July 7, 2022, opinions

Posted on by tadbartlett

Designated for publication

  • Glenn v. Tyson Foods, Inc., 21-40622, c/w Chavez v. Tyson Foods, Inc., 21-11110, appeals from E.D. Tex. and N.D. Tex.
    • Willett, J. (Willett, Engelhardt, Wilson), federal officer jurisdiction, removal
    • Affirming district courts’ remand orders for claims against Tyson Foods arising from its decision to keep its poultry processing plants open during the early months of the COVID-19 pandemic, rejecting argument that Tyson was acting under the direction of the federal government in doing so, for purposes of federal officer jurisdiction. “Tyson received, at most, strong encouragement from the federal government. But Tyson was never told that it must keep its facilities open. Try as it might, Tyson cannot transmogrify suggestion and concern into direction and control.”
    • Tyson, along with other food processors, was designated as critical infrastructure. Pursuant to an executive order, the USDA issued a letter to such businesses that they “should utilize” CDC and OSHA guidance, and that closed processing plants “should” submit documentation regarding health and safety protocols and reopen “as soon as they are able after implementing the CDC/OSHA guidance for the protection of workers.” The letter was nonbinding, but included the provision that action would be taken under the Defense Production Act and by Executive Order “if necessary.”
    • Plaintiffs filed suits arising from contracting COVID-19 while working at two Tyson facilities.
    • The Court held that the government’s “critical infrastructure” pronouncements and guidance did not give rise to federal officer jurisdiction. “Far from deputizing huge swaths of the economy, the federal government’s critical infrastructure designations amounted to strong advice to business and state and local governments that certain industries should keep operating in spite of COVID-19 risks.” Tyson argued that it was in much closer relationship to USDA due to interaction with food inspectors, “[b]ut this only shows that Tyson was subject to heavy regulation–not that it was an agent of the federal government.” The Court distinguished other voluntary-relationship cases on the basis that those cases arose where the removing defendant was directly fulfilling a government contract: “Packaging poultry for private parties is far afield from assembling aircraft or manufacturing munitions for Uncle Sam. The problem is not that Tyson’s relationship with the federal government was voluntary. The problem is the absence of any evidence of delegated authority or a principal/agent relationship at all.”
  • Manyweather v. Woodlawn Manor, Inc., 21-30718, appeal from W.D. La.
    • Smith, J. (Smith, Duncan, Oldham), removal
    • Affirming remand of state-law claims after dismissal of federal claims, in suit brought against nursing home and its insurer by survivors of nursing home resident who contracted COVID-19 and died.
    • The Court held that the Public Readiness and Emergency Preparedness Act did not preempt plaintiffs’ state law claims such that they really arose under federal law. The Court held that the PREP Act did not render the state-law claims as “federal” under the narrow complete-preemption corollary. The Court held that the PREP Act does not preempt state-law negligence claims, and that even if the plaintiffs had brought willful-misconduct claims, such claims could not have been brought under the PREP Act.
    • The Court also held that the district court did not abuse its discretion in declining to continue exercising supplemental jurisdiction over the state law claims.

Unpublished

  • Jacobs v. Wells, 19-30783, appeal from M.D. La.
    • per curiam (Wiener, Dennis, Haynes), prisoner suit
    • Vacating dismissal of prisoner’s excessive force claim, and remanding for reconsideration in light of Santos v. White, 18 F.4th 472, 476 (5th Cir. 2021), and Aucoin v. Cupil, 958 F.3d 379, 381-83 (5th Cir. 2020).
  • Washington v. UTMB, 20-20434, appeal from S.D. Tex.
    • per curiam (Davis, Jones, Elrod), prisoner suit
    • Remanding to district court to rule on outstanding Rule 59(e) motion for reconsideration of judgment dismissing prisoner’s § 1983 claim.
  • Tikum v. Garland, 20-60863, petition for review of BIA order
    • per curiam (Barksdale, Costa, Engelhardt), immigration
    • Dismissing in part and denying in part Cameroonian citizen’s petition for review of BIA order denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture.
  • U.S. v. Vega, 21-10463, appeal from N.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Jones v. City of Monroe, 21-30735, appeal from W.D. La.
    • per curiam (Davis, Jones, Elrod), employment discrimination, Title VII
    • Affirming summary judgment dismissal of plaintiff’s employment discrimination claims.
  • U.S. v. Montoya-Ortiz, 21-50326, appeal from W.D. Tex.
    • per curiam (Smith, Duncan, Oldham), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Ross, 21-50656, appeal from W.D. Tex.
    • per curiam (Richman, Ho, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Lopez-Garcia, 21-51018, appeal from W.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry.