In April 2020, two plants operated by Tyson Foods in Texas experienced outbreaks of COVID-19. Eleven plant workers who contracted COVID and the survivors of three plant workers who died of COVID filed lawsuits in Texas state court, alleging that the outbreaks were the result of poor working conditions in the plants and Tyson’s negligent failure to take precautions to minimize the spread of COVID-19.
Tyson removed the two cases to federal court on the basis of the federal officer removal statute. Tyson argued that its operation of the plants during the pandemic constituted action under the direction of a federal officer as a result of a variety of statements by President Trump and others regarding the importance of workers in critical infrastructure and maintaining the food supply. In both cases, the district courts rejected Tyson’s arguments and remanded the cases to state court. Tyson then appealed to the U.S. Court of Appeals for the Fifth Circuit.
On appeal, Public Citizen filed an amicus brief on behalf of itself, the National Employment Law Project, and the Equal Justice Center in support of the plaintiffs. The brief explains that no action taken under the Critical Infrastructures Protection Act or Defense Production Act brought Tyson under the control of a federal officer, and that the Defense Production Act’s immunity provision does not apply. In an opinion issued in July 2022, the Fifth Circuit agreed, holding that Tyson “cannot transmogrify” the government’s “suggestion and concern into direction and control” as would be necessary to support federal officer removal.