In a petition for writ of certiorari filed Friday with the high court, attorneys for Tyson argued the US Court of Appeals for the Eighth Circuit erred in denying Tyson’s claim.
In the petition and earlier appeals court motions, Tyson said that an April 2020 executive order to the Department of Agriculture essentially required Tyson poultry and meat plants to remain open even as Covid-19 infections grew in the towns where the plants were located. The executive order protected Tyson from worker liability lawsuits filed in state courts, the company said.
Attorneys representing families in the appeals courts countered that the executive order wasn’t directed at Tyson, and that Tyson had the power to close plants for health concerns.
The Eighth Circuit found in favor of the families in a Dec. 30 decision. The US Court of Appeals for the Fifth Circuit in a July 7 decision not yet appealed to the Supreme Court also ruled against Tyson.
Tyson’s attorney, former Solicitor General Paul Clement of Clement & Murphy PLLC in Alexandria, Va., told the Supreme Court in a June 7 notice that he intended to file the petition.
In the writ, attorneys for Tyson said, “The Eighth Circuit’s conclusion that Tyson was not ‘acting under’ federal officials in helping the federal government avert an impending national food shortage and severe supply chain disruption cannot be reconciled with decisions from this Court or from other lower courts.”
The writ asserted that rulings against the meatpacker would discourage cooperation between companies and the government.
“Allowing the Eighth Circuit’s decision to remain on the books will deny private parties like Tyson who assist the federal government in times of emergency their right to a federal forum in which to defend their actions, discouraging voluntary cooperation and hindering the federal government’s ability to respond to a future national crisis.”
The writ continued, “If private actors who voluntarily cooperate with the federal government during a national emergency are rewarded by losing their right to a federal forum in which to defend the actions they took at the federal government’s behest, the government will quickly find itself forced to compel cooperation even from private actors that should be its willing partners.
Adam Pulver, an attorney with the Public Citizen Litigation Group in Washington that co-represents employee families, brushed aside Tyson’s claims.
“Two courts of appeals have unanimously rejected Tyson’s arguments that it was actually doing the federal government’s bidding when it subjected workers to dangerous conditions and caused hundreds of deaths,” Pulver told Bloomberg Law in a written statement. “Those courts recognized that the story Tyson is trying to tell is utterly disconnected from the facts, and we anticipate the Supreme Court will also.”
The Supreme Court receives about 7,000 to 8,000 petitions for a writ of certiorari each term, but grants and hears oral argument in only about 80 cases, according to the court’s website.
The case is Tyson Foods Inc. v. Buljic, U.S., Docket Number Unavailable, Petition for cert filed 7/22/22.