Court Rules the Federal Officer Removal Statute May Provide “Critical Infrastructure” Companies Additional Pathway to Litigate COVID-19 Claims in Federal Court
The Eastern District of Texas ruled last week that Tyson, a “critical infrastructure” company, properly removed a COVID-19-related case to federal court under the federal officer removal statute, 28 U.S.C. § 1442.[1] In light of the COVID-19 pandemic, the federal government designated certain industries and sectors as “critical infrastructure” under the Patriot Act to maintain production of essential goods and services. The court’s ruling provides these companies an additional pathway to litigate COVID-19-related claims in federal court when they have a plausible federal defense, even in the absence of traditional grounds for federal jurisdiction.
Federal Officer Removal Statute
Ordinarily, the basis for federal subject matter jurisdiction to remove a case to federal court must arise from the plaintiff’s complaint; a defense based on federal law is insufficient to create federal question jurisdiction. The federal officer removal statute provides an exception to this general rule for officers of the United States and persons “acting under” an officer “for any act under color of such office.” 28 U.S.C. § 1442(a)(1).
To remove under this statute, the defendant must prove: “(1) it is a person for purposes of the statute; (2) it was ‘acting under’ a federal officer’s directions; (3) there was a connection or association between those directions and the plaintiff's claims; and (4) it can assert a colorable federal defense.”[2]
Fields v. Brown
Former Tyson meatpacking plant employees who were exposed to and contracted COVID-19 sued the company in Texas state court for negligence and gross negligence, alleging Tyson failed to provide “adequate precautions or protections” from the virus.[3] Tyson removed the case to federal court, and plaintiffs moved to remand. The court denied plaintiffs’ motion to remand, finding that federal jurisdiction existed under the federal officer removal statute.[4] Plaintiffs did not challenge that Tyson constituted a “person” under the statute, and the court found the three remaining elements of the statute were present.[5] In doing so, the court followed precedent of broadly applying the statute.[6]
First, the court found Tyson was “acting under” the directions of an officer because Tyson “exhibited ‘an effort to help assist, or carry out, the duties and tasks’” of the federal government.[7] After the federal government designated meatpacking facilities as “critical infrastructure,” Tyson communicated regularly with multiple federal agencies, coordinated with FEMA to obtain personal protective equipment for its employees, and permitted the Food Safety and Inspection Service (FSIS) to staff employees at the Tyson facility to ensure production continued.[8] Although complying with regulations in itself would not suffice to constitute “acting under” a federal officer, the court found that Tyson went beyond compliance and actively worked with multiple government agencies.[9]
Second, the court held that the federal decision to designate meatpacking facilities as “critical infrastructure” was sufficiently connected to plaintiffs’ claims against Tyson.[10] Mandating food production facilities to remain open “naturally” connected to what safety precautions those facilities put in place to continue operation in light of COVID-19.[11]
Finally, the court found that Tyson raised a “colorable federal defense” under the Poultry Products Inspection Act’s (PPIA) express preemption provisions.[12] Plaintiffs argued that the PPIA does not apply, but the court emphasized that Tyson met its burden by presenting sufficient support to show its asserted federal defense is plausible.[13] Any decision on the merits of the defense would be premature.[14]
Takeaway
Fields provides precedent for “critical infrastructure” companies to remove COVID-19-related personal injury cases to federal court. The court’s decision illustrates that many COVID-19-related claims against companies that operated under the direction of, or in coordination with, the federal government in response to COVID-19 will likely be litigated in federal court so long as the company can present a plausible federal defense.
[1] Fields v. Brown, No. 6:20-cv-00475, 2021 WL 510620 at *1 (E.D. Tex. 2021).
[2] Id. at *2.
[3] Id. at *1.
[4] Id. at *5.
[5] Id. at *2.
[6] Id. (citing Willingham v. Morgan, 395 U.S. 402, 407 (1969)).
[7] Id. at *3 (citing Watson v. Phillip Morris, 551 U.S. 142, 152 (2007)).
[8] Id.
[9] Id.
[10] Id. at *4.
[11] Id.
[12] Id. at *5.
[13] Id. at *4 (citing Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 297 (5th Cir. 2020)).
[14] Id.
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