40 F.4th 230
5th Cir.2022Background
- Early in the COVID-19 pandemic federal officials and President Trump encouraged companies in designated "critical infrastructure" sectors, including meat and poultry processing, to continue operating to protect the national food supply.
- USDA's Food Safety and Inspection Service (FSIS) continued in-person inspections; Tyson worked with FSIS on safety protocols and the USDA offered nonbinding assistance and guidance (including a letter urging plants to follow CDC/OSHA guidance).
- Executive Order 13917 delegated Defense Production Act (DPA) authority to the Secretary of Agriculture, but the Secretary did not issue any DPA orders compelling plants to remain open.
- Plaintiffs sued Tyson in Texas state courts alleging workplace COVID-19 exposure, infections, and deaths caused by Tyson's failure to follow safety guidance and policies that encouraged attendance (e.g., attendance bonuses).
- Tyson removed the cases to federal court under the federal officer removal statute, arguing it was "acting under" federal direction; district courts remanded, and Tyson appealed only the federal-officer removal issue.
- The Fifth Circuit affirmed remand, holding Tyson did not satisfy the statutory requirement of acting under a federal officer because federal communications were exhortatory and supervision/regulation alone did not create a delegated federal duty.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tyson was 'acting under' a federal officer for §1442 removal | Tyson was not acting under a federal officer; removal improper | Tyson was acting under federal direction to keep plants open and so may remove | Tyson was not 'acting under'; encouragement and guidance insufficient for §1442 removal |
| Whether CISA/critical-infrastructure designation deputized private firms | Designation is nonbinding guidance, not deputization | Designation and public statements effectively compelled continued operations | Designation is advisory; it does not convert private employers into federal agents |
| Whether EO 13917 / DPA created binding federal orders | EO delegation did not itself order plants to stay open and no DPA orders were issued | EO and USDA letters show federal mandate or imminent compulsion to keep plants open | EO delegated authority but produced no binding DPA orders; USDA communications were nonbinding |
| Whether close regulation and on-site FSIS inspections made Tyson an agent | Pervasive regulation and inspection do not create a principal-agent relationship | Close regulation, negotiated protocols, and USDA assistance made Tyson act to carry out federal duties | Pervasive regulation/coordination alone is insufficient; no contract, payment, or delegation establishing agency |
Key Cases Cited
- Watson v. Philip Morris Cos., 551 U.S. 142 (holding 'acting under' requires helping carry out federal duties; mere compliance with regulation insufficient)
- Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286 (5th Cir. 2020) (explaining federal officer removal purposes and requirements)
- Buljic v. Tyson Foods, Inc., 22 F.4th 730 (8th Cir. 2021) (holding close regulation did not satisfy §1442 'acting under' requirement)
- Isaacson v. Dow Chemical Co., 517 F.3d 129 (2d Cir. 2008) (private contractor performing government work under contract satisfied removal principles)
- St. Charles Surgical Hosp. LLC v. La. Health Serv. & Indem. Co., 935 F.3d 352 (5th Cir. 2019) (contract performance for federal government supports 'acting under')
- Betzner v. Boeing Co., 910 F.3d 1010 (7th Cir. 2018) (contracting to produce military equipment illustrates principal-agent/contract-based removal)
- Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387 (5th Cir. 1998) (discussing elements and standards for §1442 removal)
- Maglioli v. All. HC Holdings LLC, 16 F.4th 393 (3d Cir. 2021) (holding CISA designation alone does not satisfy 'acting under')