The Biden administration and 19 states have told a U.S. appeals court that Tyson Foods Inc was not acting at the government’s direction when it kept meat-processing plants open amid the COVID-19 pandemic, and wrongful death lawsuits on behalf of four of its workers should be heard in state court.
The U.S. Department of Justice and a coalition of Democratic attorneys general in amicus briefs filed on Monday urged the 8th U.S. Circuit Court of Appeals to uphold a judge’s ruling that said Tyson could not remove the cases to federal court because it was ultimately performing a private function by keeping an Iowa plant open in the early months of the pandemic.
A law known as the federal officer removal statute allows state-law claims to be heard in federal court when the defendant “was acting under the direction of a federal officer” and has a colorable defense under federal law.
DOJ and the states in their briefs said the federal government never ordered Tyson to keep the plant open and did not offer any material assistance to continue its ordinary business functions of processing and distributing meat.
“Although the pandemic brought the importance of these functions into the public consciousness, federal officials’ acknowledgment of their importance and support for their continuance did not serve to federalize these fundamentally private actions,” DOJ lawyers wrote in their brief.
Arkansas-based Tyson and its lead lawyer, Paul Clement of Kirkland & Ellis, did not immediately respond to requests for comment.
Adam Pulver of Public Citizen Litigation Group, who represents the plaintiffs, said the brief from the federal government was particularly significant because of the claim that Tyson was acting under its direction.
The appeal involves two consolidated lawsuits filed last year in Iowa state court by the families of the four Tyson workers who claim the company’s failure to implement social distancing and refusal to allow sick workers to stay home caused their relatives to contract COVID-19.
Tyson in October removed the cases to federal court in Cedar Rapids, Iowa. The company said that federal officials including former President Donald Trump had made clear that the continued operation of meat-processing plants was a matter of national necessity, so Tyson was acting under the government’s direction by keeping its Waterloo, Iowa plant open.
U.S. District Judge Linda Reade in December granted the plaintiffs’ motion to remand the case to state court. She said Tyson was not acting under the government’s direction at least until Trump on April 28, 2020 issued an executive order directing meat plants to remain open, and all of the conduct at issue in the lawsuits took place before then.
DOJ and the states in their amicus briefs on Monday said Reade was correct, and the removal statute was only meant to apply when private companies perform public functions at the direction of the federal government.
The states said that if Tyson’s argument was correct, it could immunize millions of businesses in critical sectors from legal claims related to COVID-19, and could even apply beyond the pandemic to future natural disasters.
The states’ brief was spearheaded by the California attorney general’s office and joined by the AGs of New York, Illinois, Pennsylvania and Washington D.C., among others.
The case is Buljic v. Tyson Foods Inc, 8th U.S. Circuit Court of Appeals, Nos. 21-1010 & 21-1012.
For the plaintiffs: Adam Pulver of Public Citizen Litigation Group
For Tyson: Paul Clement of Kirkland & Ellis
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