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Tyson’s Trump-Made-Us-Do-It Claim Set for Eighth Circuit Test

May 25, 2021, 9:30 AM

In its battle to keep a set of Covid-19 worker death cases out of Iowa state court, Tyson Foods Inc. is pinning its hopes on the argument it stayed open during the peak of the pandemic pursuant to President Donald Trump’s executive order.

The biggest U.S. meat processor will need to convince the U.S. Court of Appeals for the Eighth Circuit that statements made by Trump and those in his administration support the company’s claim it acted under the direction of a federal officer, and that the suits should stay in federal court. Leading its fight is former U.S. Solicitor General Paul Clement.

But the Biden Justice Department disagrees with Tyson’s position, as do 18 states’ attorneys general, and lawyers for the suing families. So too did an Iowa federal court judge. Oral argument hasn’t yet been scheduled by the appellate court.

A win would allow the company to avoid having to account for the deaths before a Waterloo, Iowa, jury.

“The federal jury selection process tends to result in jurors more favorable to corporations, who are not as likely to succumb to their own emotions,” said Tashwanda Pinchback Dixon, a labor and employment litigator and partner in the Atlanta office of Balch & Bingham LLP.

An Eighth Circuit loss would still allow the company to raise federal defenses in state court, but a state jury would be far friendlier to the plaintiffs, said James Sullivan, a former Occupational Safety and Health Review Commission chairman who now co-leads the OSHA-Workplace Safety Practice Group at Cozen O’Connor P.C.

“You’re not going to get the same kind of results for your client, people don’t want to say it but we all know it’s true,” Sullivan said.

Bloomberg Law research found at least 13 wrongful death or gross negligence cases alleging that Tyson or its subsidiaries allowed Covid-19 to spread throughout plants, causing worker deaths. Most are caught in litigation limbo between state and federal courts.

A Contested Removal

Springdale, Ark.-based Tyson is invoking the Federal Officer Removal Statute, which allows suits to be shifted to federal court if a U.S. officer or agency is involved, the plaintiffs’ claims are related to that involvement, and federal defenses can be raised.

A main question for the appellate court will be whether Trump had the authority to make meatpackers into “private actors who counted as government actors and acquired government actor immunity” because the plants were performing federal functions, University of Southern California law professor Greg Keating said.

“And, if the administration had the authority, did they exercise that authority properly?” Keating added.

Conversely, if a judge decides that Tyson was a federal actor or acted under the direction of a federal officer in this context, the company could open itself up to a host of civil rights claims from workers who were infected with Covid-19, says Ira Nathenson, a law professor at St. Thomas University School of Law in Miami Gardens, Fla.

“It seems to me they’re standing on the head of a pin,” Nathenson said.

The matter now before the St. Louis-based Eighth Circuit began with the filing of two lawsuits against Tyson last year by the families of four plant workers who died of Covid-19 at the Black Hawk County District Court in Waterloo.

The families say Tyson failed to provide employees Isidro Fernandez, Sedika Buljic, Reberiano Garcia, and Jose Luis Ayala Jr., with appropriate personal protective equipment, and failed to implement sufficient social distancing or safety measures to protect its workers from an outbreak, resulting in their deaths.

The company and its executives are accused of fraudulent misrepresentation, gross negligence, and incorrigible, willful, and wanton disregard for worker safety, as well as requiring employees to work long hours in cramped conditions, despite the uncontrolled Covid-19 outbreak.

“The question of liability will be resolved in due course,” Tyson said in its principal appellate brief.

After the company removed the cases to Iowa federal court, the families convinced U.S. District Judge Linda Reade to remand them to Waterloo in January, setting the stage for the appeal.

Federal Directive Disputed

Tyson claims that since Trump’s April 2020 meatpacking executive order and communications from the Secretary of Agriculture designating the plants as critical infrastructure, the company was acting under the U.S. government’s direction.

The Biden Justice Department disputes that premise in a friend-of-the-court brief, asserting “Tyson is not entitled to a federal forum because it was not performing a federal function under the direction of a federal officer during the relevant period, and federal law provides no defense to plaintiffs’ claims.”

A ruling for Tyson would allow removal of state-law claims by a broad array of private companies without “genuine federal direction,” the DOJ said. Attorneys general from 18 states and the District of Columbia echoed that argument in their own amicus brief.

If the court invalidates defenses Tyson raised as part of its federal removal bid, the company would lose potential immunity shields against the merits of the complaint, Nathenson said. But it wouldn’t necessarily spell harm to other companies facing Covid-19 negligence and wrongful death claims.

If all of the plaintiffs come from different states than all the defendants, a company could invoke federal diversity jurisdiction to remove a case from state court, he said. U.S. courts will host such cases, provided those conditions are met and the matter at issue is worth $75,000 or more.

Federal v. State

A remand decision could have far-reaching implications on other wrongful death cases relating to critical infrastructure litigated in state courts, Cozen’s Sullivan said “If there are different judges in different states dealing with a federal question and they are reaching different conclusions, it will leave many cases to go up to the state supreme courts or possibly the U.S. Supreme Court.”

Adam Zimmerman, a professor at the Loyola Marymount University Law School in Los Angeles, said Tyson’s federal officer argument may be limited by the Supreme Court’s 2008 Watson v. Philip Morris decision.

The high court held that Philip Morris, sued for its cigarette marketing, couldn’t shift the case to a U.S. court under the Federal Office Removal Statute. The company had to assert more than compliance with Federal Trade Commission directives to prove it was “acting under” the direction of a federal officer.

“That’s because these types of federal defenses are routinely heard in state courts, and a different rule would dramatically expand the kinds of cases federal courts hear,” Zimmerman said in an email.

An adverse ruling from the Eighth Circuit could diminish the company’s federal officer defense, said Balch’s Dixon.

“In a way, that may be the Eighth Circuit’s way of giving it’s opinion of how successful the company may be on that claim,” she said. “If it’s about interpreting federal law, federal courts tend to want to keep it in federal court.”

‘A Massive Usurpation’

Tyson’s removal argument calls for “a massive usurpation of state sovereignty, as state governments have the primary decision-making role in the pandemic,” said the plaintiffs’ lawyer, Adam Pulver, an attorney at Public Citizen Litigation Group.

“The last administration has stated the federal government is in a supporting role here and Tyson’s argument is inconsistent with federal officer removal,” he said. The company is relying on an argument that the federal government forced Tyson to remain open, “which is untrue.”

Responding to the Justice Department, Tyson said in a May 10 brief that the Biden Administration’s view “may not be an accurate proxy for the view of federal officials who actually issued the directives.”

In a footnote, it added, “the United States’ filing of an amicus brief to try to reserve federal-officer removal for only full-time federal officers or formalized ‘deputies’ will hardly serve the federal government’s long-term interests in the next crisis.”

Lindsey Powell, a Justice Department attorney representing the U.S., declined to comment on that Tyson filing.

Tyson spokesperson Gary Mickelson said the company would “rather not make additional comment outside of the reply brief.”

Clement didn’t respond to voicemail and email requests for comment. He’s a partner in the Washington office of Kirkland & Ellis LLP.


There are “immense policy implications to the resolution of this case,” Cozen’s Sullivan said.

“The whole idea of giving the federal government authority over emergencies, and for the federal government to ask a company to continue to operate, and to not indemnify them from tort liability—I don’t think we really want to go there in the next critical emergency,” he said. “Next time we will have in-house lawyers telling CEOs of these companies ‘the last time we followed that order we got burned.’”

The case is Buljic v. Tyson Foods, Inc., 8th Cir., No. 21-01010, 5/10/21.

To contact the reporter on this story: Fatima Hussein in Washington at

To contact the editors responsible for this story: Andrew Harris at; Jay-Anne B. Casuga at