Case: 22-10050 Document: 00516570548 Page: 1 Date Filed: 12/07/2022
`
`United States Court of Appeals
`for the Fifth Circuit
`
`
`No. 22-10050
`
`
`Simon Garcia; Rebecca Garcia; Jose Campos;
`Christopher Garcia,
`
`
`United States Court of Appeals
`Fifth Circuit
`
`FILED
`December 7, 2022
`
`Lyle W. Cayce
`Clerk
`
`Plaintiffs—Appellants,
`
`
`
`versus
`
`
`Swift Beef Company; Manny Guerrero; Ashley Henning;
`Jacob Montoya; Donna Estrada,
`
`
`Defendants—Appellees.
`
`
`
`
`Appeal from the United States District Court
`for the Northern District of Texas
`USDC No. 2:20-CV-263
`
`
`
`Before Higginbotham, Duncan, and Engelhardt, Circuit Judges.
`Per Curiam:*
`
`Plaintiffs sued their managers and employer, Swift Beef Company, for
`gross negligence in Texas state court alleging that they contracted COVID-
`19 while working at one of the corporation’s plants. After the employer
`removed the case to federal court, the district court found federal officer
`
`
`
`* This opinion is not designated for publication. See 5th Cir. R. 47.5.
`
`
`
`
`United States Court of Appeals
`for the Fifth Circuit
`
`
`No. 22-10050
`
`
`Simon Garcia; Rebecca Garcia; Jose Campos;
`Christopher Garcia,
`
`
`United States Court of Appeals
`Fifth Circuit
`
`FILED
`December 7, 2022
`
`Lyle W. Cayce
`Clerk
`
`Plaintiffs—Appellants,
`
`
`
`versus
`
`
`Swift Beef Company; Manny Guerrero; Ashley Henning;
`Jacob Montoya; Donna Estrada,
`
`
`Defendants—Appellees.
`
`
`
`
`Appeal from the United States District Court
`for the Northern District of Texas
`USDC No. 2:20-CV-263
`
`
`
`Before Higginbotham, Duncan, and Engelhardt, Circuit Judges.
`Per Curiam:*
`
`Plaintiffs sued their managers and employer, Swift Beef Company, for
`gross negligence in Texas state court alleging that they contracted COVID-
`19 while working at one of the corporation’s plants. After the employer
`removed the case to federal court, the district court found federal officer
`
`
`
`* This opinion is not designated for publication. See 5th Cir. R. 47.5.
`
`
`
`
`Case: 22-10050 Document: 00516570548 Page: 2 Date Filed: 12/07/2022
`
`No. 22-10050
`
`removal jurisdiction, but we subsequently held that there was no jurisdiction
`in Glenn v. Tyson Foods, Inc based on similar facts.1 As the facts of this case
`do not materially differ from those in Glenn, we vacate the district court’s
`orders dismissing the plaintiff-employees’ claims and denying remand to
`state court, and we remand to the district court for further proceedings
`consistent with this opinion.
`
`I.
`
`The plaintiff-employees in this case filed suit in Texas state court
`
`alleging negligence and gross negligence against their managers for failing to
`provide a safe work environment during the COVID-19 pandemic. The
`employees then amended their complaint to include Swift Beef Company,
`which removed to federal court based on federal question jurisdiction,2
`diversity jurisdiction,3 and federal officer jurisdiction.4 The employees
`moved to remand the case back to Texas state court, arguing that none of
`these bases provided the district court with jurisdiction. The district court
`determined that it had jurisdiction under the federal officer removal statute
`according to this court’s guidance in Latiolais v. Huntington Ingalls, Inc.5 In
`reaching that conclusion, the court reasoned that the defendant-employer
`acted at the direction of a federal officer because an April 2020 presidential
`proclamation designated the company “critical infrastructure,” satisfying
`one of the Latiolais test’s three prongs. The district court then granted the
`managers’ motion to dismiss under Texas state law providing that the
`
`1 40 F.4th 230 (5th Cir. 2022).
`2 28 U.S.C. § 1331.
`3 28 U.S.C. § 1332.
`4 28 U.S.C. § 1442.
`5 951 F.3d 286 (5th Cir. 2020).
`
`
`
`2
`
`
`
`Case: 22-10050 Document: 00516570548 Page: 3 Date Filed: 12/07/2022
`
`No. 22-10050
`
`individual defendants had no independent duty to their fellow employees.
`The court also granted Swift Beef Company’s motion to dismiss because the
`plaintiff-employees failed to state a claim under Texas’s Pandemic Liability
`Protection Act. The employees timely appealed, arguing that Swift Beef
`Company failed to establish federal jurisdiction and that the district court
`erred in granting the motions to dismiss.
`
`After the employees appealed, this court concluded in Glenn that a
`
`food production company does not act at the direction of a federal officer
`under Latiolais simply because the government designated its facilities
`“critical infrastructure” during the COVID-19 pandemic.6 Neither did
`heavy regulation or encouragement to remain open indicate federal direction,
`given that the federal government did not instruct the company to continue
`operations.7 The relevant facts and arguments in this appeal are not
`distinguishable in any relevant way from those in Glenn, compelling the
`conclusion that Swift Beef Company failed to establish federal jurisdiction
`over the employees’ claims through the federal officer statute.8
`
`As the district court did not address the parties’ arguments regarding
`
`other bases for federal jurisdiction, we will not address those issues for the
`first time on appeal.9 As Swift Beef Company has not demonstrated that
`
`
`
`6 40 F.4th at 234–35.
`7 Id. at 235–37.
`8 See also Fields v. Brown, No. 21-40818, 2022 WL 4990258 (5th Cir. Oct. 3, 2022)
`(reaching a similar conclusion); Wazelle v. Tyson Foods, Inc., No. 22-10061, 2022 WL
`4990424 (5th Cir. Oct. 3, 2022) (same).
`9 See, e.g., Rutila v. Dep’t of Transportation, 12 F.4th 509, 511 n.3 (5th Cir. 2021)
`(“But, ‘mindful that we are a court of review, not of first view,’ we opt not to seek out
`alternative grounds on which we might uphold the judgment.” (quoting Cutter v.
`Wilkinson, 544 U.S. 709, 718 n.7 (2005))); Montano v. Texas, 867 F.3d 540, 546–47 (5th Cir.
`
`3
`
`
`
`Case: 22-10050 Document: 00516570548 Page: 4 Date Filed: 12/07/2022
`
`No. 22-10050
`
`federal courts have jurisdiction over the employees’ claims, we likewise do
`not reach the merits.10
`
`****
`
`We VACATE the district court’s orders dismissing the plaintiff-
`employees’ claims and denying remand to state court. This case is
`REMANDED to the district court for further proceedings consistent with
`this opinion.
`
`
`
`2017) (noting that we are a “court of review, not of first view” and remanding a matter not
`addressed by the district court for examination in the first instance (quotation omitted)).
`10 See Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007)
`(“‘Without jurisdiction the court cannot proceed at all in any cause’; it may not assume
`jurisdiction for the purpose of deciding the merits of the case.” (quoting Steel Co. v. Citizens
`for Better Env’t, 523 U.S. 83, 94 (1998))).
`
`4
`
`
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