Court’s decision in

Watson is a compelling indication that the petition is

unworthy of review. The consensus among the courts

of appeals, however, is even broader. In the context of

COVID-19 alone, four courts of appeals have rejected

arguments by nursing homes asserting, like Tyson,

5 Tyson cites two additional decisions issued contemporane-

ously by a single district judge, finding that Tyson was entitled

to invoke the federal-officer removal statute, relying on the nowvacated district court decisions in Fields and Wazelle. Pet. 35

(citing Johnson v. Tyson Foods, Inc., No. 21-cv-01161, 2021 WL

5107723 (W.D. Tenn. Nov. 3, 2021), and Reed v. Tyson Foods,

Inc., No. 21-cv-01155, 2021 WL 5107725 (W.D. Tenn. Nov. 3,

2021)). A district court decision reaching the opposite conclusion

from two unanimous courts of appeals is not the sort of “disarray”

that warrants this Court’s intervention. Moreover, those cases

are challenges to Tyson’s COVID-19 vaccination policy, which

raises factual questions different from those in this case, and the

plaintiffs in each case subsequently amended their complaints to

include claims arising under federal law—minimizing the

significance of the court’s rulings on federal-officer removal

jurisdiction and making appellate review on that issue unlikely.

See Johnson v. Tyson Foods, Inc., 2022 WL 2161520 (W.D. Tenn.

June 15, 2022) (addressing federal claims); Reed v. Tyson Foods,

Inc., 2022 WL 2134410 (W.D. Tenn. June 14, 2022) (same). The

decisions on federal-officer removal in Johnson and Reed also

conflict in principle with the Sixth Circuit’s decision in Mays v.

City of Flint, Michigan, 871 F.3d 437 (6th Cir. 2017)—a conflict

best addressed in the first instance by the Sixth Circuit.

19

that nonbinding recommendations and guidance from

federal officials, combined with a “critical infrastructure” designation, establish the sort of “special

relationship” that Watson requires a private entity to

show to support removal under section 1442(a)(1). 551

U.S. at 157.

In the first such decision, Maglioli—which both the

Eighth and Fifth Circuits cited favorably in rejecting

Tyson’s arguments, Pet. App. 16–17; Glenn, 40 F.4th

at 235—the Third Circuit held that COVID-19

infection-control guidance, which the defendant

nursing homes referred to as “comprehensive

directives,” did not establish an “acting under”

relationship. 16 F.4th at 405. Maglioli pointed out

that those documents, like the documents on which

Tyson relies, “contain[ed] verbiage denoting guidance,

not control.” Id. Maglioli also held that the nursing

home industry’s federal designation as “critical

infrastructure,” like the meatpacking industry’s, did

not suffice to show the requisite subservient

relationship. The court explained that “doctors,

weather forecasters, clergy, farmers, bus drivers,

plumbers, dry cleaners, and many other workers” had

all been similarly designated, and that it was

implausible that all such workers had been

“deputize[d]” as federal agents. Id. at 406.

Since Maglioli was decided, three other courts of

appeals have reached the same conclusion, in opinions

cross-referencing each other and, notably, the opinion

in this case. See Martin v. Petersen Health Operations,

LLC, 37 F.4th 1210, 1212–13 (7th Cir. 2022); Mitchell

v. Advanced HCS, LLC, 28 F.4th 580, 589–91 (5th Cir.

2022) (citing Buljic approvingly); Saldana v.

Glenhaven Healthcare LLC, 27 F.4th 679 (9th Cir.

20

2022) (same).6 These courts’ holdings are in full

agreement with that of the Eighth Circuit in this case:

A defendant’s showing “that it operated as a private

entity subject to government regulations, and that

during the COVID-19 pandemic it received additional

regulations and recommendations from federal

agencies,” is not enough to satisfy section 1442(a)(1).

Saldana, 27 F.4th at 686. And when a federal agency

“set[s] forth aspirations and expectations, not

mandates,” it is not “directing” a private entity within

the meaning of section 1442(a)(1). Mitchell, 28 F.4th

at 590.

Although Tyson does not acknowledge these

decisions in the petition, Tyson conceded in the courts

of appeals that these cases were correctly decided and

“broke no new ground.” Appellants’ Response to Rule

28(j) Letter, Glenn v. Tyson, 5th Cir. No. 21-40622

(Mar. 23, 2022) (discussing Mitchell); see also

Appellants’ Response to Rule 28(j) Letter, Oct. 26,

2021 (discussing Maglioli); Appellants’ Reply Br.,

Glenn v. Tyson, 5th Cir. No, 21-40622 (same).7 Tyson’s

This Court denied the Saldana defendants’ petition for

certiorari, which was limited to their complete preemption theory

of jurisdiction and did not address the Ninth Circuit’s federalofficer removal holding. See Order, Glenhaven Healthcare LLC v.

Saldana, No. 22-192 (Nov. 21, 2022).

6

7 The nursing home cases, like the decisions in this case and

in Glenn, are also consistent with courts of appeals decisions

applying Watson in cases unrelated to the pandemic. See, e.g.,

Box v. PetroTel, Inc., 33 F.4th 195, 199 (5th Cir. 2022) (holding

private entity’s request for federal assistance in connection with

its otherwise private oil and gas operations was not a basis for

federal-officer removal); Fidelitad, 904 F.3d at 1101 n.3 (rejecting

drone manufacturer’s argument that federal-officer removal was

appropriate “because it was helping the government achieve

(Footnote continued)

21

argument below was just that the nursing home cases

are distinguishable on factual grounds. As explained

in the thorough analyses of the record undertaken by

the Eighth and Fifth Circuits, however, no relevant

factual distinction exists. And to the extent that Tyson

asserts that the Eighth and Fifth Circuits misapplied

to the particular facts of its cases what it concedes to

be the properly stated rule of law identified in

Maglioli, Saldana, Mitchell, and Martin, such a claim

of error is not a basis for review by this Court. See Sup.

Ct. R. 10.

II. The factbound nature of the decision below

makes it particularly unsuitable for review.

The court of appeals’ conclusion that “Tyson has

failed to show that it was performing a basic

governmental task or operating pursuant to a federal

directive in March and April of 2020,” Pet. App. 20,

was a factual one. The court of appeals examined each

piece of evidence presented by Tyson and found that

the evidence did not support Tyson’s assertions of

government control. Id. 14–19.

In its petition, Tyson ignores the factual analysis

undertaken below, repeatedly making assertions that

were addressed and rejected as meritless in the

Eighth Circuit’s opinion. For example, Tyson

continues to rely on a tweet by President Trump about

the DPA, Pet. 15, even though the Eighth Circuit

already explained that that tweet had nothing to do

with Tyson’s operations, as it was “clearly related to

the production and distribution of masks and

ventilators,” Pet. App. 18. Similarly, Tyson asserts

foreign policy objectives”); Mays, 871 F.3d at 447 (finding statute

not satisfied where defendant was “working alongside” a federal

agency, “not under it”).

22

without citation that it “prioritized … federal

commands over competing dictates from state and

local authorities,” Pet. 27, even though the court of

appeals concluded that no such “federal commands”

existed, Pet. App. 19. Tyson has at no point identified

evidence in the record that Tyson “prioritized” any

federal direction over a state or local one.

Tyson may believe that the Eighth Circuit (and the

Fifth Circuit) got the facts wrong. But even if that

were the case, it would not provide a reason for this

Court’s review. See Sup. Ct. R. 10. That Tyson’s

argument rests on factual assertions that the lower

courts found to be unsupported highlights that this

case does not raise an important legal question that

needs to be settled by the Court. Whether an entity

that “follow[s] federal directives during an emergency”

is “entitled to the protections of a federal forum,” Pet.

23, may be an interesting question, but it is not one

the Eighth Circuit found presented by this case or that

it purported to answer.

III. The opinion below does not contain the

“rules” Tyson ascribes to it.

Perhaps recognizing this Court’s hesitance to

grant review on factbound questions, Tyson suggests

that the Eighth Circuit made two broader holdings

about the availability of federal-officer removal. First,

it asserts that the Eighth Circuit created a “rule” that

holds that the federal-officer removal statute is only

available where a private entity is “enlisted” to

perform a task that “the federal government ‘typically’

performs itself,” as opposed to one that only arises

during an emergency. Pet. 27–31. Second, it suggests

that the court of appeals adopted a rule that

“informal” directives cannot provide the federal

23

control required by section 1442(a)(1). The opinion

contains neither rule, and there is no reason for the

Court to grant review to address either proposition.

A. Tyson’s argument about the word “typically”

cites language in the paragraph of the Eighth Circuit’s

opinion discussing the relevance of the “critical

infrastructure” designation that was afforded to

sixteen sectors of the economy, and concluding that

“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

federal officers.” Pet. App. 15–16. The court went on

to say:

[S]imilarly, 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. 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.

Id. at 16 (citing Jacks, 701 F.3d at 1230 (quoting

Watson, 551 U.S. at 152), and Maglioli, 16 F.4th at

406).

In context, the Eighth Circuit’s use of “typically”

does not mean “in normal times,” as Tyson suggests.

Rather, the Court was using the term in reference to

what constitutes a “basic governmental task,” as that

term is used in Watson, 551 U.S. at 153. Defending the

nation from a nuclear attack, investigating airplane

crashes, and negotiating the release of Americans held

abroad are all tasks “typically” performed by the

24

federal government in emergency circumstances,

although they are tasks that, fortunately, are not

necessary on a daily basis. Tyson’s suggestion that

this paragraph would bar someone from invoking the

federal-officer removal statute where they “assist[]

federal officers in pursuing a suspect in an

emergency,” Pet. 30, is an unreasonable reading of the

court’s opinion. The pursuit of suspects in emergencies

is a task “typically” performed by government actors.

Moreover, Tyson’s suggestion rests entirely on dicta

unnecessary to the court’s judgment and is thus not

an independent basis for review. Cf. Jennings v.

Stephens, 574 U.S. 271, 277 (2015) (“This Court …

does not review lower courts’ opinions, but their

judgments.”). To the extent that the paragraph

addressing Tyson’s “critical infrastructure” argument

reflects a rule, the rule is that work that the federal

government recognizes as important is not the same

as work that “helps officers fulfill … basic

governmental tasks.” Watson, 551 U.S. at 152. As

discussed above, pp. 18–21, supra, that rule has been

adopted by five courts of appeals.

B. Tyson repeatedly suggests that the Eighth

Circuit incorrectly required a “formal” direction to

satisfy the statute’s “acting under” element. See, e.g.,

Pet. 3, 4, 22, 27, 31, 32, 34, 36. But in response to

Tyson’s policy arguments below, the Eighth Circuit

made clear it was not adopting any such rule and that

Tyson’s fixation on formal versus informal directives

“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

… directive.

25

Pet. App. 19. The Eighth Circuit did not reject Tyson’s

reliance on, for example, tweets about respirator

manufacturing and generic statements thanking

workers in the food industry because the tweets and

statements were “informal”; it rejected reliance on

them because they did not direct Tyson (or anyone

else) to do anything. This case presents no reason for

the Court to address any distinction between “formal”

and “informal” directives.

IV. Alternative bases for affirmance recognized

by the district court counsel against review.

This case is not suitable for review for the

additional reason that, as the district court found,

even if Tyson had been “acting under” federal officer

direction when it failed to contain and made

misrepresentations about the outbreak in Waterloo, it

has not satisfied the two other requirements of the

federal-officer removal statute. See Pet. App. 59–62,

97–100. Although the Eighth Circuit did not reach

these elements in light of its holding regarding the

“acting under” requirement, each provides an

independent basis for affirmance. And together, they

make this case an especially unsuitable vehicle for

addressing the questions raised by the petition.

First, the acts complained of—Tyson’s failure to

take precautions to prevent the spread of COVID-19,

misrepresentations about infection control measures

in place, and active concealment of the presence of

COVID-19 cases in the Waterloo facility—are not

“connected or associated with an act pursuant to a

federal officer’s directions.” Latiolais, 951 F.3d at 296.

As the district court found, no federal government

communication required Tyson to remain open, much

less addressed what safety measures Tyson could or

26

could not employ or the statements it could make

about them. Pet. App. 60. The undisputed fact that

Tyson voluntarily closed its plants after the decedents

in this case died demonstrates that its failure to do so

earlier was not “an act pursuant to a federal officer’s

directions.” Id.

Second, Tyson has no colorable federal defense to

the state-law claims in this case. Below, Tyson

asserted that the DPA and the FMIA both preempted

the plaintiffs’ claims. As to the DPA, its immunity

provision, 50 U.S.C. § 4557, may be invoked only by a

person “compl[ying] with a rule, regulation, or order

issued” under the DPA. Tyson was not subject to any

DPA rule, regulation, or order—either at the time of

the events in this case or any time since. And even if

it were, section 4557 immunity extends only to claims

resulting from the prioritization of certain contracts

over others. See United States v. Vertac Chem. Corp.,

46 F.3d 803, 812 (8th Cir. 1995). It does not “allow[] a

government contractor to violate the laws with

impunity, so long as it is performing a rated contract.”

Id.; accord Hercules Inc. v. United States, 24 F.3d 188,

203 (Fed. Cir. 1994); E. Air Lines, Inc. v. McDonnell

Douglas Corp., 532 F.2d 957, 997 (5th Cir. 1976). No

such claims are at issue here.

As to the FMIA, that statute’s preemption clause

applies only to state laws that create “requirements

within the scope” of the FMIA “with respect to

premises, facilities and operations” of FMIA-regulated

establishments. 21 U.S.C. § 678. As this Court has

explained, that clause focuses on, “at bottom, the

slaughtering and processing of animals at a given

location,” Nat’l Meat Ass’n v. Harris, 565 U.S. 452, 463

(2012), and generally leaves “state laws of general

application,” including “workplace safety regulations,”

27

untouched, id. at 467 n.10. Iowa’s gross negligence

and fraudulent misrepresentation laws and the duties

they impose on employers with respect to worker

safety are just such laws of general application.

Because, on the face of these two statutes, neither

defense is even arguably applicable, Tyson cannot

meet the colorable federal defense requirement.

Therefore, it could not establish jurisdiction under

section 1442(a)(1) even if this Court were to give

credence to its implausible assertion that the

pandemic placed it into a subservient relationship

with the federal government and converted all its

operations into ones performed at the direction of a

federal officer.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

28

Respectfully submitted,

THOMAS P. FRERICHS

ADAM R. PULVER

FRERICHS LAW OFFICE, PC Counsel of Record

106 E. 4th St.

SCOTT L. NELSON

P.O. Box 328

ALLISON M. ZIEVE

Waterloo, IA 50704

PUBLIC CITIZEN

LITIGATION GROUP

MEL. C. ORCHARD, III

1600 20th Street NW

G. BRYAN ULMER, III

Washington, DC 20009

GABRIEL PHILLIPS

(202) 588-1000

THE SPENCE LAW

apulver@citizen.org

FIRM, LLC

15 S. Jackson Street

JOHN J. RAUSCH

P.O. Box 548

RAUSCH LAW FIRM, PLLC

Jackson, WY 83001

3909 University Ave.

P.O. Box 905

Waterloo, IA 50704

Attorneys for Respondents

November 2022