United States Court of Appeals 

for the Fifth Circuit 

No. 21-40622 

Rolandette Glenn; Idell Bell; Kerry Cartwright; 

Tammy Fletcher; Laveka Jenkins; Kiesha Johnson; 

Ronald Johnson; Daisy Williams; Danica Wilson; John 

Wyatt; Crystal Wyatt; Clifford Bell, Individually and as 

Personal Representative of the Estate of Beverly Whitsey, 

Plaintiffs—Appellees, 

versus

Tyson Foods, Incorporated; 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 

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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 protect U.S. customs officials.1

 New England states were 

generally opposed to the war, and shipowners from the region took to suing 

federal agents charged with enforcing the trade embargo against England.2

Congress responded by giving customs officials the right to remove 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 removal 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). 

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remains the same: to give those who carry out federal policy a more favorable 

forum than they might find in state court.5

 

In this case, we must decide whether Tyson Foods, Inc. was “acting 

under” direction from the federal government when it chose to keep its 

poultry processing plants open during the early months of the COVID-19 

pandemic. Tyson argues that it was, and that the district courts erred in 

remanding these cases back to state court. But the record simply does not 

bear out Tyson’s theory. Tyson received, at most, strong encouragement 

from the federal government. But Tyson was never told that it must keep its 

facilities open. Try as it might, Tyson cannot transmogrify suggestion and 

concern into direction and control. We AFFIRM the district courts’ orders 

remanding these cases to state court. 

I

A

When the COVID-19 pandemic began, the federal government 

fretted that the nation’s food supply might be at risk. The same week that 

President Trump declared a national emergency, he and other federal 

officials held calls with state officials and business executives to exchange 

information and discuss strategies. Dozens of businesses participated in these 

calls, including representatives from Tyson, Whole Foods, Target, General 

Mills, Costco, and Walmart.6

 During these calls, the federal government 

exhorted companies designated as “critical infrastructure” to keep operating 

5 See Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 290 (5th Cir. 2020) (en 

banc) (“Congress authorized . . . federal officials . . . to seek a federal forum rather than 

face possibly prejudicial resolution of disputes in state courts.”). 

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. 

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even as many other companies sent their employees home.7 The federal 

government also issued guidance encouraging employees in critical 

infrastructure industries to keep working, and for everyone else to work from 

home if possible and to avoid discretionary travel. 

This federal guidance was not binding. But the State of Texas 

apparently agreed with the federal government’s preference that companies 

like Tyson should continue operating. With encouragement from Governor 

Abbott and federal officials, Tyson printed out “Essential Employee 

Verification” letters for its employees to show local law enforcement if 

stopped, demonstrating that they were allowed to go to work. 

Meat and poultry processing was not the only industry designated as 

“critical infrastructure.” Everything from banks and auto-repair shops to 

hotels and dentists received the same designation. But the federal 

government’s coordination with the meatpacking industry was especially 

close. Employees of the Food Safety and Inspection Service (FSIS), a 

subsidiary of the United States Department of Agriculture (USDA), have 

long been tasked with inspecting meatpacking operations. These inspections 

are designed to ensure compliance with myriad federal laws and regulations 

including the Federal Meat Inspection Act (FMIA)8

 and the Poultry 

Products Inspection Act (PPIA).9 FSIS inspections became more 

complicated during the pandemic because they had to be completed in 

person, often in close contact with Tyson employees. Tyson and the federal 

government negotiated a detailed set of protocols designed to allow 

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. 

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inspections to continue, while ensuring the safety of FSIS and Tyson 

employees. The federal government also promised that it would try to 

procure protective equipment (like face masks and gloves) for Tyson. 

President Trump and other federal officers issued public comments 

encouraging critical industries to keep operating and for their employees to 

go to work. The President tweeted that the “Defense Production Act is in 

full force, but [we] haven’t had to use it because no one has said NO!”10 Vice 

President Pence likewise encouraged food industry workers: “show up and 

do your job.”11 

The federal government’s most overt act to keep meat and poultry 

processing plants open was Executive Order 13917.12 That order delegated 

authority to the Secretary of Agriculture to “take all appropriate action” 

under Section 101 of the Defense Production Act (DPA) “to ensure that 

meat and poultry processors continue operations consistent with the 

guidance for their operations jointly issued by the CDC and OSHA.”13 The 

USDA used this delegated authority to issue two letters, one to state 

governments and one to businesses. The letter to businesses said that “meat 

and poultry processing plants” “should utilize” guidance from the CDC

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 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) (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.” 

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and OSHA. It also said that closed meat processing plants “should” submit 

documentation of their health and safety protocols and reopen “as soon as 

they are able after implementing the CDC/OSHA guidance for the 

protection of workers.” While this letter was nonbinding, it concluded by 

noting that “action under the Executive Order and the Defense Production 

Act is under consideration and will be taken if necessary.” Similarly, a 

question-and-answer page posted on the USDA’s website reiterated that the 

letter’s guidance was not mandatory, but that the agency was leaving the door 

open to further action under the DPA if it became necessary. Apparently, it 

never was. The USDA did not issue a DPA order to Tyson or any other 

meatpacking company. 

B

The plaintiffs in this case allege that they contracted COVID-19 

while working at two Tyson facilities in Texas during the first few months of 

2020. Some of them died as a result. They allege that Tyson failed to follow 

applicable COVID-19 guidance by directing employees to work in close 

quarters without proper protective equipment. They also allege that Tyson 

knew some of its employees were coming to work sick with COVID-19 but 

ignored the problem, and that Tyson implemented a “work while sick” 

policy to keep the plant open. For example, they allege that Tyson 

encouraged sick employees to come into work by offering a substantial cash 

bonus for three months of perfect attendance. 

The plaintiffs in each action filed suit in Texas state courts. Tyson 

removed both cases to federal district court: Glenn to the Eastern District of 

Texas, and Chavez to the Northern District of Texas. Both district courts 

granted the plaintiffs’ motions to remand. Tyson appealed only the district 

courts’ holdings that the federal officer removal statute was inapplicable, 

forfeiting federal question jurisdiction. We consolidated the cases on appeal. 

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II

Defendants invoking the federal officer removal statute must show 

that: (1) they are a “person” within the meaning of the statute; (2) they acted 

“pursuant to a federal officer’s directions”; (3) they assert a “colorable 

federal defense”; and (4) there is “‘a causal nexus’ between the defendant’s 

acts under color of federal office and the plaintiff’s claims.”14 The parties 

agree that Tyson is a person within the meaning of the statute but disagree 

about the other three elements. 

We start—and end—with the second element: whether Tyson was 

“acting under” a federal officer’s directions. While “[t]he words ‘acting 

under’ are broad,” they are “not limitless.”15 It is not enough for a private 

party to be “simply complying with the law.”16 A private party will only be 

“acting under” a federal official if their actions “involve an effort to assist, 

or to help carry out, the duties or tasks of the federal superior.”17 Such a 

relationship “typically involves ‘subjection, guidance, or control.’”18 

Tyson argues that it was “acting under” the directions of a federal 

superior because, from the earliest days of the pandemic, various federal 

officers directed it and other food suppliers to continue operations to avoid a 

nationwide food shortage. But the record does not support Tyson’s position. 

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)). 

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Tyson first relies on the federal government’s designation of the food 

industry as “critical infrastructure.” Early in the pandemic, even as the 

federal government was encouraging most people to work from home and 

avoid discretionary travel, it encouraged employees in “critical 

infrastructure industr[ies]” to keep working. This message was broadcast by 

various federal officials, including Vice President Pence and the Department 

of Agriculture. For example, Tyson points to a statement from the Vice 

President telling food industry workers that the nation needed them “to show 

up and do [their] job,” and promising that the government would work with 

their employers to keep workplaces as safe as possible.19

But the federal government’s guidance to “critical infrastructure” 

industries was nonbinding. State and local authorities remained the ultimate 

decisionmakers on public safety matters. The list of critical infrastructure 

industries was created by the Cybersecurity and Infrastructure Security 

Agency (CISA), part of the Department of Homeland Security. CISA was 

clear that it created its “list of ‘Essential Critical Infrastructure Workers’ to 

help State and local officials as they work to protect their communities, while 

ensuring continuity of functions critical to public health and safety, as well as 

economic and national security.” Guidance from the White House was to the 

same effect, instructing Americans to “[l]isten to and follow the directions 

of your state and local authorities.” 

Indeed, the food processing industry was just one of many industries 

designated as “critical.” That diverse list included “nursing homes, . . . 

doctors, weather forecasters, clergy, farmers, bus drivers, plumbers, dry 

19 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.

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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 federal government’s critical infrastructure 

designations amounted to strong advice to business and state and local 

governments that certain industries should keep operating in spite of 

COVID-19 risks. 

Tyson tries to differentiate itself from these other private-sector 

designations by arguing that its relationship with the federal government was 

special. While Tyson has long worked closely with on-site inspectors from 

the USDA’s Food Safety and Inspection Service, this cooperation grew 

more complex during the pandemic. Tyson and the federal government 

worked together to ensure that on-site inspections could continue while 

mitigating the danger to Tyson employees and FSIS inspectors. The 

government also suggested that it would try to help Tyson procure protective 

equipment. 

But this only shows that Tyson was subject to heavy regulation—not 

that it was an agent of the federal government. Being “subject to pervasive 

federal regulation alone is not sufficient to confer federal jurisdiction.”22

“And that is so even if the regulation is highly detailed and even if the private 

firm’s activities are highly supervised and 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 critical 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. 

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holding in Watson is instructive. In that case, the FTC had long conducted 

tests on the tar and nicotine content of cigarettes, but stopped for cost 

reasons.24 The tobacco manufacturer Philip Morris started running the tests 

themselves “according to [Federal Trade Commission (FTC)]

specifications and permitting the FTC to monitor the process closely.”25

Indeed, the FTC published the results of these tests in annual reports to 

Congress, just as it had when it ran the tests itself.26 Philip Morris argued that 

because it carried out a task previously carried out by the government, it was 

“acting under” a federal official.27 The Court disagreed. It distinguished 

prior cases by noting that in most of them, the defendant was “helping the 

Government to produce an item that it needs.”28 But Philip Morris had no 

contract with or payment from the federal government.29 And while Philip 

Morris argued in earnest that it was exercising delegated authority, it 

produced no concrete evidence of a delegation.30 “[N]either Congress nor 

federal agencies normally delegate legal authority to private entities without 

saying that they are doing so.”31 

If anything, Tyson has a much harder case to make than Philip Morris 

did. At least the actions that Philip Morris took had previously been carried 

out by the government. Not so with Tyson. Packaging and processing poultry 

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. 

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has always been a private task—not a governmental one. But in other 

respects, Tyson is similarly situated to Philip Morris. While both were 

subject to close regulation and supervision, they acted in their own interests 

for profit. Neither acted as government contractors nor in a principal/agent 

arrangement with the government.32 

While Tyson is right that a voluntary relationship isn’t incompatible 

with delegated federal authority, the cases it cites are inapposite because they 

all involve defendants fulfilling government contracts. In Isaacson v. Dow 

Chemical Co., the defendant was fulfilling a federal contract to produce 

“Agent Orange” for the military.33 In St. Charles Surgical Hospital LLC v. 

Louisiana Health Service & Indemnity Co., the defendant contracted to 

provide health care coverage to federal employees.34 And Betzner v. Boeing 

Co. involved perhaps the quintessential example of private parties carrying 

out federal tasks: the defendant contracted to manufacture heavy bomber 

aircraft pursuant to detailed military guidelines and under careful monitoring 

and control.35 Packaging poultry for private parties is far afield from 

assembling aircraft or manufacturing munitions for Uncle Sam. The problem 

is not that Tyson’s relationship with the federal government was voluntary. 

The problem is the absence of any evidence of delegated authority or a 

principal/agent relationship at all.36

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 any principal/agent arrangement” between Philip 

Morris and the government). 

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Tyson has one final argument: that various communications from 

federal officials made it clear that Tyson had to keep its plants open. But the 

record does not support Tyson’s claim. Tyson points to a long list of 

communications from the federal government including President Trump’s 

proclamation declaring a national emergency, a conference call held in early 

March between the President and dozens of companies, a presidential tweet, 

guidance from the CDC and OSHA, and the Vice President’s statement 

encouraging food industry employees to do their jobs. But none of these 

communications constituted an “order” or a “directive.” Like the 

designation of various industries as “critical infrastructure,” these 

communications merely encouraged Tyson to stay open. 

Tyson’s best piece of evidence of a federal directive was President 

Trump’s invocation of the DPA in Executive Order 13917. But Executive 

Order 13917 had no immediate legal effect. It merely delegated the 

President’s DPA authority to the Secretary of Agriculture. And the 

Secretary never saw fit to use that delegated authority. The USDA sent two 

letters, one to state and local governments and one to private companies, that 

“encouraged” meat and poultry plants to follow preexisting CDC and 

OSHA guidance. The USDA’s question and answers webpage only 

confirms that the letter was not an order. It stated that the Secretary would 

exercise delegated DPA authority in the future “if necessary,” which it 

never was. 

III 

From the earliest days of the pandemic all the way through the 

issuance of Executive Order 13917, the federal government’s actions 

followed the same playbook: encouragement to meat and poultry processers 

to continue operating, careful monitoring of the food supply, and support for 

state and local governments. Tyson was exhorted, but it was not directed. 

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Because Tyson has not shown that it was “acting under” a federal officer’s 

directions, we need not consider whether it meets the remaining elements of 

the federal officer removal statute. The district courts’ judgments are 

AFFIRMED. 

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