Buljic v. Tyson Foods, Inc.

22 F.4th 730

Hus Hari BULJIC, individually and as administrator of the estate of Sedika Buljic; Honario Garcia, individually and as administrator of the estate of Reberiano Leno Garcia; Miguel Angel Hernandez, as co-administrator of the estate of Jose Luis Ayala, Jr.; Arturo de Jesus Hernandez, as co-administrator of the estate of Jose Luis Ayala, Jr., Plaintiffs - Appellees

v.TYSON FOODS, INC.; Tyson Fresh Meats, Inc.; John H. Tyson; Noel W. White; Dean Banks; Stephen R. Stouffer; Tom Brower, Defendants - Appellants

Mary Oleksiuk; Elizabeth Croston, Defendants

Tom Hart, Defendant - Appellant

Hamdija Beganovic; James Cook ; Ramiz Muheljic; Gustavo Cabarea; Pum Pisng; Alex Bluff; Walter Cifuentes; Muwi Hlawnceu, Defendants

Cody Brustkern, Defendant - Appellant

Mark Smith ; John Does 1-10, Defendants

Bret Tapken; John Casey; James Hook, Defendants - Appellants

United Food and Commercial Workers International Union; State of California; State of Maryland; State of Delaware; State of Minnesota ; State of Colorado; State of Connecticut ; State of Hawaii ; State of Illinois ; State of Maine ; State of Massachusetts; State of Michigan ; State of Nevada ; State of New Mexico ; State of New York; State of Oregon ; State of Pennsylvania; State of Rhode Island; State of Washington ; State of Wisconsin ; District of Columbia; United States; Public Justice, Amici on Behalf of Appellee(s)

Oscar Fernandez, individually, and as administrator of the estate of Isidro Fernandez, Plaintiff - Appellee

v.Tyson Foods, Inc.; Tyson Fresh Meats, Inc.; John H. Tyson; Noel W. White; Dean Banks; Stephen R. Stouffer; Tom Brower, Defendants - Appellants

Mary Oleksiuk; Elizabeth Croston, Defendants

Tom Hart, Defendant - Appellant

Hamdija Beganovic; James Hook; Ramiz Muheljic; Missia Abad Bernal; John and Jane Does 1-10, Defendants

Cody Brustkern; John Casey; Bret Tapken, Defendants - Appellants

United Food and Commercial Workers International Union; State of California; State of Maryland; State of Delaware; State of Minnesota ; State of Colorado; State of Connecticut ; State of Hawaii ; State of Illinois ; State of Maine ; State of Massachusetts; State of Michigan ; State of Nevada ; State of New Mexico ; State of New York; State of Oregon ; State of Pennsylvania; State of Rhode Island; State of Washington ; State of Wisconsin ; District of Columbia; United States; Public Justice, Amici on Behalf of Appellee(s)

No. 21-1010

No. 21-1012

United States Court of Appeals, Eighth Circuit.

Submitted: September 23, 2021

Filed: December 30, 2021

Counsel who presented argument on behalf of the appellants and appeared on the appellants’ brief was Paul D. Clement, of Washington, DC. The following attorney(s) also appeared on the appellants’ brief; Nicholas A. Klinefeldt, of Des Moines, IA., Erin Murphy, of Washington, DC., C. Harker Rhodes, IV, of Washington, DC., David Yoshimura, of Des Moines, IA.

Counsel who presented argument on behalf of the appellees and appeared on the appellees’ brief was Adam R. Pulver, of Washington, DC. The following attorney(s) also appeared on the appellees’ brief; Thomas P. Frerichs, of Waterloo, IA., John Jay Rausch, of Waterloo, IA., Mel C. Orchard, III, of Jackson, WY., Gabriel Phillips, of Jackson, WY., George Bryan Ulmer, III, of Jackson, WY., Scott L. Nelson, of Washington, DC.

Counsel who presented argument for amicus curiae United States, on behalf of the appellees, and appeared on the amicus brief of the United States was Lindsey Powell, USDOJ, of Washington, DC. The following attorney(s) also appeared on the amicus brief of the United States; Michael Raab, USDOJ, of Washington, DC.

The following attorney(s) appeared on the amicus brief of United Food and Commercial Workers International Union; Jay Madison Smith, of Sioux City, IA., Joey Hipolito, of Washington, DC., Sarai King, of Washington, DC.

The following attorney(s) appeared on the amicus brief of Public Justice, P.C.; Karla Gilbride, of Washington, DC., Randolph Chen, of Washington, DC.

The following attorney(s) appeared on the amicus brief of the States of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Washington, Wisconsin and District of Columbia; Silas Shawver, AAG, of Oakland, CA., Anna Kirsch, AAG, of Oakland, CA.

Before KELLY, ERICKSON, and GRASZ, Circuit Judges.

KELLY, Circuit Judge.

In these two cases, Plaintiffs-Appellees are relatives of individuals who worked at the Tyson Foods pork processing facility in Waterloo, Iowa, contracted COVID-19 (allegedly at work), and later died. Defendants-Appellants are Tyson Foods, executives of Tyson Foods, and supervisors at Tyson's Waterloo facility (collectively, Tyson). Plaintiffs assert claims for fraudulent misrepresentation and gross negligence, contending that Tyson's actions in March and April of 2020 caused their relatives' deaths. Tyson removed both cases to federal court and now appeals the district court's¹ orders remanding them to state court. We consolidated the cases and, having jurisdiction under 28 U.S.C. § 1447(d), now affirm.

I. Background²

A. The Federal Response to the COVID-19 Pandemic

On March 13, 2020, then-President Donald Trump declared the COVID-19 pandemic a national emergency. Proclamation No. 9994, 85 Fed. Reg. 15,337 (Mar. 18, 2020). In the weeks and months that followed, the federal government took steps to stem the spread of the virus and to address disruptions in various industries. Some of those steps included working with certain industries to ensure they had the necessary supplies to continue operating. For example, on the same day that the President declared a national emergency, the Cybersecurity Infrastructure Security Agency (CISA) held a conference call with representatives of several industries, including Tyson, to discuss procuring and delivering critical supplies, such as Personal Protective Equipment (PPE). Similar communications continued over the following days and months.

Federal officials also publicly emphasized the importance of specific industries—including the meat-processing industry—and of maintaining operations during the pandemic. On March 15, 2020, after holding a conference call with food industry representatives, President Trump announced that the food and retail sectors were "working hand-in-hand with the federal government as well as the state and local leaders to ensure food and essentials are constantly available," adding that the leaders assured him that "they're going to work 24 hours around the clock, keeping their store stocked." At a press briefing on April 7, Vice President Mike Pence reiterated the importance of the food supply industry and thanked members of the industry—including Tyson—for keeping grocery store shelves stocked.

The United States Department of Agriculture (USDA), which regulates the meat-processing industry, similarly issued statements about responding to the pandemic. In a March 16 statement, the USDA explained that it "remain[ed] committed to working closely with industry to fulfill [its] mission of ensuring the safety of the U.S. food supply and protecting agricultural health." The statement noted that facility inspections would continue and that USDA field personnel would work closely with facility management and state and local health authorities. A few days later, the USDA's Food Safety and Inspection Service (FSIS)—which is tasked with inspecting slaughterhouses and meat products—sent a letter to facility managers and FSIS field employees explaining that FSIS sought a "united effort" with industry partners and providing guidance about screening FSIS employees for COVID-19 at facilities.

As uncertainty grew and state and local officials adopted differing responses to the COVID-19 pandemic, the federal government issued additional guidance about the virus and about industries it considered critical. On March 16, President Trump issued the "Coronavirus Guidelines for America," which outlined specific steps aimed at slowing the spread of the virus. The Guidelines also stated that employees who "work in a critical infrastructure industry ... such as healthcare services and pharmaceutical and food supply ... have a special responsibility to maintain [their] normal work schedule" and "should follow" guidance from the Centers for Disease Control (CDC) "to protect [their] health at work." A few days later, CISA issued guidance to assist "State, Local, and industry partners in identifying" critical infrastructure workers during the COVID-19 response, which included a list of dozens of suggested critical infrastructure workers within numerous sectors. The memorandum accompanying the guidance stated that CISA "recognize[d] that State, local, tribal, and territorial governments are ultimately in charge of implementing and executing response activities in communities under their jurisdiction, while the Federal Government is in a supporting role." In one bolded passage, the memorandum emphasized that the list of critical infrastructure employees was "advisory in nature" and was "not, nor should it be considered to be, a federal directive or standard in and of itself." Elsewhere, the memorandum explained that "State and local officials should use their own judgment in ... issuing implementation directives and guidance" and that "critical infrastructure industry partners will use their own judgment, informed by this list, to ensure continued operations."

In March and early April, there were signs that the federal government was contemplating more direct control over certain critical industries, including through the Defense Production Act (DPA), 50 U.S.C. § 4511.³ At a March 18 press briefing, President Trump forecasted, "We'll be invoking the Defense Production Act, just in case we need it." Notably, however, the President did not mention the food industry, meat processing, or Tyson in his comments about the DPA. Six days...