8th Circ. leery of Tyson's bid to keep COVID claims in federal court

A Tyson Foods pork processing plant, temporarily closed due to an outbreak of the coronavirus disease (COVID-19), is seen in Waterloo, Iowa, U.S., April 29, 2020. REUTERS/Brenna Norman
  • Tyson appealing ruling that sent wrongful death claims to state court
  • Company says it operated under direction of the federal government
  • But a DOJ lawyer told the 8th Circuit Tyson misread federal law

(Reuters) - Judges on a U.S. appeals court panel sounded skeptical on Thursday of Tyson Foods Inc's claim that it was acting under the federal government's direction when it kept an Iowa processing plant open during the early weeks of the COVID-19 pandemic.

Tyson is appealing a federal judge's ruling that said the company was not acting under a government mandate, and so wrongful death claims by the families of four Tyson workers who died after contracting coronavirus should be heard in Iowa state court.

During oral arguments on Thursday, 8th U.S. Circuit Court of Appeals Judges Jane Kelly and Ralph Erickson seemed to agree, pressing Tyson's lawyer, former U.S. Solicitor General Paul Clement, now at Kirkland & Ellis, on what type of direction the company was taking from the government.

Register now for FREE unlimited access to Reuters.com

"You've used words like 'encouragement' and 'should stay open,'" Kelly said to Clement. "That doesn't sound like the same thing as being under the direction of a federal officer and assisting the government in doing something [for which] it would otherwise be responsible."

Clement told the three-judge panel that Tyson's relationship with the federal government fundamentally changed after a national emergency was declared in March 2020 and federal officials strongly encouraged meat processing plants to remain open.

"Others were being told to stay home and shut their doors," Clement said. "We were being told we have a special responsibility to maintain our operations."

The appeal involves two consolidated lawsuits filed last year by the families of the four Tyson workers, who claim the company’s failure to implement social distancing and refusal to keep sick workers home caused their relatives to contract COVID-19.

Tyson removed the cases to federal court. State courts and juries are typically seen as more favorable to plaintiffs.

Former President Donald Trump on April 28, 2020, issued an executive order directing meat plants to remain open, but all of the conduct at issue in the lawsuits took place earlier.

Tyson says that nevertheless, a law known as the federal officer removal statute that allows state-law claims to be heard in federal court when the defendant “was acting under the direction of a federal officer" applies to the cases.

U.S. District Judge Linda Reade in December disagreed and remanded the cases to state court.

The U.S. Department of Justice on Thursday backed the plaintiffs, appearing at the arguments to urge the 8th Circuit panel to uphold Reade's decision. The plaintiffs are represented by Adam Pulver of Public Citizen Litigation Group.

DOJ lawyer Lindsey Powell told the panel that no court has ever applied the removal statute based on the mere "encouragement to cooperate" by the government.

If Tyson is correct, Powell said, then any COVID-related lawsuit filed in state court by employees in any number of "essential" industries could be removed to federal court.

"We are a complex society and we rely on a great many things," Powell said. "That does not make the conduct federal and does not subject it to the type of [government] direction and control that is necessary in these cases."

Erickson seemed to agree. He told Clement that in prior cases in which the removal statute was applied, companies "were doing something the federal government would ordinarily do. And ordinarily the federal government does not produce food."

The panel included Circuit Judge L. Steven Grasz.

The cases are Buljic v. Tyson Foods and Fernandez v. Tyson Foods, 8th U.S. Circuit Court of Appeals, Nos. 21-1010 and 21-1012.

For plaintiffs: Adam Pulver of Public Citizen Litigation Group

For Tyson: Paul Clement of Kirkland & Ellis

Register now for FREE unlimited access to Reuters.com

Our Standards: The Thomson Reuters Trust Principles.

Thomson Reuters

Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.