By Karen Savage
At first glance, fossil fuel companies facing climate change-related lawsuits have little in common with an Iowa meatpacking plant hoping to duck a lawsuit for allegedly not protecting its workers from Covid-19.
But Tyson Foods is emulating Exxon, Shell, Chevron, BP and other fossil fuel companies being sued for their role in climate change by arguing the pandemic-related case raises issues of federal law. The meatpacking giant contends it was acting under federal instructions, including an executive order issued by President Trump.
The fossil fuel companies argue that cases against them should be heard in federal court in part because they were issued leases by the federal government, which they say qualifies them as “federal officers.” Tyson claims that President Trump’s designation of meatpacking plants as “essential,” qualifies it as a federal officer.
Both Tyson and the fossil fuel companies are relying on the Federal Officer Removal Statute, which says that cases filed against those acting under the direction of the federal government should be heard in federal court.
Thus far, fossil fuel companies haven’t had much luck. The First, Fourth, Ninth, and Tenth Circuits have ruled that the climate cases belong in state courts and have swept aside the arguments that those federal leases make them answerable only to federal laws.
Whether Tyson will succeed remains to be seen. The lawsuit against it was filed by the family of 52-year-old Isidro Fernandez, a Tyson employee who died of Covid-19 in April. Fernandez was one of thousands of workers at the plant who tested positive for the virus.
His family alleges that the company deliberately downplayed the spread of the virus in the facility, failed to implement adequate safety protocols, and deliberately misled its workers about the risks the virus’ spread posed to their health.
“Tyson intended by these false representations to deceive workers at the Waterloo facility, including Mr. Fernandez, and to induce them to continue working despite the uncontrolled Covid-19 outbreak at the plant and the health risks associated with working at the Waterloo facility,” attorneys for the Fernandez family wrote in the complaint.
“Tyson knowingly and intentionally prioritized profits over the health, safety and well-being” of its employees, the attorneys added.
Tyson says it “worked from the very beginning of the pandemic to follow federal workplace guidelines and has invested millions of dollars to provide employees with safety and risk-mitigation equipment.”
After the case was filed in state court, Tyson moved the case to federal court in October.
The company says it “worked hand-in-hand with federal officials … to safely continue operations to secure the national food supply” and contends that the “facility was operating as part of the federally designated ‘critical infrastructure’ at the direction of, and under the supervision of, the U.S. Department of Homeland Security and the U.S. Department of Agriculture.”
Obscure Statute Gets New Attention
The principle that those acting under the direction of the federal government should be tried by federal courts has been around for more than 200 years. Customs officers enforcing a controversial trade embargo during the War of 1812 were protected by statute from being prosecuted by states that opposed the embargo.
In 1962, a U.S. Marshal assigned to protect James Meredith, the first Black student to enroll at the University of Mississippi, ordered federal officers to fire tear gas into a hostile crowd, which was attempting to block Meredith from entering the school. When the state of Mississippi charged the federal marshal with breach of peace and inciting a riot, he was protected from state prosecution.
“At that time, federal courts were seen as being a really important venue for vindicating civil rights in a situation where state courts were seen as beholden into political interest within that state,” said Sean Hecht, co-executive director of the Emmett Institute on Climate Change and the Environment at the UCLA Law Environmental Law Clinic.
The Federal Officer Removal Statute still protects those working for the federal government from prosecution in state courts. In recent years, corporations have increasingly sought that same protection. Federal courts are often perceived as friendlier to corporations, according to Hecht.
“Over the last few decades, it’s become pretty well-known that broadly, if you’re a plaintiff in the garden-variety type lawsuit, in general, you’re probably better off in state court than in federal court,” Hecht said. “There’s a general sense that state courts are places where judges have more patience and sort of see it as a normal thing to let cases go to trial and let juries decide them.”
“In the federal courts, I think there’s a little bit more of a thumb on the scale against cases getting to trial, and if the case goes to a jury, the jury pool is going to be different and that’s going to vary depending on the particular venue that you’re in,” Hecht said, adding that federal courts are also more amenable to motions for summary judgment, which favor defendants.
“The idea behind summary judgment is that one party can try to get the case disposed of before trial by forcing the other party to put up all of its evidence before trial and try to convince a judge that the evidence that they have to offer isn’t enough to even warrant the trial,” Hecht said.
“Generically, I would say it’s a quite common thing in federal court for a defendant to try to force their plaintiff to put all their evidence on the table before trial and to convince a judge that it’s just not enough,” Hecht said, adding that while those motions aren’t unusual in state courts, federal court tends to favor defendants.
What Makes a Federal Officer
Whether Tyson will succeed at getting the case heard in federal court is yet to be seen.
The Fernandez family filed a motion last week to remand the case back to state court, arguing that Tyson’s claims that it complied with federal laws and regulations do not equate with acting as a federal officer.
“Critical infrastructure or not, the government did not order Tyson to make fraudulent representations to its employees, prevent the company from providing employees with personal protective equipment, prohibit the company from implementing and enforcing social distancing measures, or forbid the company from implementing basic safety measures to protect its employees,” the plaintiffs wrote in their brief in support of remanding the case back to state court.
In an amended complaint filed last week, attorneys for the family alleged that Waterloo plant manager Tom Hart “organized a cash buy-in, winner-take-all betting pool for supervisors and managers to wager how many employees would test positive for Covid-19.”
Tyson chief executive Dean Banks said in a statement that the company is “extremely upset” about those accusations.
“We have suspended, without pay, the individuals allegedly involved and have retained the law firm Covington & Burling LLP to conduct an independent investigation led by former Attorney General Eric Holder,” Banks said, adding that the health and safety of its employees are the company’s top priority.
“If these claims are confirmed, we’ll take all measures necessary to root out and remove this disturbing behavior from our company.”
For Fernandez’ family, that promise comes too late.
“Mr. Fernandez is dead because of Tyson’s incorrigible, willful and wanton disregard for workplace safety. Instead of educating employees about the dangers of Covid-19, Tyson warned them not to discuss the virus at work. Instead of encouraging sick employees to stay home, Tyson offered $500 bonuses for perfect attendance. Instead of pausing or slowing production, Tyson redirected hogs from a neighboring plant to the Waterloo Facility,” the plaintiffs wrote in their remand memo.
“And instead of providing personal protective equipment or implementing safety measures to protect employees, Tyson aggressively lobbied President Trump and Vice President Pence for liability protections.”