IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF IOWA
`EASTERN DIVISION
`
`
`
`
`HUS HARI BULJIC, Individually and as
`Administrator of the Estate of Sedika
`Buljic, HONARIO GARCIA, Individually
`and as Administrator of the Estate of
`Reberiano Leno Garcia, and ARTURO
`DE JESUS HERNANDEZ and MIGUEL
`ANGEL HERNANDEZ as Co-
`Administrators of the Estate of Jose Luis
`Ayala, Jr.,
`
`
`Plaintiffs,
`
`vs.
`
`TYSON FOODS, INC., TYSON FRESH
`MEATS, INC., JOHN H. TYSON,
`NOEL W. WHITE, DEAN BANKS,
`STEPHEN R. STOUFFER, TOM
`BROWER, TOM HART, CODY
`BRUSTKERN, BRET TAPKEN, JOHN
`CASEY, and JAMES HOOK,
`
`Defendants.
`
`No. 20-CV-2055-LRR
`
`
`ORDER
`
`___________________________
`
`
`TABLE OF CONTENTS
`
`
`
`I.
`
`II.
`
`
`
`
`
`INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
`
`BACKGROUND OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
`
`A.
`B.
`C.
`
`General Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
`Causes of Action in the Petition . . . . . . . . . . . . . . . . . . . . . . . . . . .3
`Factual Allegations in the Petition . . . . . . . . . . . . . . . . . . . . . . . . .8
`
`III. NOTICE OF REMOVAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
`
`IV. MOTION TO REMAND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
`
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`

`

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`
`
`
`
`A.
`B.
`
`
`
`C.
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`
`
`
`
`
`Parties’ Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
`Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
`1.
`Federal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
`2.
`Removal to Federal Court . . . . . . . . . . . . . . . . . . . . . . . . . .20
`3.
`Removal Based on Federal Officer Statute . . . . . . . . . . . . . . .21
`Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
`1.
`Federal Officer Removal . . . . . . . . . . . . . . . . . . . . . . . . . . .25
`
`a.
`Acted under the direction of a federal officer . . . . . . . . .25
`
`b.
`Causal connection . . . . . . . . . . . . . . . . . . . . . . . . . . 26
`
`c.
`Colorable federal defense . . . . . . . . . . . . . . . . . . . . . .27
`
`d.
`Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
`2.
`Removal Based on a Federal Question . . . . . . . . . . . . . . . . . .29
`3.
`Attorney Fees and Costs . . . . . . . . . . . . . . . . . . . . . . . . . . .30
`
`V.
`
`CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
`
`
`
`I. INTRODUCTION
`
`
`
`The matter before the court is Plaintiffs Hus Hari Buljic’s, Honario Garcia’s,
`
`Arturo de Jesus Hernandez’s and Miguel Angel Hernandez’s (collectively, “Plaintiffs”)
`
`Motion to Remand (“Motion”) (docket no. 15).
`
`II. BACKGROUND OF THE CASE
`
`A. General Procedural History
`
`
`
`On June 25, 2020, Plaintiffs filed a “Petition at Law and Demand for Jury Trial”
`
`(“Petition”) (docket no. 3) in the Iowa District Court for Black Hawk County. On July
`
`27, 2020, Defendants Tyson Foods, Inc. and Tyson Fresh Meats, Inc. (collectively,
`“Tyson”) filed a Notice of Removal (docket no. 1), bringing the case before this court. 1
`
`
`1 It is “the settled rule that removal under 28 U.S.C. § 1442 can be effected by
`
`any defendant in an action, with or without the consent of co-defendants.” Alsup v. 3-
`Day Blinds, Inc., 435 F.Supp.2d 838, 842 (S.D. Ill. 2006); see also Akin v. Ashland
`Chemical Co., 156 F.3d 1030, 1034 (10th Cir. 1998) (providing that 28 U.S.C.
`§ 1442(a)(1) provides a statutory exception that “allows a federal officer [or any person
`acting under that officer] independently to remove a case to federal court even though
`that officer is only one of several named defendants”); Ely Valley Mines, Inc. v. Hartford
`Acc. & Indem. Co., 644 F.2d 1310, 1315 (9th Cir. 1981) (finding that § 1442 “represents
`an exception to the general rule . . . that all defendants must join in the removal petiton”);
`2
`
`
`
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`On August 26, 2020, Plaintiffs filed the Motion. On September 9, 2020, Tyson filed a
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`Resistance (docket nos. 16-17). 2 On September 16, 2020, Plaintiffs filed a Reply Brief
`
`(docket no. 18).
`
`
`
`On November 6, 2020, Plaintiffs filed a notice of voluntary dismissal of
`
`Defendants Mary A. Oleksiuk, Elizabeth Croston, Hamdija Beganovic, James Cook,
`
`Ramiz Muheljic, Gustavo Cabarea, Pam Pisng, Alex Buff, Walter Cifuentes, Muwi
`
`Hlawnceu, Mark Smith and John/Jane Does 1-10. See docket no. 34. On November 18,
`
`2020, Plaintiffs filed the First Amended Complaint (docket no. 40). Defendants John
`
`Casey and Bret Tapken were added in the First Amended Complaint. On December 9,
`
`2020, Plaintiffs filed the Second Amended Complaint (docket no. 46). Defendant James
`
`Hook was added in the Second Amended Complaint.
`
`B. Causes of Action Alleged in the Petition
`
`
`
`Even though Plaintiffs have filed a Second Amended Complaint in this case, for
`
`purposes of the Motion, the court considers the complaint, or in this instance, the Petition
`
`that existed at the time that the Notice of Removal was filed. See Scarlott v. Nissan North
`
`America, Inc., 771 F.3d 883, 888 n.2 (5th Cir. 2014) (citing Boelens v. Redman Homes,
`
`Inc., 759 F.2d 504, 507 (5th Cir. 1985); see also Harper v. AutoAlliance Intern., Inc.,
`
`392 F.3d 195, 210 (6th Cir. 2004) (“The existence of subject matter jurisdiction is
`
`determined by examining the complaint as it existed at the time of removal”); United
`
`
`Citrano v. John Crane-Houdaille, Inc., 1 F.Supp.3d 459, 465 (D. Md. 2014) (“Unlike
`removal under § 1441, under § 1442(a) the other defendants need not join in or consent
`for removal to be proper.”). Here, Tyson is removing this case under 28 U.S.C.
`§ 1442(a). See Notice of Removal at 1. Accordingly, this action may be removed without
`consent from the other Defendants.
`
`2 In its initial Resistance (docket no. 16), Tyson was unable to attach its Exhibits.
`
`On the same date that the Resistance was filed, Tyson filed a “Notice of Errata” (docket
`no. 17), which included the Resistance (docket no. 16) and all pertinent exhibits. See
`docket no. 17. For purposes of this Order, any reference to the Resistance will be to
`docket no. 16.
`
`
`
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`3
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`

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`Farm Bureau Mut. Ins. Co., Inc. v. Metropolitan Human Relations Commission, 24 F.3d
`
`1008, 1014 (7th Cir. 1994) (“It is a fundamental principle of law that whether subject
`
`matter jurisdiction exists is a question answered by looking to the complaint as it existed
`
`at the time the petition for removal was filed”) (quotation omitted); Salton v. Polyock,
`
`764 F.Supp.2d 1033, 1035 (N.D. Iowa 2011) (“[A] fundamental principle of removal
`
`jurisdiction is that whether subject matter jurisdiction exists is a question answered by
`
`looking to the complaint as it existed at the time the petition for removal was filed”);
`
`Virginia Gay Hospital, Inc. v. Amerigroup Iowa, Inc., No. C18-112-LTS, 2019 WL
`
`5483827, at *2 (N.D. Iowa Feb. 15, 2019) (same).
`
`
`
`In the first cause of action in the Petition Plaintiffs allege fraudulent
`
`misrepresentation and vicarious liability and seek punitive damages against Tyson. See
`
`Petition ¶¶ 99-113. In the second cause of action, Plaintiffs allege gross negligence and
`
`seek punitive damages against Defendants John H. Tyson, Noel W. White, Dean Banks,
`
`Stephen R. Stouffer and Tom Brower (collectively, “Executive Defendants”). See id.
`
`¶¶ 114-129. In the third cause of action, Plaintiffs allege gross negligence and fraudulent
`
`misrepresentation and seek punitive damages against Defendants Tom Hart, James Hook,
`Bret Tapken, Cody Brustkern and John Casey (collectively, “Supervisory Defendants”). 3
`
`Id. ¶¶ 130-151.
`
`
`
`Specifically, Plaintiffs allege that Tyson “made numerous false representations”
`
`to Plaintiffs’ decedents at the Waterloo facility and “falsely represented” that:
`
`(1) COVID-19 had not been detected at the facility; (2) COVID-19 was not spreading
`
`through the facility; (3) worker absenteeism was not related to COVID-19; (4) sick
`
`workers were not permitted to enter the facility; (5) workers from other Tyson facilities
`
`
`3 The Defendants listed as Supervisory Defendants corresponds to the named
`
`Defendants in the Second Amended Complaint. Additionally, the fourth cause of action
`in the Petition is no longer viable as the claims are against Elizabeth Croston, whom
`Plaintiffs voluntarily dismissed from this action. See Petition ¶¶ 152-160; Notice of
`Dismissal (docket no. 34) at 1.
`
`
`
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`4
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`that were shut down due to COVID-19 outbreaks were not permitted to enter the Waterloo
`
`facility; (6) sick or symptomatic workers would be sent home immediately and would not
`
`be permitted to return until cleared by health officials; (7) workers would be notified if
`
`they had been in close contact with an infected co-worker; (8) the workers’ health and
`
`safety was a top priority for Tyson; (9) safety measures implemented at the Waterloo
`
`facility would prevent or mitigate the spread of COVID-19 and protect workers from
`
`infection; (10) the Waterloo facility needed to stay open in order to avoid meat shortages
`
`in the United States; and (11) the Waterloo facility was a safe work environment. Id.
`
`¶¶ 100-101(a)-(k). Plaintiffs allege that Tyson knew that such representations were false
`
`and material. Id. ¶¶ 102-103. Further, Plaintiffs allege that Tyson made the false
`
`representations to induce Plaintiffs’ decedents to continue working despite the
`
`uncontrolled COVID-19 outbreak in the Waterloo facility. Id. ¶ 104. Plaintiffs allege
`
`that Plaintiffs’ decedents “accepted and relied” on Tyson’s representations and Plaintiffs’
`
`decedents were induced to continue working at the Waterloo facility. Id. ¶¶ 105-106.
`
`Plaintiffs also allege that Tyson is “vicariously liable for the culpable acts and omissions
`
`committed by all of its agents acting within the course and scope of their agency,”
`
`including the Executive Defendants and Supervisory Defendants. Id. ¶ 108.
`
`
`
`Plaintiffs allege that the Executive Defendants “had a duty to prevent injuries to
`
`[Plaintiffs’ decedents]” and breached their duty and “were grossly negligent” by the
`
`following acts and omissions: (1) failing to develop or implement worksite assessments
`
`to identify COVID-19 risks and prevention strategies for the Waterloo facility; (2) failing
`
`to develop or implement testing and workplace contact tracing of COVID-19 positive
`
`workers at the Waterloo facility; (3) failing to develop and implement a comprehensive
`
`screening and monitoring strategy aimed at preventing the introduction of COVID-19
`
`into the worksite, including: a program to effectively screen workers before entry into
`
`the workplace; return to work criteria for workers infected with or exposed to COVID-
`
`19 and criteria for exclusion of sick or symptomatic workers; (4) allowing or encouraging
`
`sick or symptomatic workers to enter or remain in the workplace; (5) failing to promptly
`5
`
`
`
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`isolate and send sick or symptomatic workers home; (6) failing to configure communal
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`work environments so that workers were spaced at least six feet apart; (7) failing to
`
`modify the alignment of workstations, including those along processing lines, so that
`
`workers did not face each other; (8) failing to install physical barriers to separate or shield
`
`workers from each other; (9) failing to develop, implement or enforce appropriate
`
`cleaning, sanitation and disinfection practices to reduce exposure or shield workers from
`
`COVID-19 at the Waterloo facility; (10) failing to provide workers with appropriate
`
`personal protective equipment, including face coverings; (11) failing to require
`
`employees to wear face coverings; (12) failing to provide adequate hand washing or hand
`
`sanitizing stations throughout the Waterloo facility; (13) failing to slow production in
`
`order to operate with a reduced work force; (14) failing to develop, implement or enforce
`
`engineering or administrative controls to promote social distancing; (15) failing to
`
`modify, develop, implement, promote and educate workers, including workers with
`
`limited English language abilities, regarding revised sick leave, attendance or incentive
`
`policies to ensure that sick or symptomatic workers stay home; (16) failing to ensure that
`
`workers, including workers with limited English language abilities, were aware of, or
`
`understood modified sick leave, attendance or incentive policies; (17) failing to ensure
`
`adequate ventilation in work areas to minimize workers’ potential exposure to COVID-
`
`19 and failing to minimize air flow from fans blowing from one worker directly onto
`
`another worker; (18) failing to establish, implement, promote and enforce a system for
`
`workers, including those with limited English language abilities, to alert supervisors if
`
`they were experiencing signs or symptoms of COVID-19 or if they had recent contact
`
`with a suspected confirmed COVID-19 case; (19) failing to inform workers, including
`
`those with limited English language abilities, who had contact with a suspected or
`
`confirmed COVID-19 case; (20) failing to educate and train workers and supervisors,
`
`including workers with limited English language abilities, on how to reduce the spread
`
`of COVID-19 and prevent exposure to COVID-19; (21) failing to encourage or require
`
`workers to stay home when sick; (22) failing to inform or warn workers that individuals
`6
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`
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`suspected or known to have been exposed to COVID-19 at other Tyson facilities,
`
`including the Columbus Junction facility, were permitted to enter the Waterloo facility
`
`without adequately quarantining or testing negative for COVID-19 prior to entry;
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`(23) operating the Waterloo facility in a manner that resulted in more than 1,000 infected
`
`workers and five deaths; (24) making false and fraudulent misrepresentations on behalf
`
`of Tyson; (25) failing to provide and maintain a safe work environment; (26) failing to
`
`take reasonable precautions to protect workers from foreseeable dangers; and (27) failing
`
`to abide by state and federal regulations and guidance. Id. ¶¶ 118-119(a)-(aa). Based on
`
`the foregoing, Plaintiffs allege that the Executive Defendants’ “acts and omissions were
`
`grossly negligent, reckless, intentional, and constituted willful and wanton disregard for
`
`the safety of workers.” Id. ¶ 120. Plaintiffs allege that “[t]he Executive Defendants
`
`knew of the danger to be apprehended” and “knew or should have known that their
`
`conduct was probable to cause employees to become seriously ill or die.” Id. ¶¶ 122-
`
`123.
`
`
`
`Plaintiffs allege that the Supervisory Defendants “had a duty to prevent injuries to
`
`[Plaintiffs’ decedents]” and breached their duty and “were grossly negligent” through
`
`acts and omissions identical to the acts and omissions alleged against the Executive
`
`Defendants. Id. ¶¶ 134-135(a)-(aa); compare id. ¶ 119(a)-(aa) with id. ¶ 135(a)-(aa).
`
`Plaintiffs allege that the Supervisory Defendants’ “acts and omissions were grossly
`
`negligent, reckless, intentional, and constituted willful and wanton disregard for the
`
`safety of workers.” Id. ¶ 136. Plaintiffs allege that the Supervisory Defendants
`
`“consciously failed to avoid the danger,” even though they “recognized the danger of a
`
`COVID-19 outbreak at the facility and failed to take sufficient precautions to avoid an
`
`outbreak.” Id. ¶ 140. Plaintiffs also allege that:
`
`The Supervisory Defendants made fraudulent misrepresentations to the
`Waterloo workforce. They made false statements concerning the presence
`and spread of COVID-19 at the Waterloo [f]acility, the importance of
`protecting and keeping employees safe, the breadth and efficacy of safety
`measures implemented at the facility, and the importance of keeping the
`
`
`
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`7
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`

`

`facility open. The Supervisory Defendants knew these representations were
`false; they knew or should have known it was wrong to make such false
`representations, and they intended to deceive and induce Waterloo
`employees, including [Plaintiffs’ decedents] to continue working despite the
`danger of COVID-19.
`
`Id. ¶ 142. Specifically, Plaintiffs allege that the Supervisory Defendants “falsely
`
`represented” to Plaintiffs’ decedents that: (1) COVID-19 had not been detected at the
`
`facility; (2) COVID-19 was not spreading through the facility; (3) worker absenteeism
`
`was not related to COVID-19; (4) sick workers were not permitted to enter the facility;
`
`(5) workers from other Tyson facilities that had shut down due to COVID-19 outbreaks
`
`were not permitted to enter the Waterloo facility; (6) sick or symptomatic workers would
`
`be sent home immediately and would not be permitted to return until cleared by health
`
`officials; (7) workers would be notified if they had been in close contact with an infected
`
`co-worker; (8) the workers’ health and safety was a top priority for Tyson; (9) safety
`
`measures implemented at the Waterloo facility would prevent the spread of COVID-19
`
`and protect the workers from infection; (10) the Waterloo facility needed to stay open in
`
`order to avoid meat shortages in the United States; and (11) the Waterloo facility was a
`
`safe work environment. Id. ¶ 143(a)-(k). Further, Plaintiffs allege that the Supervisory
`
`Defendants knew that such representations were false and material. Id. ¶¶ 144-145.
`
`Plaintiffs allege that the Supervisory Defendants made the false representations to induce
`
`Plaintiffs’ decedents to continue working despite the uncontrolled COVID-19 outbreak in
`
`the Waterloo facility, Plaintiffs’ decedents “accepted and relied” on the Supervisory
`
`Defendants’ representations and Plaintiffs’ decedents were induced to continue working
`
`at the Waterloo facility. Id. ¶¶ 146-148.
`
`
`
`No party requests oral argument and the court finds that oral argument is
`
`unnecessary. The matter is fully submitted and ready for decision.
`
`C. Factual Allegations in the Petition
`
`
`
`On March 13, 2020, President Donald Trump declared a national emergency due
`
`to the coronavirus pandemic. Id. ¶ 51. Also, on or about March 13, 2020, Tyson
`8
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`
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`“suspended all [United States] commercial business travel, [forbade] all non-essential
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`visitors from entering Tyson offices and facilities, and mandated that all non-critical
`
`employees at its [United States] corporate office locations work remotely.” Id. ¶ 52. On
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`March 17, 2020, Governor Kim Reynolds declared a public health disaster emergency
`
`for the State of Iowa due to the coronavirus pandemic. Id. ¶ 53.
`
`
`
`Tyson’s facility in Waterloo, Iowa, is its “largest pork plant in the United States.”
`
`Id. ¶ 56. The facility employs approximately 2,800 workers and processes approximately
`
`19,500 hogs per day. Id. By late-March or early April, the Executive Defendants,
`
`Supervisory Defendants and other Tyson managers were aware that COVID-19 was
`
`spreading throughout the Waterloo facility. Id. ¶ 58. On April 3, 2020, the CDC
`
`recommended that all Americans wear face coverings in public to prevent the spread of
`
`COVID-19. Id. ¶ 59. Tyson did not provide its workers at the Waterloo facility with
`
`sufficient face coverings or other personal protective equipment. Id. ¶ 60. Tyson also
`
`“did not implement or enforce sufficient social distancing measures at the Waterloo
`
`[f]acility.” Id. ¶ 61.
`
`
`
`On or about April 6, 2020, after more than two dozen employees tested positive
`
`for COVID-19, Tyson temporarily suspended operations at the Columbus Junction, Iowa,
`
`facility. Id. ¶ 62. Also, on or about April 6, 2020, Tyson installed temperature-check
`
`stations at the entrances to the Waterloo facility. Id. ¶ 63.
`
`
`
`On April 10, 2020, Black Hawk County Sheriff Tony Thompson and Black Hawk
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`County health officials visited Tyson’s Waterloo facility. Id. ¶ 64. According to Sheriff
`
`Thompson, working conditions at the Waterloo facility were poor, with workers
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`“crowded elbow to elbow” and “most without face coverings.” Id. ¶ 65. “Sheriff
`
`Thompson and other local officials lobbied Tyson to close the plant, but [Tyson] refused.”
`
`Id. ¶ 66. On April 12, 2020, approximately two-dozen Tyson employees were seen at
`
`the emergency department at MercyOne Waterloo Medical Center. Id. ¶ 67.
`
`
`
`On April 14, 2020, Black Hawk County officials asked Tyson to temporarily shut
`
`down the Waterloo facility. Id. ¶ 68. Tyson did not shut the facility down. Id. On
`9
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`April 16, 2020, Tyson publicly denied a COVID-19 outbreak at the Waterloo facility.
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`Id. ¶ 69. On or about April 17, 2020, “twenty local elected officials sent a letter to
`
`Tyson . . . imploring the company to take steps ‘to ensure the safety and well-being of
`
`Tyson’s valuable employees and our community’ and to ‘voluntarily cease operations on
`
`a temporary basis at [the] Waterloo [f]acility so that appropriate cleaning and mitigation
`
`strategies [could] take place.’” Id. ¶ 70 (first alteration in original). Further, the letter
`
`stated that “at least one Tyson employee had informed Waterloo health care providers
`
`that he or she had transferred to the Waterloo [f]acility from Tyson’s Columbus Junction
`
`plant, which had closed due to a COVID-19 outbreak” and “workers did not have
`
`sufficient personal protective equipment; social distancing measures were not being
`
`implemented or enforced on the plant floor or in employee locker rooms; nurses at the
`
`Waterloo [f]acility lacked sufficient medical supplies and were unable to accurately
`
`conduct temperature checks; and because of language barriers, non-English speaking
`
`employees mistakenly believed they could return to work while sick.” Id.
`
`
`
`After the Columbus Junction facility was shut down due to a COVID-19 outbreak,
`
`Tyson transferred workers from Columbus Junction to the Waterloo facility. Id. ¶ 72.
`
`“Tyson failed to test or adequately quarantine workers from the Columbus Junction
`
`[facility] before allowing them to enter the Waterloo [f]acility.” Id. ¶ 73. Also, Tyson
`
`allowed subcontractors from facilities that had shut down due to COVID-19 outbreaks to
`
`enter the Waterloo facility. Id. ¶ 74. “Tyson did not test or adequately quarantine these
`
`subcontractors before allowing them to enter and move about the Waterloo [f]acility.”
`
`Id. ¶ 75. Tyson “permitted or encouraged sick and symptomatic employees and
`
`asymptomatic employees known or suspected to have been exposed to COVID-19 to
`
`continue working at the Waterloo [f]acility.” Id. ¶ 76. “At least one worker at the
`
`facility vomited on the production line and management allowed him to continue working
`
`and return to work the next day.” Id. Supervisors and managers at the Waterloo facility
`
`told employees that their co-workers were sick with the flu, not COVID-19, and told
`
`them not to discuss COVID-19 at work. Id. ¶ 78.
`10
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`
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`“[H]igh-level Tyson executives began lobbying the White House for COVID-19
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`related liability protections as early as March and continued their lobbying efforts
`
`throughout April.” Id. ¶ 79. Tyson executives also lobbied members of Congress for
`
`COVID-19-related liability protections. Id. ¶ 80. Further, Tyson executives lobbied
`
`Governor Reynolds for COVID-19-related liability protections. Id. ¶ 81.
`
`
`
`On April 20, 2020, Tyson began shutting down operations at its Waterloo facility
`
`due to the lack of a healthy labor force, but the facility did not shut down until April 22,
`
`2020, after it had processed the remaining hogs in its cooler. Id. ¶ 84. On April 22,
`
`2020, Tyson indefinitely suspended operations at the Waterloo facility. Id. ¶ 85. On
`
`April 28, 2020, President Trump “signed an executive order classifying meat processing
`
`plants as essential infrastructure that must remain open,” in order “to avoid risk to the
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`nation’s food supply.” Id. ¶ 89.
`
`
`
`The Black Hawk County Health Department recorded more than 1,000 COVID-
`
`19 infections among Tyson employees, which is more than one-third of the Waterloo
`
`facility workforce. Id. ¶ 91. Five workers from the Waterloo facility died. Id. On
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`April 18, 2020, Sedika Buljic died from complications due to COVID-19. Id. ¶ 3. On
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`April 23, 2020, Reberiano Garcia died from complications due to COVID-19. Id. ¶ 6.
`
`On May 25, 2020, Jose Ayala, Jr. died from complications due to COVID-19. Id. ¶ 9.
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`III. NOTICE OF REMOVAL
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`
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`In the Notice of Removal, Tyson asserts that this court has subject matter
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`jurisdiction because Plaintiffs’ Petition “challenges actions taken by Tyson at the direction
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`of a federal officer.” Notice of Removal at 1. Tyson reads Plaintiffs’ Petition to argue
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`that, “in effect . . . Tyson should have shut down its facility in Waterloo, Iowa during
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`the COVID-19 pandemic.” Id. at 3. Tyson maintains, however, that the Waterloo
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`facility “was operating pursuant to the President of the United States’ authority to order
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`continued food production and under the direct supervision of the U.S. Secretary of
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`Agriculture.” Id. Tyson emphasizes an Executive Order, dated April 28, 2020, which
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`states that “‘[i]t is important that processors of beef, pork, and poultry . . . in the food
`11
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`supply chain continue operating and fulfilling orders to ensure a continued supply of
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`protein for Americans’ and any ‘closures [of such facilities] threaten the continued
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`functioning of the national meat and poultry supply chain’ and ‘undermin[e] critical
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`infrastructure during the national emergency.’” Id. (alterations in original) (quoting
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`Executive Order on Delegating Authority under the DPA with respect to Food Supply
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`Chain Resources during the National Emergency caused by the Outbreak of COVID-19,
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`2020 WL 2060381, at *1 (Apr. 28, 2020)). Tyson maintains that, because it was “under
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`a Presidential order to continue operations pursuant to supervision of the federal
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`government and pursuant to federal guidelines and directives, including directives from
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`the Secretary of Agriculture and guidance from the CDC and OSHA, federal court is the
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`proper forum for resolving this case.” Id.
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`
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`More specifically, Tyson offers the following timeline in support of its position
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`that it was acting under the direction of a federal officer:
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`On March 13, 2020, the President declared “a National Emergency in
`response to the COVID-19 outbreak. . . .” Soon after, on March 16, [2020]
`the President issued “Coronavirus Guidelines” that emphasized that
`employees in “critical infrastructure industry[ies]”—including companies
`like Tyson that are essential to maintaining food-supply chains and ensuring
`the continued health and safety of all Americans—have a ‘special
`responsibility to maintain [their] normal work schedule.” Exec. Office of
`Pres., The President’s Coronavirus Guidelines for America at 2 (Mar. 16,
`2020). On March 24, President Trump approved a major disaster
`declaration under the federal Stafford Act for the State of Iowa in response
`to the COVID-19 outbreak.
`
`Id. at 4 (second and third alteration in original). Tyson emphasizes that, on April 28,
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`2020, President Trump issued an executive order “invoking his authority under the
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`Defense Production Act . . . the President again instructed that Tyson and other meat and
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`poultry processing companies to stay open and continue operations, subject to the
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`supervision of the Secretary of Agriculture.” Id. at 4-5. Further, Tyson emphasizes
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`that, on May 5, 2020, the Secretary of Agriculture issued a letter to Governors stating
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`that:
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`Effective immediately, I have directed meat and poultry processors to
`utilize the guidance issued on Sunday, April 26, 2020, by CDC and OSHA
`specific to the meat and poultry processing industry to implement practices
`and protocols for staying operational or resuming operations while
`safeguarding the health of workers and the community. . . .
`
`The U.S. Department of Agriculture (USDA) has also directed meat and
`poultry processing plants currently closed and without a clear timetable for
`near-term reopening to submit to USDA written documentation of their
`protocol, developed based on the CDC/OSHA guidance, and resume
`operations as soon as they are able after implementing the CDC/OSHA
`guidance for the protection of workers.
`
`Id. at 6 (quoting U.S. Department of Agriculture, Letter to Governors (May 5, 2020)).
`
`Further, Tyson notes that, on May 18, 2020, the USDA and United States Food and Drug
`
`Administration (“FDA”) entered into a memorandum of understanding explaining each
`
`Department’s role in utilizing the DPA to regulate food producers during the COVID-19
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`outbreak. Id. Tyson points out that the memorandum stated that the USDA “retained
`
`exclusive delegated authority under the DPA to issue orders regarding domestic food
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`producers.” Id. (quotation omitted). Tyson maintains that its actions to keep operating
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`the Waterloo facility stem from “the authority, orders, detailed regulation, and
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`supervision of the President and Secretary of Agriculture under the DPA” and, therefore,
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`it was “‘acting under’ federal officers.” Id. at 7.
`
`
`
`Further, in the Notice of Removal, Tyson asserts that “[t]here is a causal
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`connection between the Petition’s allegations and the actions [it] took at the direction of
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`the President and Secretary of Agriculture.” Id. Tyson frames Plaintiffs’ Petition as
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`containing allegations of liability “in tort for not shutting down the Waterloo facility.”
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`Id. at 7-8. Tyson also argues that the Petition “challenges specific measures [it] adopted
`
`or allegedly failed to adopt in response to the coronavirus” but maintains that “the
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`measures that [it] took were implemented at the express direction of federal officers” and
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`any such disputes are for a federal court to answer, not a state court. Id. at 8.
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`Additionally, in the Notice of Removal, Tyson asserts, that it has colorable federal
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`defenses under the FMIA, the DPA and President Trump’s April 28, 2020 Executive
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`Order. See id. at 8-9.
`
`
`
`Finally, in the Notice of Removal, Tyson contends that removal is appropriate
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`because the court has federal question jurisdiction. Id. at 9. Specifically, Tyson asserts
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`that Plaintiffs’ Petition necessarily raises substantial federal issues making federal
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`jurisdiction appropriate. See generally id. at 9-12.
`
`IV. MOTION TO REMAND
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`A. Parties’ Arguments
`
`
`
`Plaintiffs argue that “[f]ederal officer removal is improper because Tyson failed
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`to identify any federal directive that existed at the time decedents were working for
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`Tyson, failed to establish causation between a directive and the company’s tortious
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`conduct, and failed to raise a colorable federal defense.” Plaintiffs’ Brief in Support of
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`Motion to Remand (“Plaintiffs’ Brief”) (docket no. 15-1) at 4. Plaintiffs’ reading of
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`Tyson’s Notice of Removal is that Tyson primarily relies on President Trump’s April 28,
`
`2020 Executive Order, instructing meat processing plants to remain open, as its theory
`
`for federal officer removal. See id. Plaintiffs maintain that Tyson’s theory of federal
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`officer removal fails for four reasons. First, Plaintiffs argue that they “did not sue Tyson
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`for actions taken subsequent to President Trump’s April 28[, 2020] Executive Order.”
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`Id. at 5. Second, Plaintiffs assert that contrary to Tyson’s reading of their Petition, they