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Tyson Loses Again in Appeals Court Challenge of Covid Liability

July 7, 2022, 4:07 PM

A Trump administration executive order doesn’t protect Tyson Foods Inc. from workers’ Covid-19 death and injury liability lawsuits, the US Court of Appeals for the Fifth Circuit decided Thursday.

The Fifth Circuit 3-0 ruling is similar to a decision issued by the US Court of Appeals for the Eighth Circuit on Dec. 30 that also found Trump administration actions didn’t shield the poultry processor from two lawsuits involving workers in Iowa.

The decision could open the door for workers’ cases to be heard by Texas state courts where the lawsuits were filed before Tyson sought federal review.

The lawsuits against Tyson were brought by the survivors of three Tyson workers and 11 infected workers who survived bouts with Covid-19. The cases allege that as the coronavirus spread through Tyson meat processing plants in Center and Sherman, Texas, at the beginning of the pandemic, Tyson failed to take reasonable precautions to protect its workers from the contagion.

The primary issue before the Fifth Circuit judges was whether then-President Donald Trump’s April 28, 2020 executive order to the Department of Agriculture was, in fact, an order that required Tyson plants to stay open if they were following guidance from the federal Centers for Disease Control and Prevention and the Occupational Safety and Health Administration, arguably relieving the company of the health consequences of doing so.

The order said, “Under the delegation of authority provided in this order, the Secretary of Agriculture shall take all appropriate action under that section to ensure that meat and poultry processors continue operations consistent with the guidance for their operations jointly issued by the CDC and OSHA.”

‘Remain Operational’

Tyson’s attorney, Paul Clement, at the time of the hearing a partner at Kirkland & Ellis LLP in Washington, told the judges in a May 10 oral argument that while the president’s order was to the Agriculture Department and not Tyson, it carried the legal weight of an order to Tyson.

“They were exhorted to remain operational,” the one-time US Solicitor General said. Past court decisions have recognized that similar “exhortations” by federal officials were orders, he said.

Clement acknowledged to the judges that the Eighth Circuit ruled against Tyson, but said the specifics of that lawsuit were different from the Fifth Circuit because the Fifth cases involved claims against Tyson that took place after the executive order was issued, while the Eighth case—where Clement also represents the company—covered actions before the order was released.

Tyson has said it plans to seek US Supreme Court review of the Eighth Circuit ruling.

US Department of Justice attorney Lindsey Powell countered Clement’s interpretation of the order’s intent and weight in an amicus curiae presentation to the judges.

Tyson operated “with federal government encouragement and support, but there was no federal directive,” Powell said.

She pointed out that CDC and OSHA guidance is not binding for employers, and that the Trump administration instead of ordering Tyson plants to stay open, used the word “should.”

Attorney Andrew Gould, who represents the families of two workers who died, said Tyson is using the government’s wishes in 2020 as cover for a continuing to keep plants in operation.

“Tyson was never officially ordered to stay open,” said Gould, a partner at Arnold & Itkin LLP in Houston.

Hearing the case were judges Don Willett, Kurt Engelhardt, and Cory Wilson, all of whom were Trump nominees.

The cases are Glenn v. Tyson Foods, 5th Cir., No. 21-40622, 7/7/22 and Chavez v. Tyson Foods, 5th Cir., No. 21-11110, 7/7/22.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Genevieve Douglas at gdouglas@bloomberglaw.com