throbber
Case 2:20-cv-01160-MV-CG Document 1 Filed 11/06/20 Page 1 of 31
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW MEXICO
`
`
`
`
`
`
`STAMPEDE MEAT, INC.,
`
`
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`
`
`
`
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`
`
`MICHELLE LUJAN GRISHAM, in her official
`capacity as GOVERNOR OF THE STATE OF
`NEW MEXICO, HECTOR BALDERAS, in his
`official capacity as the ATTORNEY GENERAL
`FOR THE STATE OF NEW MEXICO, BILLY
`J. JIMENEZ, in his official capacity as the
`ACTING CABINET SECRETARY OF THE
`NEW MEXICO DEPARTMENT OF HEALTH,
`JAMES C. KENNEY, in his official capacity as
`the CABINET SECRETARY OF THE
`
`NEW MEXICO ENVIRONMENT
`
`
`DEPARTMENT, THE NEW MEXICO
`
`ENVIRONMENT DEPARTMENT and THE
`NEW MEXICO DEPARTMENT OF HEALTH,
`
`
`
`
`
`
`
`
`Defendants.
`
`
`
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`
`Case No.:
`
`
`
`
`
`
`
`
`
`
`
`VERIFIED COMPLAINT AND APPLICATION FOR
`DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF
`
`COMES NOW, Plaintiff, Stampede Meat, Inc., (“Stampede Meat” or the “Company”), and
`
`in conjunction with its Emergency Request for Hearing, files this Verified Complaint against
`
`Defendants Michelle Lujan Grisham, in her official capacity as Governor of the State of New
`
`Mexico, Hector Balderas, in his official capacity as the Attorney General for the State of New
`
`Mexico, Billy J. Jimenez, in his official capacity as Acting Cabinet Secretary of the New Mexico
`
`Department of Health, James C. Kenney, in his official capacity as the Cabinet Secretary of the
`
`New Mexico Environment Department, the New Mexico Environment Department and the New
`
`Mexico Department of Health (collectively, “Defendants”), and states as follows:
`
`
`
`

`

`Case 2:20-cv-01160-MV-CG Document 1 Filed 11/06/20 Page 2 of 31
`
`INTRODUCTION
`
`1.
`
`Stampede Meat is one of the United States’ largest manufacturer of portion-
`
`controlled proteins (including beef, chicken, turkey and pork) and meals (which include
`
`vegetables, soups and alternative proteins). Stampede Meat takes seriously its critical role in
`
`helping feed the nation during the coronavirus (“COVID-19”) pandemic. From the outset of the
`
`pandemic, however, Stampede Meat has focused not just on providing critical food resources to
`
`the nation—it has also prioritized the health and safety of Stampede Meat’s significant workforce.
`
`Indeed, Stampede Meat developed and implemented a COVID-19 response plan well before any
`
`governmental body required it to do so, and Stampede Meat has repeatedly updated its plan to
`
`ensure it fully complies with—and in many instances exceeds—all applicable federal, state and
`
`local COVID-19 guidelines. In fact, the New Mexico Department of Health, including Defendant
`
`Jimenez personally, and the New Mexico Occupational Safety and Health Administration (“New
`
`Mexico OSHA”) approved Stampede Meat’s COVID-19 plan in early May 2020. Throughout the
`
`pandemic, Stampede Meat has deftly balanced its role as a vital piece of critical national
`
`infrastructure with its commitment to the safety and wellbeing of its employees and local
`
`community.
`
`2.
`
`The State of New Mexico has consistently shared the view of the Federal
`
`Government that Stampede Meat is critical to the Nation’s response to this pandemic, repeatedly
`
`designating Stampede Meat an “Essential Business.” Yet three days ago, the Defendants sought
`
`to immediately close Stampede Meat for fourteen days pursuant to a recently issued public health
`
`order purportedly requiring closure of certain businesses experiencing four or more positive
`
`COVID-19 tests in a fourteen day period—which for Stampede Meat represents less than 1% of
`
`its Sunland Park workforce. The Defendants seem to have based this determination on an
`
`unsupported (and unstated) assertion that Stampede Meat is a “business that poses a significant
`
`2
`
`

`

`Case 2:20-cv-01160-MV-CG Document 1 Filed 11/06/20 Page 3 of 31
`
`health risk, as determined by the Department of Health.” Despite repeated inquiries, Defendants
`
`have failed to provide the basis of that determination. Additionally, even when the United States
`
`Department of Agriculture (“USDA”) offered to speak with the Department of Health about
`
`lending testing resources to Stampede Meat to enable it to more efficiently and effectively identify
`
`potentially infected employees, while still remaining operational to address the nation’s food
`
`supply, the Department of Health, through Defendant Jimenez, declined.
`
`3.
`
`Defendants’ action is preempted by an Executive Order signed by the President on
`
`April 28, 2020, prohibiting state authorities from directing meat and poultry processing facilities—
`
`like Stampede Meat—to close when that facility is in compliance with applicable federal
`
`guidelines, as is Stampede Meat. The Stampede Meat Closure Order also violates the U.S.
`
`Constitution and New Mexico Constitution because it has been issued in an arbitrary and
`
`capricious manner, absent due process.
`
`4.
`
`Stampede Meat, its workforce, and the nation will suffer irreparable harm absent
`
`an order freezing the status quo ante. Further, Stampede Meat is likely to succeed on the merits
`
`of its claim for a declaratory judgment and the balance of the equities favors a restraining order in
`
`this case; one preventing Defendants from closing Stampede Meat’s operations, even as it will
`
`allow time for Stampede Meat to address any concerns Defendants may have regarding the safety
`
`of its operations and compliance with applicable COVID-19 guidance. Stampede Meat has
`
`already attempted—repeatedly—to work with the Defendants to address any legitimate concerns.
`
`It has been met with silence aside from this most recent direction to fully shut down operations—
`
`direction that ignores the express orders of the President of the United States and the Secretary of
`
`Agriculture—or risk civil and criminal penalties.
`
`
`
`
`
`3
`
`

`

`Case 2:20-cv-01160-MV-CG Document 1 Filed 11/06/20 Page 4 of 31
`
`PARTIES
`
`5.
`
`Plaintiff Stampede Meat, Inc., a Delaware corporation with its principal place of
`
`business in Bridgeview, Illinois, is one of the United States’ largest manufacturer of portion-
`
`controlled proteins (including beef, chicken, turkey and pork) and meals (which include
`
`vegetables, soups and alternative proteins). Stampede Meat specializes in custom-made, center-
`
`of-the-plate beef, pork and chicken products for the needs of restaurants, hospitality, retail,
`
`supermarket, casino, home delivery, and other industries. Its customers include Costco, Wal-Mart,
`
`Firehouse Subs, Applebee’s, Panda Express, International House of Pancakes, Denny’s, Schwan’s
`
`Foods and other major restaurants and food retailers throughout New Mexico and the country. In
`
`many instances Stampede is the exclusive supplier of these products, leaving the aforementioned
`
`customers without a supply source in the event of a shut down. Stampede Meat serves its
`
`customers through four production facilities, including one in Sunland Park, New Mexico – which
`
`Stampede Meat opened in December 2018. That facility has an annual capacity of 100 million
`
`pounds of meat. Nationwide, Stampede Meat’s team consists of approximately 1600 employees
`
`and temporary workers. Stampede Meat’s Sunland Park workforce varies depending on
`
`production needs. During the past two weeks, between 550-575 team members worked at
`
`Stampede Meat’s Sunland Park facility.
`
`6.
`
`Defendant Michelle Lujan Grisham is the Governor of the State of New Mexico
`
`and is named in her official capacity. Defendant Lujan Grisham may be served at the New Mexico
`
`State Capital, 490 Old Santa Fe Trail, Room 400, Santa Fe, New Mexico 87501.
`
`7.
`
`Defendant Hector Balderas is the Attorney General for the State of New Mexico
`
`and is named in his official capacity. Defendant Balderas may be served at 408 Galisteo Street,
`
`Santa Fe, New Mexico 87501.
`
`4
`
`

`

`Case 2:20-cv-01160-MV-CG Document 1 Filed 11/06/20 Page 5 of 31
`
`8.
`
`Defendant Billy J. Jimenez is the Acting Cabinet Secretary of the New Mexico
`
`Department of Health and is named in his official capacity. He may be served at 1190 S. St.
`
`Francis Drive, Santa Fe, New Mexico 87505.
`
`9.
`
`Defendant James C. Kenney is the Cabinet Secretary of the New Mexico
`
`Environment Department and is named in his official capacity. He may be served at 1190 St.
`
`Francis Drive, Santa Fe, New Mexico 87505.
`
`10.
`
`Defendant New Mexico Environment Department may be served at 1190 S. St.
`
`Francis Drive, Santa Fe, New Mexico 87505
`
`11.
`
`Defendant New Mexico Department of Health may be served at 1190 S. St. Francis
`
`Drive, Santa Fe, New Mexico 87505.
`
`JURISDICTION AND VENUE
`
`12.
`
`This Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. §
`
`1331 because Stampede Meat’s claims arise under the Constitution and laws of the United States
`
`of America.
`
`13.
`
`Venue is proper in this Court pursuant to 28 U.S.C. §1391(b) because all defendants
`
`are residents of the State of New Mexico and a substantial part of the events or omissions giving
`
`rise to the claims occurred in the District of New Mexico.
`
`FACTUAL BACKGROUND
`A. Stampede Meat is an Essential Business Providing Food Supplies to the Nation
`
`14.
`
`Stampede Meat is part of the nation’s critical food supply chain and has a
`
`responsibility during the ongoing pandemic to continue providing meat, poultry, turkey, pork,
`
`alternative proteins and other food to Americans in New Mexico and throughout the country.
`
`Pursuant to the U.S. Cybersecurity & Infrastructure Security Agency (“CISA”) guidance,
`
`Stampede Meat is an essential business, and its workforce is part of the “Critical Infrastructure
`
`5
`
`

`

`Case 2:20-cv-01160-MV-CG Document 1 Filed 11/06/20 Page 6 of 31
`
`Workforce,” meaning that Stampede Meat must remain open and continue in-person work during
`
`this COVID-19 pandemic. See, Advisory Memorandum from Christopher C. Krebs, Director of
`
`Cybersecurity and Infrastructure Security Agency on Guidance on Essential Critical Infrastructure
`
`Workers, herein attached as Exhibit 1.
`
`15.
`
`In response to the closure of meat and poultry processing plants throughout the
`
`country, President Trump invoked the Defense Production Act (“DPA”) and issued an Executive
`
`Order on April 28, 2020 requiring meat and poultry plants, like Stampede Meat, to remain open to
`
`prevent food shortages during the pandemic. See, Exec. Order No. 13,917, 85 C.F.R. 26313
`
`(2020), herein attached as Exhibit 2. Additionally, New Mexico deemed Stampede an “essential
`
`business” under its COVID-19 public health orders, including the Department of Health’s October
`
`22 Order ( the “October 22, 2020 Order”). See, New Mexico Department of Health, Public Health
`
`Order (Oct. 22, 2020), herein attached as Exhibit 3.
`
`16.
`
`In issuing the April 28 Executive Order, the President emphasized 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.” Ex. 2. Importantly,
`
`the President wrote:
`
`Such closures [of beef, pork, and poultry processors] threaten the continued
`functioning of the national meat and poultry supply chain, undermining critical
`infrastructure during the national emergency. Given the high volume of meat and
`poultry processed by many facilities, any unnecessary closures can quickly have a
`large effect on the food supply chain. For example, closure of a single large beef
`processing facility can result in the loss of over 10 million individual servings of
`beef in a single day. Similarly, under established supply chains, closure of a single
`meat or poultry processing facility can severely disrupt the supply of protein to an
`entire grocery store chain.
`
`Id.
`
`17.
`
`On April 28, 2020, the Secretary of Agriculture issued a statement regarding the
`
`President’s April 28 Executive Order, affirming that the Department of Agriculture would operate
`
`6
`
`

`

`Case 2:20-cv-01160-MV-CG Document 1 Filed 11/06/20 Page 7 of 31
`
`in accordance with Centers for Disease and Prevention Control (“CDC”) and U.S. Occupational
`
`Safety and Health Administration (“federal OSHA”) guidance:
`
`The Centers for Disease Control and Prevention (CDC) of the Department of Health and
`Human Services and the Occupational Safety and Health Administration (OSHA) of the
`Department of Labor have put out guidance for plants to implement to help ensure
`employee safety to reopen plants or to continue to operate those still open. Under the
`Executive Order and the authority of the Defense Production Act, USDA will work with
`meat processing to affirm they will operate in accordance with the CDC and OSHA
`guidance, and then work with state and local officials to ensure that these plants are
`allowed to operate to produce the meat protein that Americans need. USDA will continue
`to work with the CDC, OSHA, FDA, and state and local officials to ensure that facilities
`implementing this guidance to keep employees safe can continue operating.
`
`See, Statement from Sonny Perdue, U.S. Secretary of Agriculture, USDA to Implement President
`
`Trump’s Executive Order on Meat and Poultry Processors (Apr. 28, 2020), emphasis added, herein
`
`attached as Exhibit 4.
`
`B. Stampede Meat Has Remained A Leader in Responding to the COVID-19 Pandemic
`
`18.
`
`Stampede Meat recognizes its responsibility to help feed the public and takes great
`
`pride in being able to serve the country during its time of need. Stampede Meat is also firmly
`
`committed to providing a safe work environment for its team members, who are heroes on the
`
`front line of sustaining operations during a worldwide pandemic.
`
`19.
`
`Accordingly, Stampede Meat has been at the forefront of the COVID-19 response.
`
`In early March 2020, before New Mexico, Illinois or even the federal government issued any
`
`significant directives regarding operations during the pandemic, Stampede Meat formed a COVID-
`
`19 response team—consisting of, among others, its human resources, safety, supply chain and
`
`operations departments—and released its first COVID-19 response plan.
`
`20.
`
`Stampede Meat’s COVID-19 response team meets each week, and regularly
`
`consults with outside advisors to monitor evolving CDC, federal OSHA, United States Department
`
`of Agriculture (“USDA”), as well as guidelines issued by New Mexico, Illinois, and applicable
`
`7
`
`

`

`Case 2:20-cv-01160-MV-CG Document 1 Filed 11/06/20 Page 8 of 31
`
`local entities. As a result, Stampede Meat has revised its response plan numerous times to ensure
`
`it complies with applicable guidelines and to protect the Stampede Meat family and anyone who
`
`enters its facilities. See, Stampede Meat’s Current COVID-19 Response Plan, revised October 30,
`
`2020, herein attached as Exhibit 5. This response plan includes more than 80 safety measures,
`
`including, for example:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`conducting daily screening and temperature checks;
`
`requiring employees to wear three-tiered facial protection (including face
`masks, neck warmers pulled over their nose and mouth, and plexiglass face
`shields);
`
`sanitizing high touch-point areas every 30 minutes;
`
`modifying procedures to increase social distancing throughout its facilities;
`
`providing plastic dividers in cafeteria area;
`
`implementing aggressive contact tracing (including through the use of video
`to trace interactions) and quarantining protocols;
`
`nightly CDC-compliant sanitizing of the entire facility; and
`
`taking various steps to maximize social distancing, including reconfiguring
`some areas of production.
`
`Id.
`
`C. Stampede Meat Complies With—and Often Exceeds—All Applicable COVID-19
`Health and Safety Protocols
`
`21.
`
`The CDC and federal OSHA have issued joint guidance outlining the protocols
`
`meat and poultry processors should follow to protect their workforces from COVID-19. See,
`
`Center for Disease Control & Occupational Safety and Health Administration, Joint Meat
`
`Processing Guidance, herein attached as Exhibit 6. Stampede Meat’s COVID-19 response plan
`
`meets and, in many areas, goes beyond this joint guidance. For example, Stampede Meat’s
`
`production employees wear three-tiered facial protection. Moreover, Stampede Meat’s Sunland
`
`8
`
`

`

`Case 2:20-cv-01160-MV-CG Document 1 Filed 11/06/20 Page 9 of 31
`
`Park facility is not a cramped, close-quartered operation, as is the case with many other meat
`
`processing facilities. On the contrary, photos taken during operations on November 4 show the
`
`Sunland Park facility and operations are configured to allow for employees to socially distance the
`
`majority of the time. See, Stampede Meat Facility Photograph Depictions, herein attached as
`
`Exhibit 7.
`
`22.
`
`In early May 2020, the Department of Health and New Mexico OSHA reviewed
`
`Stampede Meat’s COVID-19 response plan. Stampede Meat provided both agencies with the CDC
`
`and federal OSHA’s Joint Meat Processing Guidance and encouraged them to compare Stampede
`
`Meat’s response plan to these federal requirements in addition to analyzing the plan in the context
`
`of New Mexico’s guidelines. See, Email between Michael Palmer, Stampede Meat’s Attorney,
`
`Andrew P. Knight, Assistant General Counsel for the New Mexico Environment Department, and
`
`Billy Jimenez, former Department of Health General Counsel and current Acting Secretary, May
`
`5, 2020, herein attached as Exhibit 8.
`
`23.
`
`New Mexico OSHA and the Department of Health approved Stampede Meat’s
`
`response plan in early May 2020 and has never revoked that approval or raised any concerns with
`
`Stampede Meat or its counsel about the Company’s COVID-19 response plan. To the contrary,
`
`even after that approval was received, Stampede Meat continued to add more safety protocols
`
`above and beyond those required.
`
`24.
`
`In addition, Stampede Meat partnered with the Department of Health to conduct
`
`diagnostic COVID-19 testing of its entire workforce three times in May 2020 to identify infected,
`
`asymptomatic team members and further reduce potential exposure in the workplace. During the
`
`first round of testing, 7.5% of employees tested positive, of which 93% were asymptomatic.
`
`During the second round of testing, 4.7% of employees tested positive; all were asymptomatic.
`
`9
`
`

`

`Case 2:20-cv-01160-MV-CG Document 1 Filed 11/06/20 Page 10 of 31
`
`The final test resulted in only one new positive case. The Department of Health effectively ended
`
`its testing protocol with Stampede Meat. In doing so, Aja Sanzone, MD, Infectious Disease Bureau
`
`Medical Director, praised Stampede Meat’s collaboration with the Department of Health and its
`
`testing protocol, writing that it “was instrumental in the prevention of further spread within the
`
`facility and the community and I believe your success will serve as a model to other businesses
`
`not only locally but even nationally.” See, Email from Aja Sanzone, Infectious Disease Bureau
`
`Medical Director, to Michael Palmer, Stampede’s Attorney, herein attached as Exhibit 9.
`
`D. The Department of Health’s October 22, 2020 Public Health Order
`
`25.
`
`On October 22, 2020 the Department of Health, through Defendant Jimenez and
`
`under authority provided by Defendant Grisham, issued a revised Public Health Order (the
`
`“October 22, 2020 Order”, Ex. 3). In it, Defendants reiterated the designation of “Essential
`
`businesses” to include “food cultivation, processing, or packaging operations,” such as Stampede
`
`Meat. The October 22 Order also defines a host of other categories of business, including “food
`
`and drink establishments,” “close-contact businesses,” “places of lodging” and “retail spaces.”
`
`None of those categories include Stampede Meat.
`
`26.
`
`The October 22, 2020 Order also states that any “food and drink establishment,”
`
`“close-contact business,” “place of lodging,” “retail space” or “other business that poses a
`
`significant public health risk, as determined by the Department of Health” must close when four
`
`employees receive positive rapid response COVID-19 tests within a rolling 14-day period. (Ex.
`
`3, ¶ 15.). The October 22, 2020 Order does not provide that such a 14-day closure mandate is
`
`applicable to “Essential businesses.” It further does not define how the Department of Health and
`
`Defendant Jimenez will determine if a business “poses a significant public health risk,” or how
`
`such a determination can be challenged. The October 22, 2020 Order does, however, state that
`
`10
`
`

`

`Case 2:20-cv-01160-MV-CG Document 1 Filed 11/06/20 Page 11 of 31
`
`certain “retail spaces” may be allowed to stay open even after four positive tests if it is determined
`
`that the “business is a necessary provider of goods and services” within the community.
`
`E. The Department of Health Sends a Closure Order to Stampede Meat
`
`27.
`
`Despite (1) Stampede Meat’s continued efforts to be a leader in the response to the
`
`COVID-19 pandemic; (2) the State of New Mexico’s designation of Stampede Meat as an essential
`
`business; (3) the President of the United States’ designation of Stampede Meat as an essential
`
`business; (4) the Department of Health’s explicit praise of Stampede Meat’s health and safety
`
`protocols; and (5) the exclusion of “Essential businesses” from the October 22, 2020 Order’s
`
`mandate of closures after certain positive tests, on November 3, 2020, Defendants served
`
`Stampede Meat with a “Notice of Immediate Closure Pursuant to Public Health Order” (“Stampede
`
`Closure Order”). See, Letter from Billy Jimenez, Acting Cabinet Secretary of the New Mexico
`
`Department of Health, to Stampede Met, Inc. regarding closure notice, herein attached as Exhibit
`
`10.
`
`28.
`
`In the Stampede Closure Order, the Department of Health does not state that
`
`Stampede Meat poses a “significant public health risk,” or that it fits into any of the other defined
`
`businesses to which the closure directive applies. At this writing Defendants have, at no point,
`
`notified Stampede Meat of any basis to change its prior departmental determination that Stampede
`
`Meat’s response to COVID-19 was not only approved, but worthy of praise.
`
`29.
`
`And while it is true that during the 14 days prior to November 4, more than four
`
`Stampede Meat team members tested positive for COVID-19, each of those individuals are
`
`currently quarantining and not present in Stampede Meat’s workplace. Moreover, Stampede Meat
`
`has conducted contact tracing and required all of those who came in exposed close contact with
`
`the infected individuals to also quarantine. To Stampede Meat’s knowledge, none of its current,
`
`active workforce has been infected with COVID-19.
`
`11
`
`

`

`Case 2:20-cv-01160-MV-CG Document 1 Filed 11/06/20 Page 12 of 31
`
`30. Moreover, there is no indication that the Stampede Meat facility is either a source
`
`of COVID-19 spread, nor a significant public health risk. To the contrary, given the significant
`
`safety protocols, the Stampede Meat facility is likely a safer location than outside of the facility.
`
`Inside the facility, three layers of Personal Protective Equipment are required, plastic dividers are
`
`utilized and significant cleaning and sanitizing is undertaken.
`
`F. The Department of Health Refuses to Engage with Stampede Meat Regarding the
`Stampede Closure Order
`
`31.
`
`The Stampede Closure Order conflicts with, and is therefore preempted by,
`
`President Trump’s invocation of the DPA and his April 28, 2020 Executive Order requiring the
`
`Secretary of Agriculture to take all appropriate measures to ensure that meat and poultry processors
`
`continue operations consistent with CDC and federal OSHA’s Joint Meat Processing Guidance.
`
`32.
`
`Indeed, The Solicitor of Labor at the U.S. Department of Labor and the Principal
`
`Deputy Assistant Secretary for OSHA made a joint statement explaining that “because of the
`
`President’s invocation of the DPA, no part of the Joint Meat Processing Guidance should be
`
`construed to indicate that state and local authorities may direct a meat and poultry processing
`
`facility to close, to remain closed, or to operate in accordance with procedures other than those
`
`provided for in this Guidance.” See, Press Release, U.S. Department of Labor, Statement of
`
`Enforcement Policy by Solicitor of Labor Kate O’Scannlain and Principle Deputy Assistant
`
`Secretary for OSHA Loren Sweatt Regarding Meat and Poultry Processing Facilities (April 28,
`
`2020), herein attached as Exhibit 11.
`
`33.
`
`Yet the new Stampede Closure Order puts Stampede Meat in the potential dilemma
`
`of having to determine whether it will comply with Defendants’ state-issued directive, or whether
`
`it should comply with the plain meaning (and superior) order from the President of the United
`
`12
`
`

`

`Case 2:20-cv-01160-MV-CG Document 1 Filed 11/06/20 Page 13 of 31
`
`States to comply with federal regulations and stay open, providing critical resources for the
`
`nation’s food supply.
`
`34.
`
`On November 4, Stampede Meat reminded the Department of Health of the above
`
`context, including the Department of Health’s and New Mexico OSHA’s approval of its COVID-
`
`19 response plan, the Company’s compliance with CDC and federal OSHA’s Joint Meat
`
`Processing Guidance, and the fact that the relevant infected employees appear to have contracted
`
`the virus outside of work. Stampede Meat also invited the Department of Health to review its
`
`response plan and come to its Sunland Park facility to analyze in person all of the Company’s
`
`safety protocols. Stampede Meat offered to again partner with the Department of Health to test its
`
`entire Sunland Park workforce every two weeks to identify any asymptomatic, but infected team
`
`members, so they, too, could be quarantined. Finally, Stampede Meat offered to reduce its
`
`operations by 30% to allow for increased social distancing at work, while minimizing any negative
`
`impact to the food supply that Stampede Meat provides as an essential business. See, Email
`
`between Michael Palmer, Attorney for Stampede Meat, and Christopher Woodward, Acting
`
`General Counsel for New Mexico Department of Health (Nov. 5, 2020), herein attached as Exhibit
`
`12.
`
`35.
`
`Proactively, on November 5, Stampede Meat operated with a 30% reduction in its
`
`workforce, seeking to assuage any concerns that Defendants may have, but also seeking to avoid
`
`catastrophic losses to the Company, its customers, consumers, and the community—not to mention
`
`the significant negative impact on the nation’s food supply. However, after Stampede Meat’s
`
`operations began on November 5, the Department of Health and Defendant Jimenez rejected the
`
`Company’s proposal for continuing reduced operations, testing, and additional oversight as a
`
`13
`
`

`

`Case 2:20-cv-01160-MV-CG Document 1 Filed 11/06/20 Page 14 of 31
`
`method for resolving any of Defendants’ concerns about the health risks posed by Stampede Meat
`
`continuing to operate. (Ex. 12.).
`
`36.
`
`During discussions with the Defendants about implementing an aggressive testing
`
`protocol as a possible solution here, the Department of Health indicated that it did not have
`
`sufficient resources to conduct testing at Stampede Meat. In response, Stampede Meat, through
`
`counsel, contacted Shawna Newsome, Chief of Staff, Office of Food Safety at USDA.
`
`Ms. Newsome said the federal government may be able to assist with testing resources, which
`
`would allow Stampede Meat to test its entire workforce, identifying any asymptomatic, but
`
`infected workers, so they can quarantine, and continue operating. Stampede Meat’s counsel
`
`communicated this suggestion to the Department of Health during the afternoon of November 5
`
`and offered to arrange a call between the Department of Health, Ms. Newsome and Stampede
`
`Meat’s counsel to explore this option. The Department of Health and Defendant Jimenez did not
`
`participate (though other Defendants did). (Ex. 12.)
`
`G. Defendants are Issuing Closure Orders in an Arbitrary and Capricious Manner
`
`37.
`
`Defendants have taken an ad hoc, arbitrary approach to its closure notices. Indeed,
`
`its Rapid Response Watch List, which details businesses and the number of positive COVID-19
`
`tests at each, contains a host of other businesses with more than 4 positive tests, yet only three—
`
`including Stampede Meat—have been ordered to close. Other businesses which handle food have
`
`been allowed to stay open despite such positive tests—yet Defendants proceeded to shut down a
`
`critical element of the local, regional and national food supply chain. Moreover, because the
`
`October 22, 2020 Order places the same positive test threshold (four) on businesses regardless of
`
`size, nature or without consideration of their efforts to meet applicable federal and state guidelines,
`
`Defendants’ closure action necessarily causes a disparate impact to one entity. Indeed, for a
`
`14
`
`

`

`Case 2:20-cv-01160-MV-CG Document 1 Filed 11/06/20 Page 15 of 31
`
`company like Stampede Meat, it could be well below the State’s COVID-19 infection rate and yet
`
`still exceed the four-test threshold just because it employs more than 500 people.
`
`H. Stampede Meat—and Many Others—Will Suffer Irreparable Harm If Forced to
`Close
`
`38.
`
`Closing Stampede Meat’s operations until November 17 will undoubtedly cause
`
`irreparable harm. Millions of pounds of meat will need to be destroyed if Stampede Meat is forced
`
`to close. Stampede Meat manufactures a million pounds of meat and poultry each week in its
`
`Sunland Park facility for major restaurants, grocery stores, and other food distributors in New
`
`Mexico and throughout the country. Closing Stampede Meat’s plant will leave orders unfilled or
`
`shorted. Given that many of these products are exclusively produced by Stampede, this will lead
`
`to Stampede losing customers, as it has in the past. For example, Stampede Meat complied with
`
`the Department of Health’s demands that it significantly reduce its operations prior to the first
`
`round of COVID-19 testing in May 2020. That reduction forced Stampede Meat to short orders,
`
`which led to Sam’s Club pulling its business from the Company. New Mexico has resisted efforts
`
`to reimburse companies for losses resulting from COVID-19 shutdowns. Similarly, Stampede
`
`Meat’s insurance has rejected business interruption claims. Accordingly, Stampede Meat would
`
`have no reasonable ability to recoup its losses and, therefore, no adequate remedy at law.
`
`39.
`
`Closing Stampede Meat will also have detrimental impacts on the food supply
`
`available in New Mexico and throughout the country. As the country has already experienced,
`
`shuttering food processing plants leads to food shortages. Indeed, that is precisely why the
`
`President issued the April 28 Executive Order and invoked the DPA—to prevent a scenario in
`
`which citizens in this country have to fight both a pandemic and a shortage of critical food supplies.
`
`The Department of Health is attempting to countermand that federal order, in the process causing
`
`unnecessary and unwarranted damage.
`
`15
`
`

`

`Case 2:20-cv-01160-MV-CG Document 1 Filed 11/06/20 Page 16 of 31
`
`40.
`
`Closing Stampede Meat will also negatively impact consumers, Stampede Meat’s
`
`workforce and their families, the Sunland Park community, New Mexico and the nation. It is well-
`
`documented that in May 2020, Costco and Wal-Mart—both Stampede Meat customers—and many
`
`other supermarkets rationed meat and poultry as a result of supplier shutdowns. Allowing the
`
`Department of Health to ignore the President’s Executive Order and close Stampede Meat and
`
`other meat and poultry processing companies will lead to similar food shortages and rationing.
`
`Moreover, Stampede Meat’s loss of business will force it to reduce its workforce and reduce
`
`employment opportunities for the surrounding community.
`
`COUNT I
`VIOLATION OF THE UNITED STATES CONSTITUTION
`A. The April 28, 2020 Executive Order Preempts the October 22, 2020 Order and the
`Stampede Closure Order
`
`41.
`
`Stampede Meat incorporates by reference and re-alleges the allegations contained
`
`in Paragraphs 1 through 38 as if fully stated herein.
`
`42.
`
`The Supremacy Clause of the United States Constitution provides that federal law
`
`“shall be the supreme Law of the Land; and t

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket