# United States Court of Appeals **for the Fifth Circuit**

No. 21-40622

Rolandette Glenn; Idell Bell; Kerry Cartwright; Tammy Fletcher; Laveka Je nkins; Kiesha Johnson; Ronald Johnson; Daisy Willi ams; Danica Wilson; John Wyatt; Crystal Wyatt; Clifford Bell, Individually and as Personal Representative of the Estate of Beverly Whitsey,
Plaintiffs—Appellees ,

versus
Tyson Foods, Incorporat ed; Jason Orsak; Erica Anthony; Maria Cruz,
Defendants—Appellants ,

consolidated with

_____________
No. 21-11110

_____________ Maria Yolanda Chavez, Individually and on behalf of Minor LC and Estate of Jose Angel Chavez; Angel Chavez; Rita Elaine Cowan, Individually and on behalf of the Estate of Thomas David Cowan,
Plaintiffs—Appellees , United States Court of Appeals Fifth Circuit 

### FILED July 7, 2022 Lyle W. Cayce Clerk Case: 21-40622 Document: 00516385029 Page: 1 Date Filed: 07/07/2022No. 21-40622 c/w No. 21-11110

2 versus
Tyson Foods, Incorporated, doing business as Tyson Foods; Tyson Fresh Meats, Incorporated,
Defendants—Appellants

.

Appeals from United States District Courts for the Eastern and Northern Districts of Texas USDC Nos. 20-CV-184, 21-CV-1184

Before Willett, Engelhardt, and Wilson, Circuit Judges

. Don R. Willett , Circuit Judge : Congress enacted the first “federal officer removal statute” during the War of 1812 to protec t U.S. customs officials. 1 New England states were generally opposed to the war, and shipow ners from the region took to suing federal agents charged with enforcing the trade embargo against England. 2 Congress responded by giving customs officials the right to remove statecourt actions brought against them to federal court. 3 Since that time Congress has given the right of removal to more and more federal officers. Today all federal officers as well as “any person acting under that officer” are eligible. 4 While the scope of federal officer r emoval has broadened, its purpose

1 See Elizabeth M. Johnson, Removal of Suits Against Federal Officers: Does the Malfeasant Mailman Merit a Federal Forum? , 88 Colum. L. Rev. 1098, 1099 (1988); see also Watson v. Philip Morris Cos. , 551 U.S. 142, 147–49 (2007) (discussing the history of the federal officer removal statute).

2 Watson , 551 U.S. at 147–49.

3 Id.

4 28 U.S.C. § 1442(a)(1). Case: 21-40622 Document: 00516385029 Page: 2 Date Filed: 07/07/2022No. 21-40622 c/w No. 21-11110

3 remains the same: to give those who ca rry out federal polic y a more favorable forum than they might find in state court. 5 In this case, we must decide whet her Tyson Foods, Inc. was “acting under” direction from the federal government when it chose to keep its poultry processing plants open during the early months of the COVID -19 pandemic. Tyson argues that it was, an d that the district courts erred in remanding these cases back to state court. But the record simply does not bear out Tyson’s theory. Tyson rece ived, at most, strong encouragement from the federal government. But Tyson was never told that it must keep its facilities open. Try as it might, Tyson cannot transmogrify suggestion and concern into direction and control. We AFFIRM the district courts’ orders remanding these cases to state court.

I
A When the COVID -19 pandemic began, the federal government fretted that the nation’s food supply might be at risk. The same week that President Trump declared a national emergency, he and other federal officials held calls with state officials and business executives to exchange information and discuss strategies. Dozens of businesses participated in these calls, including representatives from Tyson, Whole Foods, Target, General Mills, Costco, and Walmart. 6 During these calls, the federal government exhorted companies designated as “criti cal infrastructure” to keep operating

5 See Latiolais v. Huntington Ingalls, Inc. , 951 F.3d 286, 290 (5th Cir. 2020) (en banc) (“Congress authorized . . . federal official s . . . to seek a federal forum rather than face possibly prejudicial resolution of disputes in state courts.”).

6 Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press Briefing , The White House: Trump White House Archives (Mar. 15, 2020), https://bit.ly/3FesI8H. Case: 21-40622 Document: 00516385029 Page: 3 Date Filed: 07/07/2022No. 21-40622 c/w No. 21-11110

4 even as many other companie s sent their employees home. 7 The federal government also issued guidance en couraging employees in critical infrastructure industries to keep working, and for everyone else to work from home if possible and to avoid discretionary travel. This federal guidance was not binding. But the State of Texas apparently agreed with the federal go vernment’s preference that companies like Tyson should continue operating. With encouragement from Governor Abbott and federal officials, Tyson printed out “Essential Employee Verification” letters for its employees to show local law enforcement if stopped, demonstrating that they were allowed to go to work. Meat and poultry processing was not the only industry designated as “critical infrastructure.” Everything from banks and auto-repair shops to hotels and dentists received the same designation. But the federal government’s coordination with the mea tpacking industry was especially close. Employees of the Food Safe ty and Inspection Service ( FSIS ), a subsidiary of the United States Department of Agriculture ( USDA ), have long been tasked with inspecting mea tpacking operations. These inspections are designed to ensure compliance with myriad federal la ws and regulations including the Federal Meat Inspection Act ( FMIA ) 8 and the Poultry Products Inspection Act ( PPIA ). 9 FSIS inspections became more complicated during the pandemic beca use they had to be completed in person, often in close contact with Tyson employees. Tyson and the federal government negotiated a detailed se t of protocols designed to allow

7 Matt Noltemeyer, Trump Meets with Food Company Leaders , Food Bus. News (Mar. 16, 2020), https://bit.ly/3t2fiXQ.

8 21 U.S.C. § 603 et seq.

9 Id. § 451 et seq. Case: 21-40622 Document: 00516385029 Page: 4 Date Filed: 07/07/2022No. 21-40622 c/w No. 21-11110

5 inspections to continue, while ensuring the safety of FSIS and Tyson employees. The federal government al so promised that it would try to procure protective equipment (like face masks and gloves) for Tyson. President Trump and other federa l officers issued public comments encouraging critical industr ies to keep operating and for their employees to go to work. The President tweeted that the “Defense Production Act is in full force, but [we] haven’t had to us e it because no one has said NO!” 10 Vice President Pence likewise encouraged food industry workers: “show up and do your job.” 11 The federal government’s most over t act to keep meat and poultry processing plants open was Executive Order 13917. 12 That order delegated authority to the Secretary of Agriculture to “take all appropriate action” under Section 101 of the Defense Production Act ( DPA ) “to ensure that meat and poultry processors continue operations consistent with the guidance for their operatio ns jointly issued by the CDC and OSHA .” 13 The USDA used this delegated authority to issue two letters, one to state governments and one to businesses. The letter to businesses said that “meat and poultry processing plants” “s hould utilize” guidance from the CDC

10 See Doina Chiacu, Trump Administration Unclear over Emergency Production Measure to Combat Coronavirus , Reuters (Mar. 24, 2020), http://reut.rs/3rS3MN5.

11 Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press Briefing , The White House: Trump White House Archives (Apr. 7, 2020), https://bit.ly/3pcdiZP

.

12 Delegating Authority Under the Defense Prod uction Act With Respect to Food Supply Chain Resources During the National Emerge ncy Caused by the Outbreak of COVID-19 , 85 Fed. Reg. 26,313 (Apr. 28, 2020) (Executive Order 13917).

13 Id. at 26,313–14. “ CDC ” is short for the “Centers for Disease Control and Prevention.” “ OSHA ” is short for the “Occupational Safety and Health Administration.” Case: 21-40622 Document: 00516385029 Page: 5 Date Filed: 07/07/2022No. 21-40622 c/w No. 21-11110

6 and OSHA . It also said that closed meat pr ocessing plants “should” submit documentation of their health and safe ty protocols and reopen “as soon as they are able after implementing the CDC/OSHA guidance for the protection of workers.” While this le tter was nonbinding, it concluded by noting that “action under the Execut ive Order and the Defense Production Act is under consideration and will be taken if necessary.” Similarly, a question-and-answer pa ge posted on the USDA ’s website reiterated that the letter’s guidance was not mandatory, but that the agency was leaving the door open to further action under the DPA if it became necessary. Apparently, it never was. The USDA did not issue a DPA order to Tyson or any other meatpacking company.

B The plaintiffs in this case a llege that they contracted COVID -19 while working at two Tyson facilities in Texas during the first few months of 2020. Some of them died as a result. Th ey allege that Tyson failed to follow applicable COVID -19 guidance by directing em ployees to work in close quarters without proper protective equi pment. They also allege that Tyson knew some of its employees were coming to work sick with COVID -19 but ignored the problem, an d that Tyson implemente d a “work while sick” policy to keep the plant open. For example, they allege that Tyson encouraged sick employees to come into work by offering a substantial cash bonus for three months of perfect attendance. The plaintiffs in each action filed suit in Texas state courts. Tyson removed both cases to federal district court: Glenn to the Eastern District of Texas, and Chavez to the Northern District of Te xas. Both district courts granted the plaintiffs’ motions to rema nd. Tyson appealed only the district courts’ holdings that the federal officer removal statute was inapplicable, forfeiting federal question jurisdiction. We consolidated the cases on appeal. Case: 21-40622 Document: 00516385029 Page: 6 Date Filed: 07/07/2022No. 21-40622 c/w No. 21-11110

7 II Defendants invoking the federal officer removal statute must show that: (1) they are a “person” within the meaning of the statute; (2) they acted “pursuant to a federal officer’s directio ns”; (3) they assert a “colorable federal defense”; and (4) there is “‘a causal nexus’ between the defendant’s acts under color of federal office and the plaintiff’s claims.” 14 The parties agree that Tyson is a person within th e meaning of the statute but disagree about the other three elements.

We start—and end—with the seco nd element: whether Tyson was “acting under” a federal officer’s directions. While “[t]he words ‘acting under’ are broad,” they are “not limitless.” 15 It is not enou gh for a private party to be “simply co mplying with the law.” 16 A private party will only be “acting under” a federal official if thei r actions “involve an effort to assist, or to help carry out, the duties or tasks of the federal superior.” 17 Such a relationship “typically involves ‘subjection, guidance, or control.’” 18 Tyson argues that it was “acting under” the directions of a federal superior because, from the earliest days of the pandemic, various federal officers directed it and other food supplie rs to continue operations to avoid a nationwide food shortage. But the record does not support Tyson’s position.

14 Latiolais , 951 F.3d at 291 (quoting Winters v. Diamond Shamrock Chem. Co. , 149 F.3d 387, 396–400 (5th Cir. 1998)).

15 Watson , 551 U.S. at 147.

16 Id. at 152.

17 Id. (emphasis omitted).

18 Id. at 151 (quoting Webster’s New Int’l Dictionary 2765 (2d ed. 1953)). Case: 21-40622 Document: 00516385029 Page: 7 Date Filed: 07/07/2022No. 21-40622 c/w No. 21-11110

8 Tyson first relies on the federal government’s designation of the food industry as “critical infrastructure.” Early in the pandemic, even as the federal government was encouraging m ost people to work from home and avoid discretionary travel, it en couraged employees in “critical infrastructure industr[ies]” to keep working. This message was broadcast by various federal officials, including Vi ce President Pence and the Department of Agriculture. For example, Tyson po ints to a statement from the Vice President telling food industry workers th at the nation needed them “to show up and do [their] job,” and promising th at the government would work with their employers to keep work places as safe as possible. 19 But the federal government’s guidan ce to “critical infrastructure” industries was nonbinding. State and loca l authorities remained the ultimate decisionmakers on public safety matte rs. The list of critical infrastructure industries was created by the Cybersecurity and Infrastructure Security Agency ( CISA ), part of the Departmen t of Homeland Security. CISA was clear that it created its “list of ‘Essen tial 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.” Guid ance from the White House was to the same effect, instructing A mericans to “[l]isten to and follow the directions of your state and lo cal authorities.” Indeed, the food processing industry was just one of many industries designated as “critical.” That dive rse list included “nursing homes, . . . doctors, weather forecasters, clergy, farmers, bus drivers, plumbers, dry

19 Remarks by President Trump, Vice Presiden t Pence, and Members of the Coronavirus Task Force in Press Briefing , The White House: Trump White House Archives (Apr. 7, 2020), https://bit.ly/3pcdiZP

. Case: 21-40622 Document: 00516385029 Page: 8 Date Filed: 07/07/2022No. 21-40622 c/w No. 21-11110

9 cleaners, and many other workers.” 20 Surely, “Congress did not deputize all of these private-sector workers as federal officers.” 21 Far from deputizing huge swaths of the economy, the federa l government’s critical infrastructure designations amounted to strong advi ce to business and state and local governments that certain industries should keep operating in spite of COVID-19 risks. Tyson tries to differentiate itself from these other private-sector designations by arguing that its relati onship with the federal government was special. While Tyson has lo ng worked closely with on-site inspectors from the USDA ’s Food Safety and Inspection Service, this cooperation grew more complex during the pandemic. Tyson and the fe deral government worked together to ensure that on-s ite inspections could continue while mitigating the danger to Tyson employees and FSIS inspectors. The government also suggested that it would try to help Tyson procure protective equipment. But this only shows that Tyson was subject to heavy regulation—not that it was an agent of the federal go vernment. Being “subject to pervasive federal regulation alone is not suffici ent to confer federal jurisdiction.” 22 “And that is so even if the regulation is highly detailed and even if the private firm’s activities are highly supervised and monitored.” 23 The Court’s

20 Maglioli v. All. HC Holdings LLC , 16 F.4th 393, 406 (3d Cir. 2021) (holding that CISA ’s designation of nursing homes as critic al infrastructure did meet § 1442(a)(1)’s “acting under” requirement); Martin v. Petersen Health Operations, LLC , No. 21-2959, 2022 WL 2154870, at *1 (7th Cir. June 15, 2022) (same).

21 Maglioli , 16 F.4th at 406.

22 Buljic v. Tyson Foods, Inc. , 22 F.4th 730, 739 (8th Cir. 2021) (holding that Tyson Foods could not use § 1442(a)(2) to remove a suit against it to federal court).

23 Watson , 551 U.S. at 153. Case: 21-40622 Document: 00516385029 Page: 9 Date Filed: 07/07/2022No. 21-40622 c/w No. 21-11110

10 holding in Watson is instructive. In that case, the FTC had long conducted tests on the tar and nicotine conten t of cigarettes, but stopped for cost

reasons. 24 The tobacco manufacturer Philip Morris started running the tests themselves “according to [Federal Trade Commission ( FTC)] specifications and permitting the FTC to monitor the process closely.” 25 Indeed, the FTC published the results of these tests in annual reports to Congress, just as it had when it ran the tests itself. 26 Philip Morris argued that because it carried out a task previously carried out by the government, it was “acting under” a federal official. 27 The Court disagreed. It distinguished prior cases by noting that in most of them, the defendant was “helping the Government to produce an item that it needs.” 28 But Philip Morris had no contract with or payment from the federal government. 29 And while Philip Morris argued in earnest that it was exercising delegate d authority, it produced no concrete evidence of a delegation. 30 “[N]either Congress nor federal agencies normally delegate lega l authority to private entities without saying that they are doing so.” 31 If anything, Tyson has a much harder case to make than Philip Morris did. At least the actions that Philip Mo rris took had previo usly been carried out by the government. Not so with Ty son. Packaging and processing poultry

24 Id. at 154.

25 Id.

26 Id. at 154–56.

27 See id.

28 Id. at 153.

29 Id.

30 See id. at 156–57.

31 Id. at 157. Case: 21-40622 Document: 00516385029 Page: 10 Date Filed: 07/07/2022No. 21-40622 c/w No. 21-11110

11 has always been a private task—not a governmental one. But in other respects, Tyson is similarly situated to Philip Morris. While both were subject to close regulation and supervis ion, they acted in their own interests for profit. Neither acted as government contractors nor in a principal/agent arrangement with the government. 32 While Tyson is right that a voluntar y relationship isn’t incompatible with delegated federal authority, the case s it cites are inapposite because they all involve defendants fulfillin g government contracts. In Isaacson v. Dow Chemical Co. , the defendant was fulfilling a fe deral contract to produce “Agent Orange” for the military. 33 In St. Charles Surgical Hospital LLC v. Louisiana Health Service & Indemnity Co. , the defendant contracted to provide health care covera ge to federal employees. 34 And Betzner v. Boeing Co. involved perhaps the quintessential example of private parties carrying out federal tasks: the defendant cont racted to manufact ure heavy bomber aircraft pursuant to detailed military gu idelines and under careful monitoring and control. 35 Packaging poultry for private parties is far afield from assembling aircraft or manufacturing munitions for Uncle Sam. The problem is not that Tyson’s relationship with the federal government was voluntary. The problem is the absence of any ev idence of delegated authority or a principal/agent relationship at all. 36

32 See id. at 156.

33 517 F.3d 129, 138 (2d Cir. 2008).

34 935 F.3d 352, 356 (5th Cir. 2019).

35 910 F.3d 1010, 1015 (7th Cir. 2018).

36 See Watson , 551 U.S. at 156 (noting the absence of “any contract, any payment, any employer/employee relationship, or an y principal/agent arrangement” between Philip Morris and the government). Case: 21-40622 Document: 00516385029 Page: 11 Date Filed: 07/07/2022No. 21-40622 c/w No. 21-11110

12 Tyson has one final argument: th at various communications from federal officials made it clear that Tyson had to keep its plants open. But the record does not support Tyson’s clai m. Tyson points to a long list of communications from the federal gove rnment including President Trump’s proclamation declaring a national emergency, a conference call held in early March between the President and dozens of companies, a presidential tweet, guidance from the CDC and OSHA , and the Vice President’s statement encouraging food industry employees to do their jobs. But none of these communications constituted an “ord er” or a “directive.” Like the designation of various industries as “critical infrastructure,” these communications merely encourag ed Tyson to stay open. Tyson’s best piece of evidence of a federal directive was President Trump’s invocation of the DPA in Executive Order 13917. But Executive Order 13917 had no immediate legal effect. It merely delegated the President’s DPA authority to the Secretar y of Agriculture. And the Secretary never saw fit to use that delegated authority. The USDA sent two letters, one to state and local governments and one to private companies, that “encouraged” meat and poultry plants to follow preexisting CDC and OSHA guidance. The USDA’ s question and answers webpage only confirms that the letter was not an orde r. It stated that the Secretary would exercise delegated DPA authority in the future “if necessary,” which it

never was.
III From the earliest days of the pandemic all the way through the issuance of Executive Order 13917, the federal government’s actions followed the same playbook: encourag ement to meat and poultry processers to continue operating, careful monito ring of the food supply, and support for state and local governments. Tyson was exhorted, but it was not directed. Case: 21-40622 Document: 00516385029 Page: 12 Date Filed: 07/07/2022No. 21-40622 c/w No. 21-11110

13 Because Tyson has not shown that it was “acting under” a federal officer’s directions, we need not consider wh ether it meets the remaining elements of the federal officer removal statute. The district courts’ judgments are AFFIRMED

. Case: 21-40622 Document: 00516385029 Page: 13 Date Filed: 07/07/2022