`
`No. 21-1010
`UNITED STATES COURT OF APPEALS
`FOR THE EIGHTH CIRCUIT
`________________
`HUS HARI BULJIC, ET AL.,
`Plaintiffs-Appellees,
`
`v.
`
`TYSON FOODS INC., ET AL.,
`Defendants-Appellants.
`
`________________
`
`On Appeal from the United States District Court for the Northern District of Iowa,
`No. 20-cv-02079
`________________
`
`MOTION FOR STAY PENDING APPEAL
`________________
`
`NICHOLAS A. KLINEFELDT
`DAVID YOSHIMURA
`FAEGRE DRINKER BIDDLE
`& REATH
`801 Grand Avenue
`33rd Floor
`Des Moines, IA 50309
`(515) 248-9000
`Counsel for Appellants Tom Hart,
`Cody Brustkern, John Casey,
`Bret Tapken, and James Hook.
`
`PAUL D. CLEMENT
` Counsel of Record
`ERIN E. MURPHY
`C. HARKER RHODES IV
`KIRKLAND & ELLIS LLP
`1301 Pennsylvania Avenue, NW
`Washington, DC 20004
`(202) 389-5000
`paul.clement@kirkland.com
`Counsel for Appellants Tyson Foods,
`Inc. and Tyson Fresh Meats, Inc.
`
`January 29, 2021
`
`
`
`
`
`
`
`Appellate Case: 21-1010 Page: 1 Date Filed: 01/29/2021 Entry ID: 4999634
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`

`

`
`
`TABLE OF CONTENTS
`
`INTRODUCTION .................................................................................................... 1
`
`BACKGROUND ...................................................................................................... 1
`
`A. Factual Background .............................................................................. 1
`
`B. Procedural History ................................................................................ 6
`
`ARGUMENT ............................................................................................................ 8
`
`I. A Stay Is Necessary To Effectuate Appellants’ Statutory Appeal Right ............. 9
`
`II. The Traditional Stay Factors Are Also Satisfied ............................................... 12
`
`A. Appellants Are Likely to Succeed on the Merits ............................... 13
`
`1. Tyson acted under the direction of federal officers ....................... 13
`
`2. Plaintiffs' claims are related to actions that Appellants took
`under federal direction .................................................................. 16
`
`3. Appellants have colorable federal defenses .................................. 18
`
`B. Appellants Face Irreparable Harm Absent a Stay .............................. 20
`
`C. The Balance of Hardships Favors a Stay ........................................... 21
`
`D. A Stay Is in the Public Interest ........................................................... 22
`
`CONCLUSION ....................................................................................................... 23
`
`CERTIFICATE OF COMPLIANCE
`
`CERTIFICATE OF SERVICE
`
`
`
`
`
`
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`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`Baker v. Atl. Richfield Co.,
`962 F.3d 937 (7th Cir. 2020) ........................................................................ 17, 18
`
`Blinco v. Green Tree Servicing, LLC,
`366 F.3d 1249 (11th Cir. 2004) ...........................................................................12
`
`Brady v. Nat’l Football League,
`640 F.3d 785 (8th Cir. 2011) ...............................................................................13
`
`Brooks v. Howmedica, Inc.,
`273 F.3d 785 (8th Cir. 2001) ...............................................................................19
`
`Div. of Emp. Sec. v. Bd. of Police Comm’rs,
`864 F.3d 974 (8th Cir. 2017) ...............................................................................12
`
`E. Air Lines, Inc. v. McDonnell Douglas Corp.,
`532 F.2d 957 (5th Cir. 1976) ........................................................................ 15, 19
`
`Flowserve Corp. v. Burns Int’l Servs. Corp.¸
`423 F.Supp.2d 433 (D. Del. 2006) ......................................................................21
`
`Humphries v. Elliott Co.,
`760 F.3d 414 (5th Cir. 2014) ................................................................................. 9
`
`Iowa Utils. Bd. v. FCC,
`109 F.3d 418 (8th Cir. 1996) ...............................................................................12
`
`Jacks v. Meridian Res. Co., LLC,
`701 F.3d 1224 (8th Cir. 2012) ................................................................ 13, 14, 16
`
`Jock v. Sterling Jewelers, Inc.,
`738 F.Supp.2d 445 (S.D.N.Y. 2010) ...................................................................21
`
`Lu Junhong v. Boeing Co.,
`792 F.3d 805 (7th Cir. 2015) ................................................................................. 9
`
`Nat’l Meat Ass’n v. Harris,
`565 U.S. 452 (2012) ............................................................................................19
`
`
`
`
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`
`
`NCNB Texas Nat. Bank v. Fennell,
`933 F.2d 275 (5th Cir. 1991) ................................................................................. 9
`
`Nken v. Holder,
`556 U.S. 418 (2009) ............................................................................................12
`
`Northrup Grumman Tech. Servs., Inc.
`v. DynCorp Int’l LLC,
`2016 WL 3346349 (E.D. Va. June 16, 2016) .......................................... 10, 11, 20
`
`Roland v. Annett Holdings, Inc.,
`940 N.W.2d 752 (Iowa 2020) .............................................................................22
`
`Sawyer v. Foster Wheeler LLC,
`860 F.3d 249 (4th Cir. 2017) ........................................................................ 16, 18
`
`United States v. Todd,
`245 F.3d 691 (8th Cir. 2001) ...............................................................................18
`
`Vision Bank v. Bama Bayou, LLC,
`2012 WL 1592985 (S.D. Ala. May 7, 2012) .......................................................10
`
`Watson v. Philip Morris Companies, Inc.,
`551 U.S. 142 (2007) ............................................................................... 13, 14, 15
`
`Willingham v. Morgan,
`395 U.S. 402 (1969) ............................................................................................10
`
`Wolfe v. Clarke,
`718 F.3d 277 (4th Cir. 2013) ................................................................................. 8
`
`Statutes
`
`21 U.S.C. §678 .........................................................................................................19
`
`28 U.S.C. §1442 ...................................................................................................7, 20
`
`28 U.S.C. §1447(d) ..................................................................................... 1, 7, 9, 20
`
`42 U.S.C. §5195c(e) ................................................................................................... 2
`
`50 U.S.C. §4511(b) .................................................................................................... 5
`
`50 U.S.C. §4557 .......................................................................................................19
`
`
`
`
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`
`
`Rule
`
`Fed. R. App. P. 8(a)(1) ............................................................................................... 8
`
`Regulations
`
`9 C.F.R. §381.36(f) ..................................................................................................19
`
`9 C.F.R. §416.5 ........................................................................................................19
`
`Declaring a National Emergency Concerning the
`Novel Coronavirus Disease (COVID-19) Outbreak,
`85 Fed. Reg. 15,337 (Mar. 13, 2020) .................................................................... 2
`
`Delegating Authority Under the Defense Production Act With Respect
`to Food Supply Chain Resources During the National Emergency
`Caused by the Outbreak of COVID-19,
`85 Fed. Reg. 26,313 (Apr. 28, 2020) .................................................................... 5
`
`Other Authorities
`
`14C Wright & Miller,
`Fed. Prac. & Proc. Juris. §3726 (4th ed.) ............................................................17
`
`Coronavirus Task Force Press Briefing,
`The White House (Apr. 7, 2020),
`available at https://bit.ly/3ab4jTg ........................................................................ 5
`
`Matt Noltemeyer, Trump Meets with Food Company Leaders,
`Food Business News (Mar. 16, 2020),
`https://bit.ly/3t2fiXQ .......................................................................................3, 14
`
`Secretary Perdue Issues Letters on Meat Packing Expectations,
`U.S. Dep’t of Agriculture (May 5, 2020),
`https://bit.ly/3qTfVkC ........................................................................................... 6
`
`USDA to Implement President Trump’s Executive Order on Meat and
`Poultry Processors,
`U.S. Dep’t of Agriculture (Apr. 28, 2020),
`https://bit.ly/3tbmIrC ............................................................................................ 6
`
`
`
`
`
`
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`
`INTRODUCTION
`
`The underlying appeal in this case implicates a novel and important issue
`
`concerning the scope of federal-officer removal. Congress made clear that it did not
`
`want efforts to remove on federal-officer grounds to be rejected without appellate
`
`consideration. Thus, unlike the vast majority of remand orders rejecting an effort to
`
`remove to federal court, Congress made orders rejecting federal-officer removal and
`
`remanding to state court immediately appealable. See 28 U.S.C. §1447(d). A stay
`
`pending appeal is necessary to effectuate that congressional judgment, lest an
`
`appealable remand order immediately precipitate the very state-court litigation that
`
`federal-officer removal is designed to prevent before this Court can address the
`
`appeal. Despite the evident need for a stay in this context, the district court
`
`concluded it lacked jurisdiction to even issue a stay (in clear contravention of Federal
`
`Rule of Appellate Procedure 8) and then denied a stay in the alternative. The result
`
`is a cross-jurisdictional hash in which Appellants potentially face a state-court
`
`motion-to-dismiss deadline before their opening appellate brief is due in this Court.
`
`The clear remedy to this untenable situation is for this Court to grant a stay pending
`
`appeal.
`
`BACKGROUND
`
`A.
`
`Factual Background
`
`Appellants Tyson Foods, Inc. and Tyson Fresh Meats, Inc. (together “Tyson”)
`
`are one of the largest food companies in the United States. Tyson’s plants process
`
`
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`more than a fifth of the nation’s daily meat and poultry supply—enough to feed 60
`
`million Americans each day—and employ more
`
`than 120,000 workers.
`
`D.Ct.Dkt.17-2 (“Masters Decl.”) ¶3. As part of the food and agriculture sector,
`
`Tyson is designated under federal law as “critical infrastructure,” defined as systems
`
`whose incapacity or destruction “would have a debilitating impact on security,
`
`national economic security, national public health or safety, or any combination of
`
`those matters.” 42 U.S.C. §5195c(e); see Masters Decl. ¶8.
`
`On March 13, 2020, the President declared a national emergency in response
`
`to the COVID-19 crisis. See Declaring a National Emergency Concerning the Novel
`
`Coronavirus Disease (COVID-19) Outbreak, 85 Fed. Reg. 15,337 (Mar. 13, 2020).
`
`The federal government partnered with public and private entities to combat the
`
`disease and to keep the nation’s critical infrastructure operating. Tyson’s plants were
`
`critical to ensuring that the pandemic did not interrupt the national food supply,
`
`particularly given the increased demand as many Americans began hoarding food in
`
`response to mandatory stay-at-home orders and expected shortages.
`
`The federal government quickly called on Tyson and other food producers to
`
`assist in ensuring that the pandemic would not cause a food shortage. On March 15,
`
`2020, the President held a conference call with Tyson and other industry leaders to
`
`confirm that they would be “working hand-in-hand with the federal government” to
`
`“ensure food and essentials are constantly available,” and would work “24 hours
`
`
`
`2
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`around the clock” to ensure the nation’s food supply chain would remain
`
`uninterrupted. Matt Noltemeyer, Trump Meets with Food Company Leaders, Food
`
`Business News (Mar. 16, 2020), https://bit.ly/3t2fiXQ. The next day, the President
`
`issued “Coronavirus Guidelines for America” advising workers in critical
`
`infrastructure (including food supply) of their “special responsibility to maintain
`
`[their] normal work schedule” and instructing workers and employers to “follow
`
`CDC guidance.” D.Ct.Dkt.17-9 at 3. The Department of Agriculture also issued a
`
`statement committing to “work[] closely with industry to fulfill our mission of
`
`ensuring the safety of the U.S. food supply” and assuring the public that
`
`“government and industry will take all steps necessary to ensure continued access to
`
`safe and wholesome USDA-inspected products.” D.Ct.Dkt.17-10 at 2.
`
`Tyson immediately began coordinating with numerous federal government
`
`agencies to assist in this effort. On March 13, for instance—the same day the
`
`President issued his national emergency declaration—the Cybersecurity and
`
`Infrastructure Security Agency (“CISA”) organized a conference call with Tyson and
`
`others to coordinate procuring and delivering critical supplies, such as personal
`
`protective equipment (“PPE”), to food companies to ensure that they would continue
`
`operating in accordance with CDC guidance. Masters Decl. ¶7. The National Risk
`
`Management Center, a division of CISA, also communicated with Tyson to ensure
`
`that it had critical infrastructure designations in place for all its essential employees,
`
`
`
`3
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`who received letters authorizing them to continue traveling in support of their critical
`
`functions. Masters Decl. ¶¶11-13. The Department of Agriculture and the Federal
`
`Emergency Management Agency likewise worked to ensure that Tyson would have
`
`the necessary PPE and other critical supplies to continue operating in accordance
`
`with federal guidance. Masters Decl. ¶14.
`
`The Department of Agriculture’s Food Safety and Inspection Service
`
`(“FSIS”) also exercised significant federal supervision over Tyson’s operations.
`
`FSIS employees were already on site at Tyson’s meat and poultry processing
`
`facilities before the pandemic, and they continued to work during the pandemic.
`
`Masters Decl. ¶16. As FSIS emphasized in a statement issued on March 20, it sought
`
`“a united effort with our industry partners in preventing the spread of COVID-19
`
`while continuing to produce safe food for consumers.” Masters Decl. ¶17. FSIS
`
`held regular calls with industry representatives from March 2020 on to distribute
`
`information regarding the pandemic and made regulatory changes to ensure that
`
`meat and poultry would remain available. Masters Decl. ¶17, ¶19. Congress
`
`likewise allocated additional funding to FSIS to ensure that it could maintain its
`
`presence at meat and poultry processing facilities, so that Tyson and others in the
`
`industry could continue providing a safe and secure source of food. Masters Decl.
`
`¶18.
`
`
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`4
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`Meanwhile, senior federal officials directed food manufacturing plants to
`
`continue operating in accordance with CDC guidance. On April 7, the Vice
`
`President, speaking on behalf of the Coronavirus Task Force, thanked food industry
`
`workers for their “great service to the people of the United States of America” and
`
`explained that the United States needed them “to continue, as a part of what we call
`
`our critical infrastructure, to show up and do your job” while reassuring them that
`
`“we’re going to continue to work tirelessly in working with all of your companies to
`
`make sure that that workplace is safe.” Coronavirus Task Force Press Briefing, The
`
`White House (Apr. 7, 2020), available at https://bit.ly/3ab4jTg.
`
`Despite the clear federal mandate to continue safe operations, state and local
`
`officials began seeking to close local food processing plants. As a result, on April
`
`28, 2020, the President issued Executive Order 13917, which invoked his authority
`
`under the Defense Production Act (“DPA”) to ensure the continued national supply
`
`of meat and poultry. Delegating Authority Under the Defense Production Act With
`
`Respect to Food Supply Chain Resources During the National Emergency Caused
`
`by the Outbreak of COVID-19, 85 Fed. Reg. 26,313 (Apr. 28, 2020). Executive
`
`Order 13917 invoked the President’s powers under DPA §101(b), 50 U.S.C.
`
`§4511(b), to delegate authority to the Secretary of Agriculture to “ensure that meat
`
`and poultry processors continue operations consistent with the guidance for their
`
`operations jointly issued by the CDC and OSHA.” Id. That same day, the
`
`
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`5
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`Department of Agriculture announced that it would continue to “work with meat
`
`processing to affirm they will operate in accordance with [applicable] CDC and
`
`OSHA guidance” and “ensure that facilities implementing this guidance to keep
`
`employees safe can continue operating.” USDA to Implement President Trump’s
`
`Executive Order on Meat and Poultry Processors, U.S. Dep’t of Agriculture (Apr.
`
`28, 2020), https://bit.ly/3tbmIrC. The following week, acting under Executive Order
`
`13917, the Secretary issued letters instructing meat-processing plants to either
`
`remain open or submit written plans to reopen. Secretary Perdue Issues Letters on
`
`Meat Packing Expectations, U.S. Dep’t of Agriculture (May 5, 2020),
`
`https://bit.ly/3qTfVkC.
`
`B.
`
`Procedural History
`
`Plaintiffs were employees at Tyson’s meat-processing facility in Waterloo,
`
`Iowa, who contracted COVID-19 in the early days of the pandemic and ultimately
`
`died of complications related to the disease on April 26, 2020. Compl. ¶¶2-10. The
`
`administrators of Plaintiffs’ estates sued Appellants, including Tyson and certain
`
`Tyson employees, in Iowa state court, raising various state-law claims and alleging
`
`that Appellants failed to take adequate precautions and abide by federal guidance to
`
`prevent workers at the Waterloo plant from becoming infected with COVID-19.
`
`Compl. ¶¶114-51.
`
` They also allege
`
`that Appellants made
`
`fraudulent
`
`misrepresentations about the presence of COVID-19 at the plant, the efficacy of the
`
`
`
`6
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`safety measures implemented, and the need to keep the plant open to avoid national
`
`meat shortages. Compl. ¶¶100-101, 119(x), 135(x), 142-43.
`
`Tyson removed the case to the United States District Court for the Northern
`
`District of Iowa under the federal-officer removal statute, which allows removal of
`
`any civil action against “any officer (or any person acting under that officer) of the
`
`United States . . . for or relating to any act under color of such office.” 28 U.S.C.
`
`§1442(a)(1). Tyson explained that it was “acting under” federal supervision in
`
`continuing to operate its plants as instructed by the federal government; that
`
`Plaintiffs’ claims relate to actions Tyson took under federal direction; and that Tyson
`
`has colorable federal defenses. D.Ct.Dkt.1 at 4-12. Tyson also asserted removal on
`
`federal-question grounds, asserting that Plaintiffs’ claims arise under federal law
`
`because they necessarily raise federal issues that are actually disputed and
`
`substantial. D.Ct.Dkt.1 at 12-15. The district court disagreed on both grounds and
`
`ordered the case remanded to state court, but denied Plaintiffs attorney fees,
`
`recognizing that Tyson’s arguments for removal were “not … unreasonabl[e]” in
`
`light of “the complexity and novel nature of this case.” Dkt.57 at 29.
`
`Appellants promptly advised the court that its order was subject to a 30-day
`
`automatic stay under Federal Rule of Civil Procedure 62(a) and noticed an appeal to
`
`this Court, exercising its statutory right under 28 U.S.C. §1447(d) to appeal a remand
`
`order in a federal-officer removal case. D.Ct.Dkt.58. Appellants moved the district
`
`
`
`7
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`court to stay the automatically-stayed remand order during the pendency of its appeal
`
`(which had been docketed and set for prompt briefing). The court acknowledged
`
`that its order was automatically stayed for 30 days by Rule 62(a), D.Ct.Dkt.64 at 4,
`
`but it nonetheless mailed its remand order to state court during the pendency of the
`
`automatic stay. Then, one day after the 30-day automatic stay period expired, the
`
`court denied Appellants’ request for a stay pending appeal, holding—sua sponte and
`
`in clear contravention of Federal Rule of Appellate Procedure 8—that it lacked
`
`jurisdiction to grant a stay because Appellants had already noticed an appeal.
`
`D.Ct.Dkt.64 at 5.1 Alternatively, the court concluded that Appellants were not
`
`entitled to a stay under the traditional four-factor test. D.Ct.Dkt.64 at 5-7. As a
`
`consequence of the district court’s mailing of the remand order during the pendency
`
`of the automatic stay and its refusal to grant a stay pending appeal, Appellants now
`
`face a series of pending deadlines in state court.
`
`ARGUMENT
`
`This Court should grant a stay pending appeal while it resolves the novel and
`
`complex issues this case presents. Congress expressly provided for the appeal of
`
`
`1 That holding was plainly incorrect. Parties are obligated to seek a stay in the
`district court first, and nothing requires them to hold off on noticing an appeal until
`the district court can act on such a request. See Fed. R. App. P. 8(a)(1); Wolfe v.
`Clarke, 718 F.3d 277, 281 n.3 (4th Cir. 2013). To the contrary, it would frustrate the
`policy behind Rule 8(a)(1) if a party could bypass the district court and file a stay
`pending appeal directly in the court of appeals simply by filing a notice of appeal
`first.
`
`
`
`8
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`orders denying federal-officer removal, and no appellate court has yet considered
`
`the novel and important issues arising out of the federal government’s extraordinary
`
`efforts to instruct entities such as Tyson to remain in operation to preserve the
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`national food supply in the midst of a pandemic. The statutory right to appeal
`
`reflects Congress’ judgment that, unlike most removal efforts, efforts to remove on
`
`federal-officer grounds should not be denied without appellate consideration.
`
`Allowing the very state litigation that federal-officer removal is designed to prevent
`
`to proceed before an appeal is resolved would plainly undermine Congress’
`
`judgment. Unsurprisingly, courts have routinely stayed remand orders when the
`
`defendant had a statutory right to appeal, including when the defendant invoked
`
`federal-officer removal. See, e.g., Lu Junhong v. Boeing Co., 792 F.3d 805, 808 (7th
`
`Cir. 2015); Humphries v. Elliott Co., 760 F.3d 414, 416 (5th Cir. 2014); NCNB Texas
`
`Nat. Bank v. Fennell, 933 F.2d 275, 276 (5th Cir. 1991). This Court should do the
`
`same, both to honor Congress’ judgment and because the familiar four-factor test for
`
`stays pending appeal is satisfied here.
`
`I.
`
`A Stay Is Necessary To Effectuate Appellants’ Statutory Appeal Right.
`
`While remand orders generally are not appealable, Congress has specifically
`
`prescribed that a remand order in a case “removed pursuant to [28 U.S.C.] section
`
`1442”—the federal-officer removal statute—“shall be reviewable by appeal.” 28
`
`U.S.C. §1447(d). That explicit deviation from the general rule of non-appealability
`
`
`
`9
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`makes clear beyond cavil that Congress intended to give defendants that invoke
`
`federal-officer removal an opportunity for federal appellate review of any order
`
`rejecting such removal. Cf. Willingham v. Morgan, 395 U.S. 402, 407 (1969) (“One
`
`of the primary purposes of the removal statute—as its history clearly demonstrates—
`
`was to have [federal-officer] defenses litigated in the federal courts.”). Congress
`
`plainly did not want efforts to remove on federal-officer grounds to be denied
`
`without appellate consideration.
`
`This right to appeal an assertion of federal-officer removal can be effectuated
`
`only by granting a stay pending appeal when, as here, there is a colorable basis for
`
`federal-officer removal.2 That explicit statutory right would be largely meaningless
`
`if Appellants were forced to litigate in state court and endure the very harms that
`
`federal-officer removal is designed to avoid while their appeal is pending. See, e.g.,
`
`Northrup Grumman Tech. Servs., Inc. v. DynCorp Int’l LLC, 2016 WL 3346349 at
`
`*7 (E.D. Va. June 16, 2016) (granting stay in federal-officer removal case because
`
`denying stay “could render the appeal meaningless”); Vision Bank v. Bama Bayou,
`
`LLC, 2012 WL 1592985, at *2 (S.D. Ala. May 7, 2012) (noting that denying stay of
`
`remand order pending appeal “would make the right of appeal nugatory”). As courts
`
`have recognized, requiring a defendant to suffer the cost and inconvenience of
`
`
`2 Even the district court recognized that Tyson’s basis for removal is at least
`colorable when it denied Plaintiffs attorney fees. See D.Ct.Dkt.57 at 29.
`
`
`
`10
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`parallel litigation in a different forum while its appeal is pending would effectively
`
`deprive the defendant of its federal right to appellate review of its claim to a federal
`
`forum. See Northrop Grumman, 2016 WL 3346349, at *3-4 (right to appeal would
`
`be “hollow” if defendant could be forced to “face the burden of having to
`
`simultaneously litigate the appeal . . . and the underlying case in state court”).
`
`Those concerns apply with particular force here given the district court’s
`
`handling of the case after it rejected Appellants’ arguments for federal-officer
`
`removal. Although the court belatedly recognized that the remand order was subject
`
`to a 30-day automatic stay under Rule 62(a), it nonetheless mailed notice of its
`
`remand order to the state court during the pendency of the stay. The combined effect
`
`of that mailing and the court’s denial of a stay pending appeal is that Appellants face
`
`impending litigation deadlines in state court. Appellants have already been forced
`
`to file a notice of appearance in state court, and absent a stay, Appellants will be
`
`required to file a motion to dismiss in Iowa state court as early as February 8, and
`
`no later than February 17. But those state-court proceedings and deadlines are the
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`very thing that federal-officer removal protects against. Thus, a stay is necessary to
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`effectuate Congress’ judgment that colorable arguments for federal-officer removal
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`should not be rejected absent appellate review.
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`Indeed, courts, including this Court, have routinely recognized that when an
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`appeal seeks to vindicate a right not to have to litigate in a particular forum or at all,
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`forcing such litigation pending appeal would destroy what the appeal right is
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`intended to protect. Cf., e.g., Div. of Emp. Sec. v. Bd. of Police Comm’rs, 864 F.3d
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`974, 978 (8th Cir. 2017) (right to qualified immunity “is effectively lost if a case is
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`erroneously permitted to go to trial”); Blinco v. Green Tree Servicing, LLC, 366 F.3d
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`1249, 1251 (11th Cir. 2004) (stay is always warranted pending appeal from denial
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`of motion to compel arbitration). Moreover, failing to grant a stay in such
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`circumstances could prompt difficult questions about the effect of any state-court
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`rulings made during the pendency of the federal appeal in the event of reversal.
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`Congress obviously understood it was granting a right to appeal a remand order that
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`is typically unappealable and typically ends federal jurisdiction over a case.
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`Congress’ decision to preserve federal jurisdiction by authorizing appeals from
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`remand orders in federal-officer cases can be given effect only through a stay.
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`II. The Traditional Stay Factors Are Also Satisfied.
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`The traditional factors also strongly support a stay pending appeal. In
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`determining whether to grant a stay pending appeal, courts consider: “(1) the
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`likelihood that a party seeking the stay will prevail on the merits of the appeal; (2)
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`the likelihood that the moving party will be irreparably harmed absent a stay; (3) the
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`prospect that others will be harmed if the court grants the stay; and (4) the public
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`interest in granting the stay.” Iowa Utils. Bd. v. FCC, 109 F.3d 418, 423 (8th Cir.
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`1996); see Nken v. Holder, 556 U.S. 418, 425-26 (2009). The court must “consider
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`the relative strength of the four factors, balancing them all.” Brady v. Nat’l Football
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`League, 640 F.3d 785, 789 (8th Cir. 2011) (citations omitted). Each of those factors
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`favors a stay, as does the balancing of all four.
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`A. Appellants Are Likely to Succeed on the Merits.
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`Appellants are likely to succeed on the merits. Federal-officer removal is
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`authorized where “(1) a defendant has acted under the direction of a federal officer,
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`(2) there was a causal connection between the defendant’s actions and the official
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`authority, (3) the defendant has a colorable federal defense to the plaintiff’s claims,
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`and (4) the defendant is a ‘person,’ within the meaning of the statute.” Jacks v.
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`Meridian Res. Co., LLC, 701 F.3d 1224, 1230 (8th Cir. 2012). It is undisputed that
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`Tyson is a “person” under §1442(a)(1). See id. at 1230 n.3. The other three elements
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`for federal-officer removal are likewise met.
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`1.
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`Tyson acted under the direction of federal officers.
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`Tyson “acted under the direction of a federal officer” in continuing to operate
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`its Waterloo plant in the early days of the pandemic. Id. at 1230. That element
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`requires a relationship that “typically involves subjection, guidance, or control,” in
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`which the private party acts “to assist, or help carry out, the duties or tasks of the
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`federal superior.” Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 151-52
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`(2007). That assistance must “go[] beyond simple compliance with the law and
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`help[] officers fulfill other basic governmental tasks.” Id. at 153. In Jacks, for
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`instance, this Court held that a health-insurance provider for federal employees was
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`entitled to federal-officer removal. 701 F.3d at 1228. Because the provider was
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`acting under federal guidance to help the government to carry out “the basic
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`governmental task of providing health benefits for its employees,” id. at 1234, it
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`acted under a federal officer for purposes of §1442(a)(1).
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`Tyson plainly satisfies the “acting under” element. From the earliest days of
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`the COVID-19 crisis in the United States, Tyson operated under close federal
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`supervision and direction to help the government fulfill one of its paradigmatic
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`“basic governmental tasks,” Watson, 551 U.S. at 153: ensuring that Americans had
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`enough to eat in the midst of an unprecedented national crisis. That federal
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`supervision and direction was reinforced by repeated statements from all levels of
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`the federal government. Just two days after declaring a national emergency, the
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`President personally spoke with Tyson and other food industry leaders to confirm
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`that they would be “working hand-in-hand with the federal government,” “24 hours
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`around the clock,” to make sure that “food and essentials are constantly available.”
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`Noltemeyer, supra.
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`Tyson also helped implement that federal mission by working closely with
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`numerous federal