`
`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