throbber
Case 9:20-cv-00184-MJT Document 40 Filed 08/12/21 Page 1 of 16 PageID #: 1077
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`ROLANDETTE GLENN ET AL.
`
`v.
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`TYSON FOODS, INC. ET AL.
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`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`LUFKIN DIVISION
`






`
`
`
`ORDER GRANTING PLAINTIFFS’ MOTION TO REMAND
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`
`Pending before the Court is Plaintiffs’ Motion to Remand. (Doc. #13). Plaintiffs seek to
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`
`CASE NO. 9:20-CV-184
`
`JUDGE MICHAEL TRUNCALE
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`
`
`
`
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`have this case remanded to state court, alleging that the defendants, Tyson Foods, Inc. (“Tyson”),
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`Jason Orsak, Erica Anthony, and Maria Cruz, have not carried their burden to establish federal
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`officer or federal question jurisdiction. After considering the motion, arguments from the parties,
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`and the applicable law, the Court grants Plaintiffs’ Motion to Remand. (Doc. #13).
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`I.
`
`BACKGROUND
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`Plaintiffs are eleven past and present workers of Defendant Tyson who allege that they
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`contracted COVID-19 while working at a Tyson poultry-processing facility and a personal
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`representative of a twelfth worker who allegedly died as a result of contracting the virus at work.
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`(Doc. #3, at 3–4). More specifically, Plaintiffs allege that despite a stay-at-home order issued by
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`Governor Abbott that went into effect on April 2, 2020, Plaintiffs were required to continue
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`working at the Tyson meatpacking plant in Center, Texas (“Center Facility”). Id. at 5. They assert
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`that both before and after the April 2 stay-at-home order, Tyson failed to take adequate precautions
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`to protect the workers at its meatpacking facilities from COVID-19. Id.
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`At all relevant times during the events alleged the first amended petition, Defendant Jason
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`Orsak was a complex safety manager for Tyson and Defendants Erica Anthony and Maria Cruz
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`
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`1
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`

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`Case 9:20-cv-00184-MJT Document 40 Filed 08/12/21 Page 2 of 16 PageID #: 1078
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`were safety coordinators for Tyson. Id. at 4. Plaintiffs allege those defendants were directly
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`responsible for implementing and enforcing adequate safety measures to prevent the spread of
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`COVID-19 but failed to do so. Id. at 5–6. More specifically, Plaintiffs allege that Orsak and
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`Anthony failed to issue masks to employees, institute six feet barriers between employees, limit
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`contact between employees, and create rideshare alternatives to the Center Facility’s bus system.
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`Id. at 6. Allegedly, as a direct result of the negligence and gross negligence of Defendants,
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`Plaintiffs contracted COVID-19 at the Center Facility and have experienced significant injuries,
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`including death. Id.
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`On July 23, 2020, Plaintiffs filed their first amended petition in the 273rd Judicial District
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`of Shelby County, Texas. The petition asserts a negligence and gross negligence claim against all
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`Defendants, a premises liability claim against Tyson, and a wrongful death and survival claim
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`against all Defendants by Plaintiff Clifford Bell, individually and as the personal representative
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`for the estate of Beverly Whitsey. Id. at 6–9.
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`Tyson then removed the action to federal court asserting federal officer and federal
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`question jurisdiction. (Doc. #1). It asserts that because Tyson was under an April 28, 2020,
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`Executive Order to continue operations pursuant to the supervision of the federal government and
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`pursuant to federal guidelines and directives, federal court is the proper forum for resolving the
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`case. Id. at 3. Plaintiffs then filed the pending motion to remand alleging that Defendants had not
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`met their burden to prove federal jurisdiction is proper. (Doc. #13).1
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`II.
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`LEGAL STANDARD
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`
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`Federal courts are courts of limited jurisdiction and may only hear a case when jurisdiction
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`is both authorized by the United States Constitution and confirmed by statute. Griffin v. Lee, 621
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`1 Although there are both corporate and individual defendants, all are represented by the same attorneys. For clarity
`purposes, the Court will refer to all defendants as Tyson.
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`
`
`2
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`

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`Case 9:20-cv-00184-MJT Document 40 Filed 08/12/21 Page 3 of 16 PageID #: 1079
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`F.3d 380, 388 (5th Cir. 2010). Removal to federal court is proper when the federal court would
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`have had original jurisdiction over the action. 28 U.S.C. § 1441(a). The federal court has original
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`federal question subject matter jurisdiction over “all civil actions arising under the Constitution,
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`laws, or treaties of the United States.” 28 U.S.C. § 1331.
`
`
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`Additionally, under Section 1442(a)(1), commonly referred to as the Federal Officer
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`Removal Statute, “[t]he United States or any agency thereof or any officer (or any person acting
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`under that officer) of the United States or of any agency thereof” may remove a civil action
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`commenced in state court “for or relating to any act under color of such office or on account of
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`any right, title or authority claimed under any Act of Congress for the apprehension or punishment
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`of criminals or the collection of the revenue.” 28 U.S.C. § 1442(a)(1).
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`
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`Although usually “[a]ny ambiguities are construed against removal because the removal
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`statute should be strictly construed in favor of remand,” Manguno v. Prudential Prop. & Cas. Ins.
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`Co., 276 F.3d 720, 723 (5th Cir. 2002), the federal officer removal statute must be liberally
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`interpreted because of its broad language and unique purpose. Watson v. Philip Morris Cos., Inc.,
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`551 U.S. 142, 147 (2007). As with any motion to remand, the removing party bears the burden of
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`showing that federal jurisdiction exists, and that removal was proper. De Aguilar v. Boeing Co.,
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`47 F.3d 1404, 1408 (5th Cir. 1995); Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 397
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`(5th Cir. 1998).
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`III. DISCUSSION
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`
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`To this Court’s knowledge, there are currently three main judicial opinions that address
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`virtually the same issue as the one in this case: Fernandez v. Tyson Foods, Inc. et al., No. 20-CV-
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`2079-LRR, 2020 WL 7867551 (N.D. Iowa Dec. 28, 2020),2 Fields et al. v. Brown et al., No. 6:20-
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`2 This decision is currently on appeal before the Eighth Circuit. Fernandez v. Tyson Foods, Inc. et al., No. 21-1010
`(8th Cir. appeal docketed Jan. 4,2021).
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`
`
`3
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`

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`Case 9:20-cv-00184-MJT Document 40 Filed 08/12/21 Page 4 of 16 PageID #: 1080
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`CV-00475, 2021 WL 510620 (E.D. Tex. Feb. 11, 2021),3 and Wazelle, et al., v. Tyson Foods, Inc.,
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`et al., No. 2:20-CV-203-Z, 2021 WL 2637335 (N.D. Tex. June 25, 2021). Fernandez granted
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`remand while Fields and Wazelle did not. For the reasons explained below, this Court agrees with
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`Fernandez and Plaintiffs’ motion to remand will be granted.
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`A.
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`Federal Officer Jurisdiction
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`
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`A defendant removing under section 1442(a)(1) must show “(1) it has asserted a colorable
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`federal defense, (2) it is a ‘person’ within the meaning of the statute, (3) that has acted pursuant to
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`a federal officer’s directions, and (4) the charged conduct is connected or associated with an act
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`pursuant to a federal officer’s directions.” Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 296
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`(5th Cir. 2020). Here, Tyson’s status as a “person” is not disputed. However, elements one, three,
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`and four are disputed.
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`(1) Colorable Federal Defense
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`
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`To be “colorable,” the asserted federal defense need not be “clearly sustainable,” as section
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`1442 does not require a federal official or person acting under him “to ‘win his case before he can
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`have it removed.’” Jefferson Cnty., Ala. v. Acker, 527 U.S. 423, 431 (1999) (internal citations
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`omitted). Instead, if an asserted federal defense is plausible, it is colorable. Latiolais, 951 F.3d at
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`297. A defense is colorable unless it is “immaterial and made solely for the purpose of obtaining
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`jurisdiction” or “wholly insubstantial and frivolous.” Id.
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`
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`In its notice of removal, Tyson raised two federal defenses. First, it argues that the Poultry
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`Products Inspection Act (“PPIA”) expressly preempts Plaintiffs’ state-law claims. (Doc. #1, at 9).
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`Second, it claims that “Plaintiffs’ claims are also preempted by the DPA [“Defense Production
`
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`3 The district court in Fields gave the plaintiffs permission to apply for an interlocutory appeal of the order, but the
`Fifth Circuit denied the application without stating a reason. Fields v. Brown, No. 21-90021 (5th Cir. June 21, 2021).
`4
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`
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`

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`Case 9:20-cv-00184-MJT Document 40 Filed 08/12/21 Page 5 of 16 PageID #: 1081
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`Act”] and the President’s [April 28, 2020] Food Supply Chain Resources executive order and
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`related federal directions.” Id. at 10.
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`i. PPIA
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`
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`
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`After pointing out that the PPIA and the Federal Meat Inspection Act (“FMIA”) have
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`substantially identical preemption provisions, Tyson maintains that the FMIA “‘sweeps widely’
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`and ‘prevents a State from imposing any additional or different—even if non-conflicting—
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`requirements that fall within the scope of the Act and concern a slaughterhouse’s facilities or
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`operations.” (Doc. #1, at 9–10) (quoting Nat’l Meat Ass’n v. Harris, 565 U.S. 452, 459–60 (2012)).
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`Specifically, Tyson argues that “the alleged failings Plaintiff pleads are ‘in addition to, or different
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`than,’ the requirements that FSIS4 [(“Food Safety and Inspection Service”)] has imposed regarding
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`employee hygiene and infectious disease—and therefore are preempted under the express terms of
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`21 U.S.C. § 467e.” (Doc. #14, at 22). Tyson asserts that “[p]reemption applies wherever Plaintiffs
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`seek to impose, as a matter of state law, different requirements for poultry-processing employees
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`than those adopted by the Department of Agriculture.” (Doc. #14, at 23).
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`
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`The PPIA’s express preemption clause (which includes a savings clause) is found at 21
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`U.S.C. § 467e and provides:
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`Requirements within the scope of [the PPIA] with respect to premises, facilities and
`operations of any [meat-processing] establishment . . . which are in addition to, or
`different than those made under [the PPIA] may not be imposed by any State . . . .
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`This chapter shall not preclude any State . . . from making requirement [sic] or
`taking other action, consistent with this chapter, with respect to any other matters
`regulated under this chapter.
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`Thus, for a state rule to be preempted by the PPIA, it must be within the scope of the Act. “[T]he
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`question whether a certain state action is pre-empted by federal law is one of congressional intent.
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`4 The United States Department of Agriculture (“USDA”) is responsible for enforcing the PPIA. FSIS is under the
`direction of USDA. The parties’ briefing use FSIS and USDA somewhat interchangeably.
`5
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`Case 9:20-cv-00184-MJT Document 40 Filed 08/12/21 Page 6 of 16 PageID #: 1082
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`The purpose of Congress is the ultimate touchstone.” Allis–Chalmers Corp. v. Lueck, 471 U.S.
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`202, 208 (1985) (internal citations omitted). “To discern Congress’ intent we examine the explicit
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`statutory language and the structure and purpose of the statute.” Ingersoll–Rand Co. v. McClendon,
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`498 U.S. 133, 138 (1990).
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`
`
`
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`Tyson’s preemption argument is premised on a misunderstanding of the PPIA’s breadth.
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`The purpose of the PPIA is “to provide for the inspection of poultry and poultry products and
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`otherwise regulate the processing and distribution of such articles . . . to prevent the movement or
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`sale in interstate or foreign commerce of, or the burdening of such commerce by, poultry products
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`which are adulterated or misbranded.” 21 U.S.C. § 452. According to Tyson, USDA (through
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`FSIS) has promulgated hundreds of pages of federal regulations addressing infectious diseases.
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`However, Tyson (and the Fields and Wazelle courts) do not address the fact that the PPIA’s
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`primary purpose is to protect consumers from unsafe meat, not to protect workers from disease. In
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`fact, FSIS itself acknowledges that it “has neither the authority nor the expertise to regulate issues
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`related to establishment worker safety.” Modernization of Swine Slaughter Inspection, 84 Fed.
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`Reg. 52,300, 52,305 (Oct. 1, 2019). Instead, “OSHA [Occupational Safety and Health
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`Administration] is the Federal agency with statutory and regulatory authority to promote
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`workplace safety and health.” Id. Because FSIS, the agency that enforces the PPIA, does not have
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`authority to regulate worker safety, it follows that no state common law negligence claims based
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`on improper workplace safety could be within the scope of the PPIA. And there is no suggestion
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`from Tyson that the provisions OSHA administers could preempt Plaintiffs’ claims.
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`
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`Further, Tyson points to no evidence that Congress intended the PPIA to displace state-law
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`actions relating to workplace safety. On the contrary, the federal agency that does regulate
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`workplace safety, OSHA, expressly preserves a role for state-law regulation and common law
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`6
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`Case 9:20-cv-00184-MJT Document 40 Filed 08/12/21 Page 7 of 16 PageID #: 1083
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`claims, including those that relate to “injuries, diseases, or death of employees arising out of, or in
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`the course of, employment.” 29 U.S.C. § 653(b)(4). Federal law gives the states express authority
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`to develop their own health and safety standards and recognizes that the states play the primary
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`role in protecting their workers’ health and safety. See 29 U.S.C. § 667. And in fact, many cities
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`and states have implemented their own COVID-19 procedures, and nothing suggests that those
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`procedures do not apply to facilities regulated by the PPIA.
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`
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`According to Tyson, FSIS has promulgated hundreds of pages of federal regulations
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`addressing infectious diseases. But the regulatory examples Tyson cites confirm that the PPIA’s
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`concern is with food safety, not worker safety. Tyson notes that “FSIS has promulgated a specific
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`‘[d]isease control’ regulation providing that ‘[a]ny person who has or appears to have an infectious
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`disease . . . must be excluded from any operations which could result in product adulteration and
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`the creation of insanitary conditions.’” (Doc. #14, at 21) (alterations in original) (quoting 9 C.F.R.
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`§ 416.5(c)). This provision highlights the PPIA’s specific concern with conditions leading to
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`“product adulteration,” not the spread of disease among workers. Likewise, in noting that
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`regulations promulgated under the PPIA require worker protective equipment, Tyson omits the
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`other portion of § 416.5(b) which states that “garments must be changed during the day as often
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`as necessary to prevent adulteration of product and the creation of insanitary conditions. 9 C.F.R.
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`§ 416.5(b) (emphasis added). This again demonstrates the PPIA’s concern with the “adulteration
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`of product.” Because the PPIA does not govern worker safety, it does not preempt Plaintiffs’
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`claims that Tyson negligently failed to protect workers.
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`
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`The PPIA only preempts requirements within its scope—and for a duty to fall within that
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`scope, there must be some evidence that Congress intended to preempt that duty. But Tyson has
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`failed to point to a single provision of the PPIA that indicates any intent to preempt the common-
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`7
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`Case 9:20-cv-00184-MJT Document 40 Filed 08/12/21 Page 8 of 16 PageID #: 1084
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`law duty at issue here—the duty to maintain a reasonably safe workplace. And if the PPIA does
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`not address a duty whatsoever, than the duty is not within its scope and therefore is not preempted.
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`Taking Tyson’s argument to its logical conclusion would mean that states could not implement
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`workplace safety regulations in any facility subject to PPIA’s regulations, which is illogical and
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`would unduly interfere with the states’ police power to protect the health and safety of their
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`citizens. Because nothing in the statutory language or in the structure and purpose of the PPIA
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`suggest an intent for the PPIA to preempt state common-law workplace safety claims such as this
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`one, the PPIA does not provide a colorable federal defense.
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`ii. DPA and the President’s Executive Order
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`
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`Tyson’s second defense is that Plaintiffs’ claims are also preempted by the DPA and the
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`President’s April 28, 2020 Food Supply Chain Resources Executive Order and related federal
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`directions. (Doc. #1, at 10). This argument fails. As Plaintiffs point out in the motion to remand,
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`their claims arose before the President issued his April 28 order invoking the DPA. In their petition,
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`Plaintiffs allege that Tyson unnecessarily and recklessly exposed Plaintiffs to COVID-19 weeks
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`before the April 28 order. Specifically, Plaintiffs state that Tyson “failed to take adequate
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`precautions to protect the workers at its meatpacking facilities, including the Center, Texas
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`meatpacking facility” by failing to take “significant precautions to prevent the spread of COVID-
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`19, prior to April 2, 2020.” (Doc. #3, at 6). Clearly an executive order issued after Plaintiffs
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`contracted COVID-19 cannot preempt their claims.
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`
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`Tyson raises no argument in their response to the motion to remand to refute this. Instead,
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`Tyson merely asserts that it need not prove it will prevail on their asserted defense. However, it is
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`Tyson’s burden to show it has a colorable federal defense and although it need not prove it will
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`prevail on the defense, it at least has to show that it is entitled to raise it. Tyson has made no such
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`
`
`8
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`

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`Case 9:20-cv-00184-MJT Document 40 Filed 08/12/21 Page 9 of 16 PageID #: 1085
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`showing under either the PPIA or the DPA. Further, it appears that Tyson’s reliance on the PPIA
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`and the DPA is made for the sole purpose of obtaining jurisdiction. See Latiolais, 951 F.3d at 297
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`(“[A]n asserted federal defense is colorable unless it is immaterial and made solely for the purpose
`
`of obtaining jurisdiction or wholly insubstantial and frivolous”). Thus, Tyson has no colorable
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`federal defense, and federal officer removal is improper.
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`(2) Acted Pursuant to a Federal Officer’s Directions
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`
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`As the Supreme Court has emphasized, the “acting under” requirement in 28 U.S.C. §
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`1442(a)(1) is broad and should be liberally construed. Watson, 551 U.S. at 147 (2007). The phrase
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`contemplates a relationship between a private person and a federal officer that “typically involves
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`subjection, guidance, or control” by the federal officer and, on the part of the private person, “an
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`effort to assist, or help carry out, the duties or tasks of the federal superior.” Id. at 151. In other
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`words, the relationship involves a “delegation” of authority. Id. at 156–57. To invoke the
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`protection of a federal forum under 28 U.S.C. § 1442(a)(1), the private person’s relationship with
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`a federal officer must implicate a “federal interest.” Winters v. Diamond Shamrock Chem. Co.,
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`149 F.3d 387, 398 (5th Cir. 1998).
`
`
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`Tyson points to two possible sources of direction from a federal officer: Tyson’s
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`designation as “critical infrastructure” and the President’s April 28, 2020 Executive Order. As
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`explained above, the primary allegations in Plaintiffs’ petition took place before April 28, 2020.
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`At the time the events in the petition took place, there was no executive order in place. Thus, the
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`executive order cannot satisfy the acting under prong of § 1442.
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`
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`Tyson also argues it was acting under a federal officer’s directions because it “operated its
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`facilities—including the Center facility—as critical infrastructure of the United States pursuant to
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`‘critical infrastructure’ emergency plans growing out of Presidential Policy Directive 21 of the
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`9
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`Case 9:20-cv-00184-MJT Document 40 Filed 08/12/21 Page 10 of 16 PageID #: 1086
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`Obama Administration, which were followed upon declaration of a national emergency.” (Doc.
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`#14, at 16). As a preliminary matter, Tyson fails to point out that the food and agriculture sector
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`has been designated as critical infrastructure since 2003; it is not something that arose because of
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`the
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`pandemic.
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`See Food
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`and Agriculture
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`Sector-Specific Plan,
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`FDA,
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`vi,
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`https://www.cisa.gov/sites/default/files/publications/nipp-ssp-food-ag-2015-508.pdf (2015).
`
`
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`Even though the President declared a national emergency on March 13, 2020, and issued
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`“Coronavirus Guidelines” on March 16, 2020, the Court is unpersuaded that such declarations
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`constitute direction under a federal officer for purposes of removal. Although Tyson claims that it
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`was “in constant contact with federal officials at the Department of Homeland Security [(“DHS”)]
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`and the USDA regarding continued operations,” the evidence it attached to its response to the
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`motion to remand does not support that assertion. (Doc. #14, at 16). The evidence Tyson uses is a
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`declaration of an employee, two emails that establish Tyson and DHS/FSIS had each other’s
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`contact information, an essential employee verification form Tyson itself created, general guidance
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`on the critical infrastructure workforce, general guidance from USDA, emails of Tyson trying to
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`obtain PPE from USDA, and a USDA sheet describing COVID-19 funding for FSIS employees.
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`Tyson has produced no evidence that any federal official directed it to do something. Many of the
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`documents Tyson cites to are titled “guidance” which are of course not mandatory or binding.
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`
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`While Tyson may have been in regular contact with USDA regarding continued operations
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`of its facilities at the early stages of the COVID-19 pandemic, such contact under the vague rubric
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`of “critical infrastructure” does not constitute “subjection, guidance, or control” involving “an
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`effort to assist, or to help carry out, the duties or tasks of the federal superior.” Watson, 551 U.S.
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`at 151–52. Although Tyson, and the courts in Wazelle and Fields, all give great weight to the fact
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`that USDA and FSIS closely monitored the plant and provided employees onsite during the
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`10
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`

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`Case 9:20-cv-00184-MJT Document 40 Filed 08/12/21 Page 11 of 16 PageID #: 1087
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`pandemic, all three fail to note that Tyson, as an entity subject to federal regulation, is always
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`closely monitored by FSIS and subject to its guidance and that FSIS always has employees onsite
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`at the plant and were not there as a direct result of COVID-19. USDA statements about protocols
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`for how FSIS inspectors would perform their regulatory functions during the pandemic do not
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`show government control of Tyson’s own operations. Tyson did not work with USDA and FSIS,
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`nor did it receive any concrete, binding directives from them; Tyson merely received guidance
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`from them. And close monitoring does not entitle it to federal officer removal. See id. at 153. Many
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`industries are closely monitored by the federal government, but the vast majority of them cannot
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`claim federal officer removal. See id. (“A private firm's compliance (or noncompliance) with
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`federal laws, rules, and regulations does not by itself fall within the scope of the statutory phrase
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`‘acting under’ a federal ‘official.’ And that is so even if the regulation is highly detailed and even
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`if the private firm's activities are highly supervised and monitored. A contrary determination would
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`expand the scope of the statute considerably, potentially bringing within its scope state-court
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`actions filed against private firms in many highly regulated industries). Tyson has not shown that
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`its contact with USDA after the president declared a national emergency was different than its
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`normal communication with USDA or that it constituted a delegation of authority.
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`
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`The Court finds the Supreme Court’s decision in Watson particularly helpful. In Watson,
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`the defendant alleged that the Federal Trade Commission (“FTC”) had delegated to the tobacco
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`industry authority to test the tar and nicotine content of cigarettes, and that the defendant was thus
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`acting under the FTC in performing that testing function. 551 U.S. at 154. The testing at issue had
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`at one point been performed by the FTC itself, and the agency published the test results periodically
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`and sent them annually to Congress. Id. at 155. When the FTC eventually stopped performing such
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`tests due to cost considerations, the industry assumed that responsibility, “running the tests
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`11
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`Case 9:20-cv-00184-MJT Document 40 Filed 08/12/21 Page 12 of 16 PageID #: 1088
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`according to FTC specifications and permitting the FTC to monitor the process closely.” Id. “The
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`FTC continue[d] to publish the testing results and to send them to Congress,” just as it had done
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`with the FTC’s own test results. Id. Despite the close coordination alleged in that case, the Supreme
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`Court unanimously held that the defendant was not “acting under” the FTC within the meaning of
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`Section 1442(a)(1). Tyson attempts to distinguish this case from Watson by stating that the
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`Supreme Court’s decision was based on a finding that the defendant was simply complying with
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`the law. However, the holding is more complex. The Court stressed that there was “no evidence
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`of any delegation of legal authority from the FTC to the industry association to undertake testing
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`on the Government agency’s behalf. Nor [wa]s there evidence of any contract, any payment, any
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`employer/employee relationship, or any principal/agent arrangement.” Id. at 156. Like Tyson in
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`this case, the defendant in Watson pointed to numerous documents and communications in support
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`of its claim that it was working with the FTC and acting under its direction in a relevant sense. But
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`the Supreme Court “examined all of the documents” and found them lacking because none
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`“establish[ed]the type of formal delegation that might authorize the defendant to remove the case.”
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`Id.
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`
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`Although Tyson asserts that it was carrying out the duties and task of the federal superior,
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`like in Watson, here there is no evidence of any delegation of legal authority from USDA to Tyson.
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`See id. Nor is there evidence of any contract, any payment, any employer/employee relationship,
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`or any principal/agent arrangement. See id. And although there may have been considerable
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`regulatory detail and supervision, this Court can find nothing that warrants treating the
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`USDA/Tyson relationship as distinct from the usual regulator/regulated relationship. While the
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`Court agrees with the proposition from E. Air Lines, Inc. v. McDonnell Douglas Corp., 532 F.2d
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`957, 994 (5th Cir. 1976), that the DPA can be exercised through informal methods, that case did
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`12
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`not deal with federal officer removal. Tyson cites no case where a private entity without a contract
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`with the federal government was able to satisfy the acting under requirement.5 But cf. Winters, 149
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`F.3d at 398 (defendant with a detailed and specific contract with the defense department to produce
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`a product with the specifications specifically dictated by the government satisfied acting under
`
`requirement); St. Charles Surgical Hosp., L.L.C. v. Louisiana Health Serv. & Indem. Co., 935 F.3d
`
`352, 356 (5th Cir. 2019) (because under the Federal Employees Health Benefits Act, the Office of
`
`Personnel Management was responsible for contracting with private insurance carriers to provide
`
`health benefits plans to federal employees, insurance carrier with such a contract satisfied the
`
`acting under requirement). Thus, the “acting under” requirement is not met.
`
`(3) Connected or Associated with an Act Pursuant to a Federal Officer’s
`Directions
`
`Finally, Tyson must show a connection or association between the federal officer’s
`
`
`
`
`directions and Plaintiffs’ claims. Latiolais, 951 F.3d at 296.
`
`
`
`The parties dispute the applicable standard for this prong. Plaintiffs, citing the Fifth
`
`Circuit’s decision in Winters, argue that there must be a “causal nexus” between plaintiffs’ claims
`
`and the directions that defendants received from a federal officer. 149 F.3d at 387. But that
`
`standard no longer governs. In 2020, the Fifth Circuit, sitting en banc, reinterpreted the 2011
`
`statutory amendments to § 1442 in Latiolais v. Huntington Ingalls. Inc. 951 F.3d 286. Those
`
`amendments “alter[ed] the requirement that a removable case be ‘for’ any act under color of federal
`
`office and permitt[ed] removability of a case ‘for or relating to’ such acts.” Id. at 291. That
`
`addition, the Latiolais court held, “broadened federal officer removal to actions, not just causally
`
`
`5 Tyson cites to Maryland v. Soper (No. 1), a case involving federal agents directing a private person to drive a car in
`pursuit of bootleggers. Maryland v. Soper (No. 1), 270 U.S. 9 (1926). While the Court there noted that the chauffeur
`and helper had the same right to the benefit of the removal provision as the federal agent, it ultimately rejected the
`removal efforts and thus, this comment is dicta. Soper also dealt with § 1442’s predecessor statute, not § 1442 itself.
`13
`
`
`
`

`

`Case 9:20-cv-00184-MJT Document 40 Filed 08/12/21 Page 14 of 16 PageID #: 1090
`
`connected, but alternatively connected or associated, with acts under color of federal office.” Id.
`
`at 292.
`
`
`
`Historically, many courts considered the acting under and causation requirements together.
`
`See, e.g. Winters, 149 F.3d 387. Although it has now been established that they are distinct and
`
`should be considered separately, that is not possible when, as here, the court finds the defendant
`
`has not acted pursuant to a federal officer’s directions. In other words, there can be no connection
`
`or association between the federal officer’s directions and the plaintiffs’ claims when, as here, the
`
`court has determined that there were no federal officer’s directions. Thus, because the “acting
`
`under” requirement is not met, the connection or association element is also not met.
`
`B.
`
`Federal Question Jurisdiction
`
`
`
`Pursuant to 28 U.S.C. § 1331, federal courts have subject matter jurisdiction over civil
`
`actions “arising under” federal law. 28 U.S.C. § 1331. A federal question exists “only [in] those
`
`cases in which a well-pleaded complaint establishes either that federal law creates the cause of
`
`action or that the plaintiff’s right to relief necessarily depends on resolution of a substantial
`
`question of federal law.” Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Tr. for
`
`S. Cal., 463 U.S. 1, 27–28 (1983). “[T]he question is, does a state-law claim necessarily raise a
`
`stated federal issue, actually disputed and substantial, which a federal forum may entertain without
`
`disturbing any congressionally approved balance of federal and state judicial responsibilities.”
`
`Grable & Sons Metal Prod., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314 (2005).
`
`
`
`Upon review of the petition, the Court finds that the petition does not assert federal claims,
`
`but rather asserts common law tort claims for negligence, premises liability, and wrongful death.
`
`See Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (providing that “federal jurisdiction
`
`exists only when a federal question is presented on the face of the plaintiff’s properly pleaded
`
`
`
`14
`
`

`

`Case 9:20-cv-00184-MJT Document 40 Filed 08/12/21 Page 15 of 16 PageID #: 1091
`
`complaint”). Additionally, Plaintiffs’ claims do not allege a cause of action created by a federal
`
`statute. See Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 808 (1986) (providing that
`
`cases brought under federal question jurisdiction are generally cases where federal law creates the
`
`cause of action).
`
`
`
`As to Tyson’s reliance on interpretation of the DPA, the Court has already explained that
`
`its reliance on President’s April 28, 2020 Executive Order invoking the DPA is misplaced because
`
`it was issued after the primary allegations in the petition had taken place. Further, Plaintiffs’
`
`generic passing references in the petition to federal regulations and guidance and their brief
`
`mention of CDC guidelines and OSHA standards do not confer federal question jurisdiction. See
`
`Merrell Dow, 478 U.S. at 813 (providing that “the mere presence of a federal issue in a state cause
`
`of action does not automatically confer federal-question jurisdiction”); Grable & Sons Metal
`
`Prod., Inc., 545 U.S. at 314 (providing that for federal courts to have jurisdiction, the state law
`
`claim must turn on an “actually disputed and substantial” issue of federal law). Accordingly, the
`
`Court concludes that the petition does not contain a federal question and, therefore, the Court lacks
`
`subject matter jurisdiction over the case.
`
`IV. CONCLUSION
`
`
`
`The Court finds that Tyson has failed to demonstrate (1)

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