The federal government never instructed Tyson Foods to keep its plants open during the early months of the pandemic, according to the Department of Justice in a recent filing in a federal appeals case. Experts say the brief, along with others filed in the case, is a good sign for the plaintiffs, the relatives of four Tyson workers in Waterloo, Iowa, who died of Covid-19 last spring. It is also likely to have broad implications for other Covid-related lawsuits filed by meatpacking workers around the country.
At issue in the appeal is whether Tyson was acting under the direction of the federal government when it kept its meat plant running last year, even as Covid-19 was spreading rapidly among the plant’s workers.
Central to the meatpacker’s argument is last April’s executive order, signed by President Trump, which directed then-agriculture secretary Sonny Perdue to “take all appropriate action … to ensure that meat and poultry processors continue operations” under the authority of the Defense Production Act. The DPA allows the federal government to direct private industry to prioritize federal contracts.
Though the USDA has not issued any orders under the DPA, meat companies have repeatedly used Trump’s invocation of the law as a defense against injury claims filed in court by workers.
In this case, Tyson claims it was acting under direction from the federal government last spring when it kept its plants open, and was “obligated to aid the federal government in preventing an unprecedented national emergency from spiraling into a national food shortage.”
In its April 13 brief, the Department of Justice disputes this claim, stating that the federal government “in no way mandated that Tyson maintain its production” last year.
“Tyson stitches together government statements confirming the national interest in the continued production of food during the pandemic,” the brief reads. “But mere encouragement to maintain private production under private contracts comes nowhere close to establishing federal direction to perform a federal task.”
The federal government’s filing is “significant,” said Randy Chen, an attorney with Public Justice who also filed a brief in the case. Chen said that if the court reject’s Tyson’s argument, it would have “a lot of implications for any other worker who’s been injured at a meatpacking plant because of Covid.”
FERN has tallied nearly 59,000 cases of Covid-19 and 291 deaths among meatpacking plant workers since the pandemic began last year.
Plaintiffs in the Tyson case argue that the company didn’t take adequate measures to protect workers from the spread of Covid-19, and lied to workers about whether the virus was spreading among their co-workers. By the end of last year, more than 1,500 workers had contracted the virus at the Waterloo facility and eight had died.
The case was filed last year in Iowa’s Black Hawk County district court, but Tyson got it moved to a federal court under a statute that allows defendants to have their case heard in a federal venue if their actions were taken at the direction of a federal entity. That court rejected the company’s argument in December, and Tyson appealed to the Eighth Circuit Court, where these latest briefs were filed. The court will hear oral arguments in the coming months, according to attorneys familiar with the case.
Corporations generally prefer to litigate in federal court because conventional wisdom suggests they are more predictable and favorable to business, especially in the wake of Trump’s appointment of dozens of conservative judges.
The DOJ’s brief is important in the broader context of litigation against meatpackers for pandemic-related claims, said Adam Pulver, an attorney with Public Citizen who is lead counsel for the plaintiffs.
“It is quite persuasive and relevant that the federal government is claiming, no, you weren’t under our direction and control when you [did] these things,” Pulver said. “The federal government is saying … Tyson, you can’t pass the buck on to the federal government.”
The suit has drawn attention from 19 states and the District of Columbia, whose attorneys general filed a brief in mid-April arguing that the case should return to Iowa state court because of precedent concerns.
“Under Tyson Foods’ legal theory, an enormous number of companies could potentially avoid state court jurisdiction for COVID-related violations,” said the California attorney general’s office in a press release. “Ultimately, the argument put forward by Tyson Foods threatens the ability of states to carry out one of their core missions: protecting the health and safety of their residents and workers.”
Tyson also argues that the workers’ negligence and misrepresentation claims are preempted by the Federal Meat Inspection Act, which regulates slaughterhouse conditions in the interest of meat safety. This is an unusual argument that is “not plausible,” said Public Justice’s Chen.
“Tyson is trying to turn a law designed to protect consumers into a workplace safety law that protects slaughterhouses,” Chen said.
The Eighth Circuit court has jurisdiction over the lower courts in several meatpacking states, including Arkansas, Iowa, Nebraska, and Missouri.
FERN’s reporting has traced more than 12,500 cases and 39 deaths to Tyson plants nationwide.