CASE NO. _______
`
`
`JOINT NOTICE OF REMOVAL
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF IOWA
`EASTERN DIVISION
`
`
`Levita Simmons, Administrator of the
`Estate of Arthur Scott, and Jeffrey
`Orvis, Administrator of the Estate of
`James Orvis,
`
`Plaintiffs,
`
`vs.
`Tyson Foods, Inc., doing business as
`Tyson Pet Products, and Tyson Fresh
`Meats Group, a wholly owned
`subsidiary of Tyson Foods, Inc., John
`H. Tyson, Noel W. White, Dean Banks,
`Steven R. Stouffer, Tom Brower, Mary
`A. Oleksink, Elizabeth Croston, Scott
`Walston, David Scott, Tom Hart, Cody
`Brustkern, John Casey, Bret Tapken,
`Hamdija Beganovic, Ramiz Mujelic,
`and Unknown Plant Managers and
`Supervisors at Tyson Waterloo Plant
`and Unknown Plant Managers and
`Supervisors at Tyson Independence
`Plant,
`
`Defendants.
`
`
`
`JOINT NOTICE OF REMOVAL
`Defendants Tyson Foods, Inc. and Tyson Fresh Meats Group (together, “Ty-
`
`son”), John H. Tyson, Noel W. White, Dean Banks, Steven R. Stouffer, Tom Brower,
`Mary A. Oleksink, Elizabeth Croston, Scott Walston, David Scott, Tom Hart, Cody
`Brustkern, John Casey, Bret Tapken, Hamdija Beganovic, and Ramiz Mujelic jointly
`remove this civil action under 28 U.S.C. §§ 1331, 1441, 1442, and 1446. This Court
`has subject matter jurisdiction, and the case is removable because:
`
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`(2)
`
`(1)
`
`Plaintiffs’ Petition and Jury Trial Demand (“Petition”) challenges
`actions taken by Defendants at the direction of a federal officer,
`for which Defendants will have a colorable federal defense (28
`U.S.C. § 1442(a)(1)); and
`The Petition raises substantial and disputed issues of federal law
`related to national emergency declarations, federal critical infra-
`structure designations, and the Defense Production Act that must
`be decided by a federal forum (28 U.S.C. § 1331).
`Removal is timely. Tyson accepted service of the Petition on June 7, 2021, and
`this Notice is being filed within 30 days thereof. See 28 U.S.C. § 1446(b)(1); Murphy
`Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999).
`
`BACKGROUND
`For the past year, the United States has struggled with a global pandemic
`whose size and scope are without modern precedent. Millions were infected with the
`novel coronavirus, and more than 590,000 Americans died of COVID-19. The eco-
`nomic and human fallout from the pandemic were severe. This case is brought by
`relatives of two individuals, Arthur Scott and James Orvis, who worked at Tyson
`meat processing facilities. Plaintiffs allege that Mr. Scott and Mr. Orvis contracted
`COVID-19 at work and later died of the disease. Their deaths are tragic.
`But Plaintiffs’ allegations—including allegations of wanton misconduct—are
`inaccurate and incorrect, and Defendants vigorously dispute Plaintiffs’ claims. Tyson
`has worked from the beginning of the pandemic to follow federal workplace guidelines
`and has invested millions of dollars to provide employees with safety and risk-miti-
`gation equipment. Tyson’s efforts to protect its workers while continuing to supply
`Americans with food continue to this day.
`Removal is proper because this case seeks to countermand federal statutes and
`federal directions Tyson received to assist the federal government in its efforts to
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`ensure that the greatest national health crisis in a century would not also spiral into
`a national food shortage. The Petition alleges that Tyson should have shut down fa-
`cilities in Iowa during the COVID-19 pandemic or operated the facilities differently.
`But those facilities were operating as part of the federally designated “critical infra-
`structure” at the direction of, and under the supervision of, the President and numer-
`ous other federal officials, including the Office of the Vice President, U.S. Department
`of Homeland Security, U.S. Department of Agriculture, and U.S. Department of
`Transportation. Tyson worked hand-in-hand with federal officials from the time of
`the declaration of a national emergency on March 13 to safely continue operations to
`aid the federal government in accomplishing its duty to secure the national food sup-
`ply. The President and the Secretary of Agriculture provided detailed instructions for
`meat and poultry processing facilities to continue operating, incorporating industry-
`specific guidance from the Centers for Disease Control and Prevention (“CDC”) and
`the Occupational Safety and Health Administration (“OSHA”). And after attempts by
`states to interfere with this national prerogative, the President again confirmed that
`“[i]t is important that processors of beef, pork, and poultry . . . in the food supply chain
`continue operating and fulfilling orders to ensure a continued supply of protein for
`Americans” and “continue operations consistent with the guidance for their opera-
`tions jointly issued by the CDC and OSHA,” and that any “closures [of such facilities]
`threaten the continued functioning of the national meat and poultry supply chain”
`and “undermin[e] critical infrastructure during the national emergency.” Executive
`Order on Delegating Authority Under the DPA with Respect to Food Supply Chain
`Resources During the National Emergency Caused by the Outbreak of COVID-19
`
`
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`(“Food Supply Chain Resources”), 85 Fed. Reg. 26,313, 26,313, 2020 WL 2060381, at
`*1 (Apr. 28, 2020).1
`Because Defendants continued to operate Tyson’s facilities at the direction of
`federal officers at the highest levels, who enlisted Tyson’s help in the government’s
`efforts to ensure that the pandemic would not disrupt the operation of America’s crit-
`ical infrastructure, a federal court must resolve this case.
`ARGUMENT
`Removal is appropriate under 28 U.S.C. § 1442(a)(1) if any Defendant can sat-
`isfy the removal requirements as to any “one claim.” See, e.g., Baker v. Atl. Richfield
`Co., 962 F.3d 937, 945 (7th Cir. 2020) (“[R]emoval need not be justified as to all claims
`asserted in the plaintiffs’ complaint; rather, the defense need only apply to one claim
`to remove the case.”) (quoting Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 257 (4th
`Cir. 2017)); 14C Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. § 3726
`(Rev. 4th ed.) (“Because Section 1442(a)(1) authorizes removal of the entire action
`even if only one of the controversies it raises involves a federal officer or agency, the
`section creates a species of statutorily-mandated supplemental subject-matter juris-
`diction.”).
`
`Federal officer removal is proper under 28 U.S.C. § 1442(a)(1).
`I.
`Under 28 U.S.C. § 1442(a)(1), a civil action may be removed to federal court if
`
`the action is asserted against a person acting under the direction of a federal officer:
`
`A civil action . . . that is against or directed to any of the following
`may be removed . . . :
`(1) The United States or any agency thereof or any officer (or any
`person acting under that officer) of the United States or of any
`
`1 https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-delegat-
`ing-authority-dpa-respect-food-supply-chain-resources-national-emergency-caused-
`outbreak-covid-19/
`
`
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`agency thereof, in an official or individual capacity, for or relating
`to any act under color of such office . . . .
`28 U.S.C. § 1442(a)(1) (emphasis added).
`Here, federal officer removal is proper because (1) Defendants “acted under the
`direction of a federal officer,” (2) “there was a causal connection between [Defend-
`ants’] actions and the official authority,” (3) Defendants have “a colorable federal de-
`fense to the plaintiff’s claims,” and (4) each Defendant “is a ‘person,’ within the mean-
`ing of the statute.” Jacks v. Meridian Res. Co., 701 F.3d 1224, 1230 (8th Cir. 2012)
`(citing Dahl v. R.J. Reynolds Tobacco Co., 478 F.3d 965, 967 n.2 (8th Cir. 2007)).
`
`Federal Direction. On March 13, 2020, the President “proclaim[ed] that the
`COVID-19 outbreak in the United States constitutes a national emergency, beginning
`March 1, 2020.”2 The federal government proceeded to devote significant effort to
`combating the pandemic and its potentially catastrophic effects, enlisting both public
`and private entities in its efforts to ensure that the rapid spread of the disease would
`not disrupt the nation’s critical infrastructure. A particular focus of that effort was
`the protection of the nation’s food supply.
`
`This “critical infrastructure” designation derives from the Critical Infrastruc-
`ture Protection Act passed after 9/11, see 42 U.S.C. § 5195c(e), which instructed the
`U.S. Department of Homeland Security to develop plans to protect designated “criti-
`cal infrastructure” in the event of future disasters. “Food and Agriculture” is one of
`the sixteen recognized “sectors” of critical infrastructure and is subject to a 2013 Pres-
`idential Policy Directive intended to “advance[] a national unity of effort to
`strengthen and maintain secure, functioning, and resilient critical infrastructure.”3
`Coordinating protection of the Food and Agriculture Sector has been assigned to the
`
`2 https://trumpwhitehouse.archives.gov/presidential-actions/proclamation-declaring-
`national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/
`3 https://obamawhitehouse.archives.gov/the-press-office/2013/02/12/presidential-pol-
`icy-directive-critical-infrastructure-security-and-resil
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`U.S. Departments of Agriculture and Health and Human Services, which have an
`extensive plan4 “to protect against a disruption anywhere in the food system that
`would pose a serious threat to public health, safety, welfare, or to the national econ-
`omy.”5
`
`The Defense Production Act (“DPA”), 50 U.S.C. § 4501 et seq., provides the fed-
`eral government with additional authority. The DPA grants the President authority
`to “control the general distribution of any material in the civilian market” that the
`President deems “a scarce and critical material to the national defense.” Id. § 4511(b).
`The Critical Infrastructure Protection Act expressly cross-references the DPA and
`characterizes the emergency preparedness activities that both statutes contemplate
`as part of the “national defense.” See 42 U.S.C. § 5195a(b). The statutes vest the Pres-
`ident with ample authority to direct the operation of critical infrastructure like the
`distribution of meat and poultry to protect the national food chain—a point that the
`
`
`4 https://www.cisa.gov/critical-infrastructure-sectors
`5 https://www.cisa.gov/sites/default/files/publications/nipp-ssp-food-ag-2015-508.pdf
`at 13.
`
`The federal government’s plan explicitly includes “Animal Food Manufactur-
`ing” and various subcategories such as “[m]anufacture of food for household pets”
`within the Food and Agriculture sector of critical infrastructure. See id. at 93-94. Ac-
`cordingly, as the Petition acknowledges, in March 2020, the U.S. Department of
`Homeland Security designated “animal slaughter and processing facilities,” including
`“pet and animal feed processing facilities” as essential critical infrastructure. [Pet.
`¶¶ 65-66] Plaintiffs’ suggestion that the Independence facility is somehow stripped of
`this designation because it produces animal food (id. ¶¶ 74, 114-15) is incorrect.
`But for purposes of federal officer removal, the Court need not resolve this
`question or even address the Independence facility. As discussed above, this entire
`suit is removable under 28 U.S.C. § 1442(a)(1) if one Defendant can satisfy the re-
`moval requirements as to any “one claim.” See, e.g., Baker, 962 F.3d at 945; 14C
`Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. § 3726. Plaintiffs cannot
`dispute that the Waterloo facility, which processes pork for human consumption, was
`operating as critical infrastructure under the direction of federal officers during the
`national emergency.
`
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`President underscored shortly after declaring a national emergency. See Remarks by
`President Trump, Vice President Pence, and Members of the Coronavirus Task Force
`in Press Briefing, The White House (Mar. 18, 2020), https://bit.ly/2Nh91XZ (“We’ll be
`invoking the Defense Production Act, just in case we need it.”).
`
`From the time of President Trump’s disaster declaration on March 13, Tyson
`was in close contact with federal officials regarding continued operations as critical
`infrastructure and acting at the direction of those officials. For example, on March 15
`(just two days after declaring a national emergency), in response to significant hoard-
`ing of food and other items, the President personally met with Tyson and other food
`industry companies to convey that they would thereafter be “working hand-in-hand
`with the federal government” to ensure that “food and essentials are constantly avail-
`able,” and that food suppliers would “work 24 hours around the clock” to achieve that
`goal.6
`
`The next day, on March 16, the President reinforced this obligation to aid the
`federal government by issuing “Coronavirus Guidelines” emphasizing that employees
`in “critical infrastructure industr[ies]”—including companies like Tyson that are es-
`sential to maintaining food-supply chains and ensuring the continued health and
`safety of all Americans—have a “special responsibility” and “should follow CDC guid-
`ance to protect [employees’] health at work.” Exec. Office of Pres., The President’s
`Coronavirus Guidelines for America at 2 (Mar. 16, 2020).7
`Over the next weeks, Tyson was in frequent contact with federal officers re-
`garding the best way to safely continue operations, in particular with the Department
`of Agriculture’s Food Safety Inspection Service (“FSIS”). In fact, FSIS employees were
`
`
`6 https://www.foodbusinessnews.net/articles/15621-trump-meets-with-food-com-
`pany-leaders
`7 https://trumpwhitehouse.archives.gov/wp-content/uploads/2020/03/03.16.20_coro-
`navirus-guidance_8.5x11_315PM.pdf
`
`
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`on-site at Tyson’s meat processing facilities, and Tyson’s employees carried letters
`identifying them as “critical infrastructure” workers, so that those employees could
`explain their exemption from local lockdowns should any authorities question them.
`Federal officials also continued to emphasize the need for companies in the
`Food and Agriculture Sector to keep operating pursuant to unified, federal guidance.
`For example, in an April 7 statement, Vice President Pence stressed that “we need
`[food industry workers] to continue, as a part of what we call our critical infrastruc-
`ture, to show up and do your job and know that we’re going to continue to work tire-
`lessly in working with all of your companies to make sure that that workplace is
`safe.”8 Congress even appropriated supplemental funding to FSIS to accommodate
`the continued presence of FSIS at facilities, including Tyson’s facilities, during the
`pandemic. The Department of Agriculture and Federal Emergency Management
`Agency (“FEMA”) worked to provide Tyson and federal workers at Tyson’s facilities
`with the necessary personal protective equipment to continue to operate, and the De-
`partment of Transportation provided special status for transportation workers, in-
`cluding Tyson truck drivers delivering meat and poultry, to operate during the pan-
`demic and provide much needed food to restock stores during the emergency.
`But notwithstanding the close collaboration between Tyson and federal offi-
`cials to safely continue operations, state and local officials began asserting contradic-
`tory authority with respect to meat and poultry processing facilities. Those state ac-
`tions led to an Executive Order re-emphasizing federal supremacy with respect to
`meat and poultry facilities. On April 28, President Trump expressly invoked his au-
`thority under the DPA and again directed that it was federal policy that meat and
`poultry processing companies continue operating subject to the supervision of the
`
`8 https://trumpwhitehouse.archives.gov/briefings-statements/remarks-president-
`trump-vice-president-pence-members-coronavirus-task-force-press-briefing-april-7-
`2020/
`
`
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`Secretary of Agriculture. See Food Supply Chain Resources, 85 Fed. Reg. at 26,313,
`2020 WL 2060381, at *1. The executive order states in relevant part:
`
`It is important that processors of beef, pork, and poultry (“meat
`and poultry”) in the food supply chain continue operating and
`fulfilling orders to ensure a continued supply of protein for
`Americans. . . . [R]ecent actions in some States have led to the
`complete closure of some large processing facilities.
`*
`*
`*
`Such closures threaten the continued functioning of the na-
`tional meat and poultry supply chain, undermining critical infra-
`structure during the national emergency.
`*
`*
`*
`[T]he Secretary of Agriculture shall take all appropriate action
`. . . to ensure that meat and poultry processors continue
`operations consistent with the guidance for their operations
`jointly issued by the CDC and OSHA.
`
`Id. (emphases added).
`
`Consistent with the Food Supply Chain Resources executive order and the
`prior directives, the Secretary of Agriculture then promptly issued two letters: one to
`meat and poultry processing companies directing them to continue operating pursu-
`ant to the federal directives, and one to state and local officials across the nation
`reiterating their obligation to work with the Secretary to ensure meat and poultry
`processing companies’ compliance with federal directives. See U.S. Dep’t of Agricul-
`ture, Press Release No. 0243.20 (May 6, 2020) (announcing that the Secretary had
`issued a “Letter to Governors” and “Letter to Stakeholders”).9 The Secretary’s Letter
`to Stakeholders again emphasized that the “Nation’s meat and poultry processing
`
`
`9 https://www.usda.gov/media/press-releases/2020/05/06/secretary-perdue-issues-let-
`ters-meat-packing-expectations
`
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`facilities and workers play an integral role in the continuity of our food supply chain.”
`U.S. Dep’t of Agriculture, Letter to Stakeholders (May 5, 2020).10
`
`The U.S. Department of Agriculture also entered into a Memorandum of Un-
`derstanding with the U.S. Food and Drug Administration (“FDA”) setting forth the
`respective roles of each agency in utilizing the DPA to regulate food producers during
`the COVID-19 outbreak. See Memorandum of Understanding Between FDA and
`USDA Regarding the Potential Use of the Defense Production Act with Regard to FDA-
`Regulated Food During the COVID-19 Pandemic (May 18, 2020).11 Notably, the
`agreement reiterated that “actions by States or localities could lead to the closure of
`food resource facilities,” and such closures “could threaten the continued functioning
`of the national food supply chain, undermining critical infrastructure during the na-
`tional emergency.” Id. at 1-2.
`Accordingly, Tyson was operating as critical infrastructure at the direction of
`federal officials since the outset of the March 13 emergency declaration. As such, Ty-
`son was “acting under” the direction of a federal officer, 28 U.S.C. § 1442(a)(1), and
`“helping the Government to produce an item that it needs” for the national defense,
`Watson v. Philip Morris Cos., 551 U.S. 142, 153 (2007); Fields v. Brown, No. 6:20-cv-
`00475, 2021 WL 510620, at *3 (E.D. Tex. Feb. 11, 2021); see also Camacho v. Autori-
`dad de Telefonos de Puerto Rico, 868 F.2d 482, 486-87 (1st Cir. 1989) (holding that
`“the reach of section 1442(a)(1) extends to private persons . . . who act under the
`direction of federal officers,” including companies ordered to “facilitate” or “offer[]
`technical assistance” to federal agents exercising statutory authority).
`
`
`10 Letter from Sonny Perdue, Sec’y of Agric., Re: Executive Order 13917 Delegating
`Authority Under the Defense Production Act with Respect to the Food Supply Chain
`Resources During the National Emergency Caused by the Outbreak of COVID-19
`(May 5, 2020).
`11 https://www.usda.gov/sites/default/files/documents/mou-between-fda-usda-dpa.pdf
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`Indeed, it is well established that private providers to the government of mili-
`tary products (see, e.g., Papp v. Fore-Kast Sales Co., 842 F.3d 805, 813 (3d Cir. 2016))
`or health benefits (see, e.g., Jacks, 701 F.3d at 1230-35) can invoke federal officer
`removal. Here, Tyson was acting at the direction of, and hand-in-hand with, federal
`officers in a time of emergency to provide the food security that the government rec-
`ognized it could not accomplish alone. See, e.g., Ruppel v. CBS Corp., 701 F.3d 1176,
`1181 (7th Cir. 2012) (explaining that “the Supreme Court has approved removal” in
`cases where “defendants work[ed] hand-in-hand with the federal government to
`achieve a task that furthers an end of the federal government”).
`And with respect to the DPA in particular, the President made clear on
`March 24 that companies were acting in the shadow of potential DPA orders: “The
`Defense Production Act is in full force, but haven’t had to use it because no one has
`said NO!”12 The Fifth Circuit has recognized that such dynamics amount to govern-
`ment orders and actions—that “the threat of mandatory powers would be used as a
`‘big stick’ to induce voluntary cooperation,” and that the DPA’s “broad authority” can
`be exercised through either “formal, published regulations” or “informal and indirect
`methods of securing compliance.” E. Air Lines, Inc. v. McDonnell Douglas Corp., 532
`F.2d 957, 992-93, 998 (5th Cir. 1976). That is especially true in a time of emergency
`because “a cumbersome and inflexible administrative process is antithetical to the
`pressing necessities.” Id. at 998. Just like a private chauffeur enlisted by a federal
`officer to drive in hot pursuit of a fleeing suspect, here Tyson was enlisted to carry
`out paramount government objectives in a fast-moving crisis. See Maryland v. Soper,
`270 U.S. 9, 30 (1926) (chauffeur acting under orders of federal officers had “the same
`right to the benefit of [federal-officer removal] as they”). In both cases, there is federal
`
`
`12 Doina Chiacu, Trump Administration Unclear over Emergency Production Measure
`to Combat Coronavirus, Reuters (March 24, 2020, 7:39 AM), http://reut.rs/3rS3MN5.
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`direction even though there is no time for a formal deputization. Indeed, the Presi-
`dent formally invoked the DPA on April 28 only in response to state and local govern-
`ments’ failure to heed the Executive Branch’s earlier directives to meat and poultry
`processors.
`Consistent with the finding of federal officer removal in Winters v. Diamond
`Shamrock Chemical Co., 149 F.3d 387 (5th Cir. 1998), the federal government here
`(1) provided “detailed specifications” governing Tyson’s ongoing operations—through
`the federal direction that the CDC and OSHA guidelines would govern operations,
`and promulgation of exceedingly detailed guidelines; and (2) exercised “on-going su-
`pervision” of those operations through multiple federal officials, id. at 399-400, in-
`cluding the Secretary of Agriculture, who was delegated power by the Department of
`Homeland Security to preserve the Food and Agriculture Sector during the pandemic
`and by the President to “take all appropriate action . . . to ensure that meat and
`poultry processors continue operations consistent with the guidance for their opera-
`tions jointly issued by the CDC and OSHA.” 85 Fed. Reg. at 26,313, 2020 WL 2060381,
`at *1. The Petition challenges Tyson’s failure to shut down the Waterloo facility and
`the various measures that were taken at the facility. [See, e.g., Pet. ¶¶ 94 (alleging
`that “[l]ocal officials urged Tyson to shut down the Waterloo plant, but Tyson . . .
`refused to shut down”), 96-97 (similar), 128 (alleging that Tyson “did not follow the
`CDC’s or OSHA’s Guidelines”), 133-34 (criticizing Tyson’s provision of masks, per-
`sonal protective equipment, and COVID-19 testing)] But those alleged actions were
`taken pursuant to the authority, orders, detailed regulation, and supervision of fed-
`eral officers, up to and including the President and Vice President. Tyson was there-
`fore “acting under” federal officers and is entitled to have this case heard in federal
`court. 28 U.S.C. § 1442(a)(1); Fields, 2021 WL 510620, at *3 (“[B]ased on the critical-
`infrastructure designation, [Tyson was] ‘acting under’ the directions of federal offi-
`cials when the federal government announced a national emergency on March 13.”).
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`Connection or Association. Following the text of 28 U.S.C. § 1442(a)(1), it suf-
`fices if the lawsuit targets actions Defendants took “relating to” the directions of fed-
`eral officers, which requires that Plaintiffs’ allegations be “connected or associated
`with” Defendants’ actions taken “pursuant to a federal officer’s directions.” See La-
`tiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 296 (5th Cir. 2020) (en banc); see also
`Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 258 (4th Cir. 2017) (same); Papp, 842
`F.3d at 813 (same). Here, there is a direct connection between the Petition’s allega-
`tions and the actions Tyson and the other Defendants took at the direction of federal
`officers. See Fields, 2021 WL 510620, at *4 (denying motion for remand, holding on
`similar facts that direct connection existed between Tyson’s actions and allegations
`of plaintiff).
`
`As noted above, the Petition alleges that Tyson is liable in tort for not shutting
`down and allowing employees to continue working given the supposedly high risk of
`them contracting COVID-19 (e.g., Pet. ¶¶ 94, 96-97, 101, 109, 115, 125), even though
`Tyson’s facilities were operating as critical infrastructure under federal directions
`during a national emergency. Likewise, the Petition challenges specific measures
`that Tyson adopted or allegedly failed to adopt in response to the coronavirus. [See,
`e.g., Pet. ¶¶ 82-83, 119-23, 128, 133, 136, 158-60] But the measures that Tyson took
`were at the direction of federal officers to continue safe operations as critical infra-
`structure during a national emergency. Any dispute that Tyson should have operated
`differently from the federal directions it received in a national emergency should be
`for the “federal—not state—courts to answer.” Isaacson v. Dow Chem. Co., 517 F.3d
`129, 138 (2d Cir. 2008) (federal courts must resolve “whether the challenged act was
`outside the scope of Defendants’ official duties, or whether it was specifically directed
`by the federal Government”) (citing Willingham v. Morgan, 395 U.S. 402, 409 (1969)).
`
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`Colorable Federal Defenses. Tyson has at least the following federal defenses
`
`to the claims in the Petition.
`• Express preemption under the Federal Meat Inspection Act (“FMIA”).13
`The FMIA’s express preemption clause preempts state-law requirements
`that are “in addition to” or “different than” the rigorous and extensive fed-
`eral requirements under the statute. See 21 U.S.C. § 678; see also, e.g., 9
`C.F.R. § 416.5(c) (setting federal requirements under the FMIA regarding
`cleanliness, protective attire, and “[d]isease control”). As construed by the
`Supreme Court, “[t]he FMIA’s preemption clause sweeps widely” and “pre-
`vents a State from imposing any additional or different—even if non-con-
`flicting—requirements that fall within the scope of the Act.” Nat’l Meat
`Ass’n v. Harris, 565 U.S. 452, 459-60 (2012). Plaintiffs here would use state
`tort law to impose additional and different requirements at the Waterloo
`facility. See Fields, 2021 WL 510620, at *5 (holding that Tyson “put forth a
`colorable federal defense under the [federal Poultry Products Inspection
`Act’s substantially similar preemption provision], thereby satisfying the
`federal officer removal test laid out in Latiolais”).
`• Preemption and immunity under the DPA and the extensive federal di-
`rectives. Plaintiffs’ claims are also preempted by the DPA and the extensive
`federal supervision and control under which Tyson was operating. Congress
`enacted the DPA to preserve “the security of the United States” by ensuring
`“the ability of the domestic industrial base to supply materials and services
`for the national defense and to prepare for and respond to . . . natural or
`
`13 The Waterloo facility is subject to regulation under the FMIA. See FSIS Meat, Poul-
`Inspection Directory at 553-54
`(June 7, 2021),
`try and Egg Product
`https://www.fsis.usda.gov/sites/default/files/media_file/2021-06/MPI_Direc-
`tory_by_Establishment_Name_0.pdf (identifying the Waterloo facility as establish-
`ment numbers M244W and M21397 + P21397).
`- 14 -
`
`
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`man-caused disasters,” and in particular to “provide for the protection and
`restoration of domestic critical infrastructure operations under emergency
`conditions.” 50 U.S.C. § 4502(a)(1), (a)(2)(C). The DPA grants the President
`wide latitude to “take appropriate steps to maintain and enhance the do-
`mestic industrial base,” id. § 4502(a)(4), including “to allocate materials,
`services, and facilities in such manner, upon such conditions, and to such
`extent as he shall deem necessary or appropriate” during a national emer-
`gency, id. § 4511(a). This broad grant of authority preempts any attempt by
`a state to impose its own regulations on “domestic critical infrastructure”
`industries when the President has done so under the DPA, id.
`§ 4502(a)(2)(C); see also Crosby v. National Foreign Trade Council, 530 U.S.
`363, 376 (2000), and provides an express defense against suits like this for
`actions taken in compliance with orders issued under the DPA, 50 U.S.C.
`§ 4557. The Petition here seeks to impose state regulation that conflicts
`with the President’s express directives under the DPA requiring Tyson to
`assist the nation during a national disaster by (1) continuing to operate
`(2) pursuant to federal operational requirements.
`Defendants are “persons.” All Defendants, including the Tyson entities, are
`
`“persons” under 28 U.S.C. § 1442 because the term “includes corporations.” Jacks,
`701 F.3d at 1230 n.3 (citing Watson, 551 U.S. at 152-53).14
`
`
`14 Although all Defendants jointly remove this case, only one Defendant needs to es-
`tablish a right to remove under 28 U.S.C. § 1442(a)(1), and “the entire case [is]
`deemed removable, such that [Plaintiffs’] claims against all other defendants . . . will
`be heard in federal court as well.” Morgan v. Huntington Ingalls, Inc., 879 F.3d 602,
`606 (5th Cir. 2018); see also 14C Charles Alan Wright & Arthur R. Miller, Fed. Prac.
`& Proc. § 3726 (Rev. 4th ed.) (same).
`
`
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`The Court also has federal question jurisdiction.
`II.
`This case is properly removed under 28 U.S.C. § 1331 because it “aris[es] un-
`
`der” federal law. See Wullschleger v. Royal Canin U.S.A., Inc., 953 F.3d 519, 521 (8th
`Cir. 2020), cert. denied, 141 S. Ct. 621 (2020); Bd. of Comm’rs of Se. La. Flood Prot.
`Auth.-E. v. Tenn. Gas Pipeline Co., 850 F.3d 714, 721-22 (5th Cir. 2017). Although
`Plaintiffs’ cause of action is styled as a state-law claim, this Court has federal ques-
`tion jurisdiction because the claim (1) “necessarily” raises an issue of federal law that
`is (2) “actually disputed” and (3) “substantial,” and (4) “which a federal forum may
`entertain without disturbing any congressionally approved balance of federal and
`state judicial responsibilities.” Grable & Sons Metal Prods., Inc. v. Darue Eng’g &
`Mfg., 545 U.S. 308, 314 (2005); see also Wullschleger, 953