`
`No. 21-1010 & 21-1012
`
`UNITED STATES COURT OF APPEALS
`FOR THE EIGHTH CIRCUIT
`________________
`
`HUS HARI BULJIC, et al.,
`Plaintiffs-Appellees,
`
`v.
`
`TYSON FOODS, INC., et al.,
`Defendants-Appellants.
`________________
`OSCAR FERNANDEZ,
`Plaintiff-Appellee,
`
`v.
`
`TYSON FOODS, INC., et. al.,
`Defendants-Appellants.
`________________
`
`On Appeal from the United States District Court for the Northern District of Iowa,
`Nos. 20-cv-2055 & 20-cv-2079
`________________
`
`REPLY BRIEF FOR APPELLANTS
`________________
`
`(Counsel listed on inside cover)
`
`
`
`Appellate Case: 21-1010 Page: 1 Date Filed: 05/11/2021 Entry ID: 5034156
`
`
`
`
`
`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
`
`May 10, 2021
`
`
`
`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.,
`Tyson Fresh Meats, Inc., John H. Tyson,
`Noel W. White, Dean Banks, Stephen R.
`Stouffer, and Tom Brower
`
`
`
`
`
`Appellate Case: 21-1010 Page: 2 Date Filed: 05/11/2021 Entry ID: 5034156
`
`
`
`
`
`TABLE OF CONTENTS
`
`TABLE OF AUTHORITIES ..................................................................................... ii
`
`INTRODUCTION .................................................................................................... 1
`
`ARGUMENT ............................................................................................................ 2
`
`I.
`
`Tyson Acted Under The Direction Of Federal Officers ................................. 2
`
`A.
`
`B.
`
`Tyson Acted Under Extensive Federal Direction and
`Supervision ........................................................................................... 3
`
`Plaintiffs’ “Basic Governmental Task” Argument Is Meritless
` ............................................................................................................ 13
`
`C.
`
`Plaintiffs’ Buljic-Only Forfeiture Argument Is Meritless .................. 18
`
`II.
`
`Plaintiffs’ Claims Are Related To Actions Tyson Took Under Federal
`Direction ....................................................................................................... 19
`
`III. Tyson Has More Than Colorable Federal Defenses ..................................... 21
`
`A.
`
`B.
`
`Tyson Has a Colorable Preemption Defense Under the FMIA
` ............................................................................................................ 22
`
`Tyson Has Colorable Federal Defenses Under the DPA and
`the Federal Directives Under Which Tyson Operated ....................... 25
`
`CONCLUSION ....................................................................................................... 28
`
`CERTIFICATE OF COMPLIANCE
`
`CERTIFICATE OF SERVICE
`
`Appellate Case: 21-1010 Page: 3 Date Filed: 05/11/2021 Entry ID: 5034156
`
`i
`
`
`
`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`Bailey v. Monsanto Co.,
`176 F.Supp.3d 853 (E.D. Mo. 2016) ...................................................................12
`
`E. Air Lines, Inc. v. McDonnell Douglas Corp.,
`532 F.2d 957 (5th Cir. 1976) ........................................................................ 12, 25
`
`Fields v. Brown,
`No. 20-cv-00475,
`2021 WL 510620 (E.D. Tex. Feb. 11, 2021) ...................................... 3, 16, 19, 23
`
`Millbrook v. United States,
`569 U.S. 50 (2013) ..............................................................................................26
`
`Isaacson v. Dow Chem. Co.,
`517 F.3d 129 (2d Cir. 2008) ................................................................................ 11
`
`Jacks v. Meridian Res. Co., LLC,
`701 F.3d 1224 (8th Cir. 2012) ..................................................................... passim
`
`Latiolais v. Huntington Ingalls, Inc.,
`951 F.3d 286 (5th Cir. 2020) ........................................................................ 19, 21
`
`Leite v. Crane Co.,
`749 F.3d 1117 (9th Cir. 2014) .............................................................................21
`
`Nat’l Meat Ass’n v. Harris,
`565 U.S. 452 (2012) ..................................................................................... 22, 23
`
`Ruppel v. CBS Corp.,
`701 F.3d 1176 (7th Cir. 2012) .............................................................................16
`
`Ryan v. Dow Chem. Co.,
`781 F.Supp. 934 (E.D.N.Y. 1992) .......................................................................12
`
`United Food & Com. Workers Union v. U.S. Dep’t of Agric.,
`2021 WL 1215865, No. 19-cv-2660
`(D. Minn. Mar. 31, 2021) ....................................................................................24
`
`Appellate Case: 21-1010 Page: 4 Date Filed: 05/11/2021 Entry ID: 5034156
`
`ii
`
`
`
`
`
`United States v. Todd,
`245 F.3d 691 (8th Cir. 2001) ...............................................................................22
`
`United States v. Vertac Chemical Corp.,
`46 F.3d 803 (8th Cir. 1995) .......................................................................... 26, 27
`
`Washington v. Monsanto Co.,
`738 F.App’x 554 (9th Cir. 2018) .........................................................................12
`
`Watson v. Philip Morris Companies, Inc.,
`551 U.S. 142 (2007) .................................................................................... passim
`
`Statutes
`
`21 U.S.C. §678 .........................................................................................................22
`
`28 U.S.C. §1442(a) ......................................................................................... 7, 8, 19
`
`28 U.S.C. §1446(a) ..................................................................................................18
`
`42 U.S.C. §5195c(c) .................................................................................................15
`
`50 U.S.C. §4557 ................................................................................................ 25, 26
`
`Regulation
`
`9 C.F.R. §416.5(c) ....................................................................................................23
`
`Other Authorities
`
`14C Wright & Miller,
`Fed. Prac. & Proc. Juris. §3726 (4th ed.) ............................................................20
`
`Doina Chiacu,
`Trump Administration Unclear over Emergency Production
`Measure to Combat Coronavirus, Reuters
`(March 24, 2020), http://reut.rs/3rS3MN5 .........................................................10
`
`Dyani Lewis, Covid-19 rarely spreads through surfaces.
`So why are we still deep cleaning?, Nature
`(Jan. 29, 2021) https://go.nature.com/3g81yXt ..................................................24
`
`Appellate Case: 21-1010 Page: 5 Date Filed: 05/11/2021 Entry ID: 5034156
`
`iii
`
`
`
`
`
`Letter from Sen. Chris Van Hollen et al.
`to Vice President Michael Pence (Apr. 20, 2020),
`https://bit.ly/3baGbl2 ..........................................................................................17
`
`Letter from Sonny Perdue, Sec’y of Agric.,
`Re: Executive Order 13917 Delegating Authority Under the
`Defense Production Act with Respect to the Food Supply Chain
`Resources During the National Emergency Caused by the
`Outbreak of COVID-19 (May 5, 2020), https://bit.ly/3syhSn5 ................... 12, 20
`
`Matt Noltemeyer,
`Trump Meets with Food Company Leaders,
`Food Business News (March 16, 2020),
`https://bit.ly/3t2fiXQ .......................................................................................4, 10
`
`Mindy Brashears, In the Arena…,
`Meatingplace (May 3, 2021),
`https://bit.ly/3xOuzhp ........................................................................................... 6
`
`Presidential Policy Directive/PPD-21,
`Critical Infrastructure Security and Resilience,
`The White House (Feb. 12, 2013), https://bit.ly/3jqTgcY..................................15
`
`Remarks by President Trump, Vice President Pence,
`and Members of the Coronavirus Task Force in Press Briefing,
`The White House (Mar. 18, 2020), https://bit.ly/2Nh91XZ ...............................10
`
`
`
`
`
`Appellate Case: 21-1010 Page: 6 Date Filed: 05/11/2021 Entry ID: 5034156
`
`iv
`
`
`
`
`
`INTRODUCTION
`
`In the throes of the greatest national health crisis in a century, ensuring that
`
`the nation’s food supply remained secure ranked high among the federal
`
`government’s top priorities. In our system of free enterprise and federalism, the
`
`federal government could not accomplish that critical task alone. It depended on the
`
`cooperation of companies like Tyson and the displacement of state and local
`
`regulators with conflicting priorities. Tyson provided that cooperation under the
`
`close direction of federal officers from the earliest days of the pandemic, even before
`
`the directives were formalized in Executive Order 13917. In the telling of Plaintiffs
`
`and their amici, Tyson instead should have refused to cooperate with the federal
`
`government’s dictates and forced the federal government to formalize matters from
`
`the outset—which would have risked a national food shortage compounding a severe
`
`health crisis. Fortunately, the law has never penalized private parties for cooperating
`
`with federal officers in responding to emergencies.
`
`Plaintiffs invite this Court to rewrite the federal-officer removal statute
`
`completely, such that it would apply only when a private party “effectively assumes
`
`the role of the government” and there is a “merging of identity between [the private
`
`party] and the United States.” Opp.23. That revisionist approach finds no support
`
`in governing precedent and would read the words “acting under” out of the statute.
`
`Plaintiffs alternatively make the remarkable claim that any federal direction here was
`
`
`
`Appellate Case: 21-1010 Page: 7 Date Filed: 05/11/2021 Entry ID: 5034156
`
`
`
`
`
`insufficient to entitle Tyson to a federal forum because securing the nation’s food
`
`supply is not a “basic governmental task.” Thankfully, both Congress and the
`
`Executive made different judgments both before and during the pandemic and
`
`recognized that ensuring a stable and safe food supply is one of the most crucial
`
`functions of the government during a national crisis.
`
`In short, the touchstone of federal-officer removal has never been formality.
`
`A private individual asked to drive federal officers in hot pursuit of a suspect has
`
`never been forced to ask for formal deputization papers before putting the car into
`
`drive. Cooperation with federal officers absent such formalities has been celebrated,
`
`not punished. That commonsense proposition should not be discarded based on the
`
`size of the crisis or with a change of administrations. And shorn of its myopic focus
`
`on formality, neither the district court’s decision nor Plaintiffs’ effort to shore it up
`
`provides any basis for forcing Tyson to litigate its federal defenses to actions it took
`
`at the federal government’s behest in state court. This Court should reverse.
`
`ARGUMENT
`
`I.
`
`Tyson Acted Under The Direction Of Federal Officers.
`
`In continuing to operate its Waterloo plant in the early days of the COVID-19
`
`pandemic, Tyson “acted under the direction of [multiple] federal officer[s],”
`
`including the President himself, to help the federal government achieve its
`
`paramount objective of maintaining the nation’s food supply in the midst of a
`
`Appellate Case: 21-1010 Page: 8 Date Filed: 05/11/2021 Entry ID: 5034156
`
`2
`
`
`
`
`
`national emergency. Jacks v. Meridian Res. Co., LLC, 701 F.3d 1224, 1230 (8th Cir.
`
`2012). That “effort to assist” federal officers in carrying out a “basic governmental
`
`task,” under extensive federal supervision and control, readily satisfies the acting-
`
`under prong of the federal-officer removal test. Id. at 1230, 1232; see Watson v.
`
`Philip Morris Companies, Inc., 551 U.S. 142, 152-53 (2007); Fields v. Brown, No.
`
`20-cv-00475, 2021 WL 510620, at *3 (E.D. Tex. Feb. 11, 2021) (holding on near-
`
`identical facts that Tyson was acting under federal direction “by working directly
`
`with the Department of Agriculture and the FSIS to guarantee that there was an
`
`adequate food supply”). Plaintiffs’ contrary arguments, like the district court’s
`
`decision, misconstrue the law and misrepresent the facts.
`
`A. Tyson Acted Under Extensive Federal Direction and Supervision.
`
`What Tyson was asked to do in the early days of the pandemic went far
`
`“beyond simple compliance with the law,” Watson, 551 U.S. at 153; Tyson acted
`
`under direction and supervision from the highest levels of the federal government.
`
`Br.6-15. Just two days after declaring a national emergency, the President personally
`
`spoke with Tyson and other food industry leaders to convey that they henceforth
`
`would be “working hand-in-hand with the federal government” to ensure that “food
`
`and essentials are constantly available,” and that food suppliers would “work 24
`
`hours around the clock” to achieve that goal. Matt Noltemeyer, Trump Meets with
`
`Food Company Leaders, Food Business News
`
`(March 16, 2020),
`
`Appellate Case: 21-1010 Page: 9 Date Filed: 05/11/2021 Entry ID: 5034156
`
`3
`
`
`
`
`
`https://bit.ly/3t2fiXQ. The Department of Agriculture reiterated that message in
`
`public statements, committing to “work[] closely with industry to fulfill our mission
`
`of ensuring the safety of the U.S. food supply” and “maintain the movement of
`
`America’s food supply from farm to fork.” A180, A365. Federal agencies helped
`
`implement that directive, utilizing the pre-existing “critical infrastructure”
`
`framework to ensure Americans had access to an uninterrupted food supply, and
`
`ensuring that Tyson would continue to operate in accordance with federal guidance
`
`by securing protective equipment and critical infrastructure designations for Tyson
`
`employees. A171-177, A352-360; A137-140, A314-317; see A157, A338. Congress
`
`contributed, approving additional funding for federal inspectors so meat suppliers
`
`could continue operating. A182, A368; A141, A318. In short, the answer to the
`
`national crisis was not more garden-variety regulation of the sort found insufficient
`
`in Watson. It was an extraordinary series of actions by the federal government and
`
`Tyson to ensure that Tyson’s plants remained operational in the early days of the
`
`pandemic, under close and constant federal direction, in service of the critical goal
`
`of preventing a nationwide food shortage. Br.30-33.
`
`The district court dismissed all that by employing a rigid formality
`
`requirement and refusing to recognize federal direction before the President issued
`
`Executive Order 13917. ADD25, ADD54. That myopic focus on formality
`
`pervaded the court’s opinion, which invoked the timing of Executive Order 13917
`
`Appellate Case: 21-1010 Page: 10 Date Filed: 05/11/2021 Entry ID: 5034156
`
`4
`
`
`
`
`
`in every aspect of its removal analysis. ADD25-28, ADD54-57. Plaintiffs
`
`conspicuously do not defend that reasoning. In fact, they disavow it, claiming—via
`
`a hypothetical rather than any citation to the court’s opinion—“that the district
`
`court’s determination was not tied to ‘formality.’” Opp.24-25 (emphasis added).
`
`That tack is understandable, as the district court’s insistence on formality has no
`
`basis in the statutory text or any decision interpreting it. See Br.25-27, 33-37. But
`
`Plaintiffs cannot erase the district court’s clear legal error by refusing to
`
`acknowledge that the court treated nothing short of a formal order as sufficient to
`
`demonstrate that Tyson acted under federal direction.
`
`Rather than defend the district court’s reasoning, Plaintiffs attempt to dismiss
`
`the “regular contact” between the federal government and Tyson in the extraordinary
`
`early days of the pandemic, ADD25, ADD55, as nothing “distinct from the usual
`
`regulator/regulated relationship,” Watson, 551 U.S. at 157. Opp.40-43. But nothing
`
`about the early days of the pandemic was “usual.” The federal government was not
`
`reaching out at the highest levels on its normal regulatory footing or simply to
`
`provide “assistance in performing tasks of private industry.” Opp.41. It was
`
`reaching out to ensure that it could keep the nation fed, which required coordination
`
`and direction far beyond what one state or locality can accomplish. Those
`
`extraordinary communications
`
`in extraordinary
`
`times reflected
`
`the close
`
`collaboration necessary to achieve the federal government’s paramount goal of
`
`Appellate Case: 21-1010 Page: 11 Date Filed: 05/11/2021 Entry ID: 5034156
`
`5
`
`
`
`
`
`ensuring the nation’s food supply during an unprecedented national health crisis.
`
`See Br.10-14. To be sure, neither Tyson nor the government could achieve that
`
`federal objective acting alone, and Tyson sought federal intervention amidst chaos
`
`and uncertainty, as its ability to continue operating in accordance with federal
`
`directives decidedly depended on the federal government’s own ability to provide
`
`the supervision necessary to keep the plants operational. But that does not
`
`demonstrate that Tyson rather than the federal government was in control.
`
`Moreover, given the extraordinary context in which the communications occurred,
`
`dismissing them as “the kinds of emails exchanged between industry and regulatory
`
`officials thousands of times a day” ignores all reality. Opp.43.1 Equating those
`
`extraordinary communications to ordinary regulatory exchanges is like equating the
`
`pandemic to a common cold.
`
`
`1 The United States now downplays its directives to the food industry, claiming
`it engaged in nothing more than “mere encouragement to maintain private
`production.” U.S.Br.10. Needless to say, the new Administration’s view of those
`interactions may not be an accurate proxy for the view of federal officials who
`actually issued the directives. See Mindy Brashears, In the Arena…, Meatingplace
`(May 3, 2021), https://bit.ly/3xOuzhp (former Under Secretary for Food Safety
`explaining that “[i]t became evident very quickly that food availability, something
`we all take for granted in the USA, is indeed a matter of national security”). And
`the United States’ filing of an amicus brief to try to reserve federal-officer removal
`for only full-time federal officers or formalized “deputies” will hardly serve the
`federal government’s long-term interests in the next crisis.
`
`Appellate Case: 21-1010 Page: 12 Date Filed: 05/11/2021 Entry ID: 5034156
`
`6
`
`
`
`
`
`Implicitly recognizing as much, Plaintiffs try to ratchet up the standard for
`
`satisfying the “acting under” prong. But their radical revision of the removal test
`
`would effectively nullify the federal-officer removal statute’s protection for private
`
`parties (which appears to be the federal government’s objective in filing its brief
`
`after a change in executive administrations). According to Plaintiffs, Tyson cannot
`
`demonstrate that it was “acting under” a federal officer unless it can show that it
`
`“effectively assume[d] the role of the government,” leading to “a merging of identity
`
`between Tyson and the United States.” Opp.23. Plaintiffs unsurprisingly cite no
`
`case whatsoever for that novel theory, which cannot be squared with the statutory
`
`text or with binding precedent. To satisfy the removal statute, the role of a private
`
`party need not be so entirely governmental that it raises Appointments Clause
`
`problems. The federal-officer removal statute authorizes removal for private
`
`defendants “acting under” a federal officer, not just for defendants who are federal
`
`officers. 28 U.S.C. §1442(a)(1). And federal-officer removal is available to any
`
`private party engaged in “an effort to assist, or to help carry out, the duties or tasks
`
`of the federal superior,” Watson, 551 U.S. at 151-52, which does not at all require
`
`any “merging of identity” between the private party and the United States, Opp.23.
`
`Indeed, if “merging of identity” were really the test, then the Supreme Court
`
`would not have devoted considerable attention in Watson to analyzing whether Philip
`
`Morris was conducting cigarette testing “pursuant to [a] delegation” of federal
`
`Appellate Case: 21-1010 Page: 13 Date Filed: 05/11/2021 Entry ID: 5034156
`
`7
`
`
`
`
`
`power, as no one tried to argue that the federal government and the tobacco industry
`
`had somehow effectively become a single actor. 551 U.S. at 153-57. Nor would this
`
`Court have concluded in Jacks that a private health insurance provider was “acting
`
`under” the federal government in providing health benefits for federal employees,
`
`as that provider plainly had not “merged” with the government in performing that
`
`function. Jacks, 701 F.3d at 1233-34; see Br.29. As those decisions reflect, what
`
`matters is whether the private party is performing a function for the federal
`
`government, not whether the federal government’s control over that party is so
`
`pervasive as to make the two effectively one and the same.
`
`For much the same reasons, Plaintiffs miss the mark in arguing that “no statute
`
`gives the federal government authority to assume control over critical infrastructure
`
`en masse.” Opp.29. Plaintiffs are correct that this is not the Steel Seizure case, but
`
`Congress enacted the Critical Infrastructure Protection Act in the wake of 9/11 in
`
`recognition of the reality that there is ample middle ground between outright
`
`expropriation and the kind of ordinary government regulation that prevails in the
`
`absence of national crises. And the federal-officer removal statute does not require
`
`full federal expropriation for a private party to be “acting under” a federal officer.
`
`28 U.S.C. §1442(a)(1); see Watson, 551 U.S. at 151-52. It requires only that the
`
`private party be enlisted to assist in carrying out a federal objective—that is, enlisted
`
`in a relationship that “goes beyond simple compliance with the law and helps
`
`Appellate Case: 21-1010 Page: 14 Date Filed: 05/11/2021 Entry ID: 5034156
`
`8
`
`
`
`
`
`[federal] officers fulfill other basic governmental tasks.” Watson, 551 U.S. at 153.
`
`That the federal government learned a lesson from President Truman and did not
`
`literally seize the meatpacking industry when the COVID-19 pandemic hit is
`
`therefore beside the point. What the federal government made utterly clear was that
`
`during this unprecedented national emergency Tyson was to continue operating as
`
`critical infrastructure, as directed by the federal government. That is what it means
`
`for a private party to be acting under the “subjection, guidance, or control” of the
`
`federal government. Id. at 151-52.
`
`Plaintiffs insist that the fact the meatpacking industry has been designated
`
`“critical infrastructure” does not alone make Tyson a federal officer for removal
`
`purposes. Contra Opp.29-31. But Tyson has never rested on that fact alone. Nor
`
`has Tyson claimed that the President’s declaration of a national emergency alone
`
`was sufficient. But none of the events occurred in isolation, and the entire statutory,
`
`regulatory, and historical context makes clear that Tyson was “acting under” federal
`
`direction in ensuring the nation’s food supply in time of crisis. It is one thing for the
`
`President to call leaders of the meat-processing industry in ordinary times and tell
`
`them to keep up all the good work they are doing for the nation. It is another thing
`
`entirely for the President to convene a call with those leaders two days after declaring
`
`a national emergency to inform them of their duty as part of the nation’s critical
`
`infrastructure to “work[] hand-in-hand with the federal government,” “24 hours
`
`Appellate Case: 21-1010 Page: 15 Date Filed: 05/11/2021 Entry ID: 5034156
`
`9
`
`
`
`
`
`around the clock” to make sure that “food and essentials are constantly available.”
`
`Noltemeyer, supra. In that context, declining is not a viable option—as the President
`
`underscored when he tweeted: “The Defense Production Act is in full force, but
`
`haven’t had to use it because no one has said NO!” Doina Chiacu, Trump
`
`Administration Unclear over Emergency Production Measure
`
`to Combat
`
`Coronavirus, Reuters (March 24, 2020), http://reut.rs/3rS3MN5; see also Remarks
`
`by President Trump, Vice President Pence, and Members of the Coronavirus Task
`
`Force in Press Briefing, The White House (Mar. 18, 2020), https://bit.ly/2Nh91XZ
`
`(“We’ll be invoking the Defense Production Act, just in case we need it.”).
`
`Plaintiffs protest that the President did not invoke the DPA in the specific
`
`context of discussing “Tyson, meatpacking, or the food supply,” Opp.37-39, or
`
`formally invoke the specific section of the DPA allowing the government to force
`
`entities to prioritize federal contracts, Opp.35-36. But that ignores that the President
`
`had already enlisted Tyson’s support and invoked a statute empowering him to
`
`compel that support. Under those circumstances, a private company does not have
`
`to refuse to help in order to qualify for federal-officer removal. The test does not
`
`turn on coercion any more than it turns on formalities. The driver enlisted to assist
`
`federal officers in hot pursuit need neither demand formal authorization from the
`
`FBI Director nor go through a refuse-in-order-to-be-compelled charade to qualify
`
`for federal-officer removal. The same logic applies here. To hold otherwise would
`
`Appellate Case: 21-1010 Page: 16 Date Filed: 05/11/2021 Entry ID: 5034156
`
`10
`
`
`
`
`
`have significant ramifications the next time the government seeks assistance from
`
`private actors during an emergency. Private actors who work to carry out
`
`government objectives in a crisis—like continuing to provide food for the nation—
`
`should be applauded, not told they should have protested until the issuance of a
`
`formal executive order. Indeed, Plaintiffs identify “no authority for the suggestion
`
`that a voluntary relationship”—whether voluntary in fact or merely in law—
`
`“somehow voids the application of the removal statute,” and such a rule would
`
`“make[] little sense in light of the statute’s purpose.” Isaacson v. Dow Chem. Co.,
`
`517 F.3d 129, 138 (2d Cir. 2008). Simply put, those called to quickly aid the
`
`government during a national emergency should not have to first demand a formal
`
`coercive order before they take up the charge.
`
`Yet that is precisely what Plaintiffs seem to envision. Indeed, in their view,
`
`Tyson was not acting under federal direction even after the President issued
`
`Executive Order 13917, and even after the Secretary of Agriculture issued
`
`instructions explicitly directing meat-processing plants to either remain open and
`
`operating in accordance with federal guidance or submit written plans to reopen,
`
`because the federal government used words like “exhort” rather than “command.”
`
`Letter from Sonny Perdue, Sec’y of Agric., Re: Executive Order 13917 Delegating
`
`Authority Under the Defense Production Act with Respect to the Food Supply Chain
`
`Resources During the National Emergency Caused by the Outbreak of COVID-19
`
`Appellate Case: 21-1010 Page: 17 Date Filed: 05/11/2021 Entry ID: 5034156
`
`11
`
`
`
`
`
`(May 5, 2020), https://bit.ly/3syhSn5 (directing that, “[e]ffective immediately,”
`
`meat-processing plants should follow federal guidance to implement the necessary
`
`health protocols “while staying operational or resuming operations”). That
`
`argument is impossible to reconcile with the reality that the President and his
`
`subordinates can exercise their DPA authority through “informal and indirect
`
`methods of securing compliance,” not just through “formal, published regulations”
`
`or coercive orders. E. Air Lines, Inc. v. McDonnell Douglas Corp., 532 F.2d 957,
`
`992-93 (5th Cir. 1976); see Br.34-35.2 Plaintiffs’ half-hearted suggestion that some
`
`types of DPA commands could give rise to “significant due process concerns” if not
`
`issued formally, Opp.36, might give private parties a reason to resist a narrow
`
`universe of DPA commands. But it certainly does not strip private parties who
`
`comply with less formal DPA commands of their right to a federal forum.3
`
`
`2 The United States notes that Eastern Air Lines was a contract case, not a removal
`case. U.S.Br.16-17. But the basic principle—that the government may exercise its
`DPA authority informally—is precisely the same. See Br.34-35 & n.4.
`3 Plaintiffs claim that “mere compliance with a DPA prioritization or allocation
`order alone” would not meet the acting-under requirement even if the order was an
`unambiguous formal command. Opp.40. But the cases they cite involved private
`parties who simply sold products to the federal government (or even other
`government contracts), rather than producing them in accordance with federal
`directions. See Washington v. Monsanto Co., 738 F.App’x 554, 555 (9th Cir. 2018);
`Ryan v. Dow Chem. Co., 781 F.Supp. 934, 938 (E.D.N.Y. 1992). Even then,
`moreover, those courts described the “acting under” question as a “close” one.
`Bailey v. Monsanto Co., 176 F.Supp.3d 853, 870 (E.D. Mo. 2016).
`
`Appellate Case: 21-1010 Page: 18 Date Filed: 05/11/2021 Entry ID: 5034156
`
`12
`
`
`
`
`
`None of that means, as Plaintiffs and their amici claim, that everyone in a
`
`critical infrastructure industry was necessarily operating as a federal officer once the
`
`pandemic struck. Opp.43-45; see States.Br.11-15; U.S.Br.11-12. The “acting under”
`
`inquiry is fact-specific, and the facts as to one industry may well differ from another.
`
`Indeed, the reality that the federal government made greater demands of the meat
`
`processing industry than it did even of others in the food and agricultural sector is
`
`borne out by Executive Order 13917, which memorialized those demands precisely
`
`because states refused to accept the reality that the federal government was now
`
`playing a fundamentally different role vis-à-vis that industry. Moreover, others
`
`further removed from the front lines of the pandemic response have not been sued,
`
`so Plaintiffs’ floodgates concern are doubly hypothetical, while these lawsuits and
`
`the need for a federal forum for them are very real.
`
`B.
`
`Plaintiffs’ “Basic Governmental Task” Argument Is Meritless.
`
`Plaintiffs alternatively contend that even if Tyson acted under federal direction
`
`in preserving the national food supply during a national crisis, that would not justify
`
`federal-officer removal because ensuring access to a safe and stable food supply does
`
`not qualify as a “basic governmental task.” Opp.43-45. According to Plaintiffs,
`
`because “production of food” is a task that, absent emergencies, is typically “left to
`
`private entities in the marketplace,” Opp.44, a private party can never be carrying it
`
`out under the direction of the federal government. Thus, in their view, even an
`
`Appellate Case: 21-1010 Page: 19 Date Filed: 05/11/2021 Entry ID: 5034156
`
`13
`
`
`
`
`
`executive order unambiguously commanding that all private meat processing
`
`facilities operate at full capacity without regard to state law to avoid a famine would
`
`not suffice to demonstrate the “subjection, guidance, or control” necessary to satisfy
`
`the “acting under” test. Watson, 551 U.S. at 151. Plaintiffs never made that novel
`
`argument below, and the district court never adopted it. That is for good reason, as
`
`it finds no support in law or logic.
`
`Indeed, the very sentence in Watson from which Plaintiffs attempt to divine
`
`their free-floating “basic governmental task” requirement refutes any suggestion that
`
`some things the government directs private parties to do are insufficiently
`
`“governmental” to count. After all, it was in the context of illustrating why
`
`government contractors typically do qualify for federal-officer removal, even though
`
`they are hired by the government to perform tasks typically left to the private sector,
`
`that the Court explained that “[t]he assistance that private contractors provide federal
`
`officers goes beyond simple compliance with the law and helps officers fulfill other
`
`basic governmental tasks.” Id. at 153. As the Court elaborated, the tasks government
`
`contractors pe
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
