By Danielle Nichole Smith

Law360 (April 29, 2020, 8:44 PM EDT ) Smithfield Foods urged a federal judge Wednesday to toss a nonprofit workers group's suit alleging the company endangered employees at a Missouri processing facility in light of a recent executive order from the president, while the group contended the company's arguments were "flimsy."

In their notice of supplementary authority, Smithfield Foods Inc. and Smithfield Fresh Meats Corp. told the Missouri federal court that President Donald Trump's executive order Tuesday giving the U.S. secretary of agriculture authority over meat processors' operations warranted the immediate dismissal of the suit from the Rural Community Workers Alliance and an unnamed Smithfield employee.

The suit alleges that Smithfield is running a plant in Milan, Missouri, without following guidelines from the Centers for Disease Control and Prevention, as well as from state officials, on how to reduce the spread of COVID-19, and asks the federal court to step in with a preliminary injunction.

But Smithfield said Wednesday that the court had to defer to the secretary of agriculture under the executive order and that the relief the plaintiffs sought would be unenforceable given the president's mandate.

Additionally, the order recognized the purpose of the so-called primary jurisdiction doctrine — which the company had invoked in an earlier motion to dismiss — that is to avoid inconsistent regulation, Smithfield contended.

"The risk of such inconsistencies is 'undermining critical infrastructure during the national emergency,'" Smithfield said. "That is why President Trump delegated all authority to the secretary of agriculture."

There was no need for a hearing in the case, the company argued, saying that uncertainty could disrupt the supply chain the president sought to protect with the order and that the suit should be "dealt with as quickly as possible."

But the Rural Community Workers Alliance rebuffed the notice in an opposition Wednesday, pointing out that the company had "strenuously argued" the case couldn't be heard because the Occupational Safety and Health Administration had primary jurisdiction before it contended that jurisdiction belonged to the secretary of agriculture.

"To state the obvious, if the agency with 'expertise' changes day to day, there is no agency to which the court should defer," the group said.

Ultimately, Smithfield's notice showed that its claim about primary jurisdiction was "always flimsy and is even more so now," the group contended. 

Additionally, the U.S. Department of Agriculture had repeatedly said that workplace safety wasn't reasonably related to the Federal Meat Inspection Service's food safety mission, according to the group. So the notion of deferring to its authority in that area was "absurd."

"Our clients seek to ensure that Smithfield complies with basic CDC guidance to protect plant workers and the wider community," Juno Turner, an attorney for the group and worker, told Law360 in a statement Wednesday. "Nothing in Smithfield's papers provides a basis to dismiss our clients' claims."

Counsel for Smithfield didn't respond Wednesday to requests for comment.

The parties also lodged several other filings with the court on Wednesday, including an opposition to the plaintiffs' motion for a preliminary injunction from Smithfield and a different opposition to Smithfield's emergency motion to dismiss the suit from the Rural Community Workers Alliance.

The plaintiffs are represented by Gina Chiala of the Heartland Center for Jobs and Freedom, David Seligman and Juno Turner of Towards Justice, and David S. Muraskin, Karla Gilbride and Stevie K. Glaberson of Public Justice.

Smithfield is represented by Jean Paul Bradshaw II and Mara Cohara of Lathrop GPM LLP, and Alexandra B. Cunningham and Susan F. Wiltsie of Hunton Andrews Kurth LLP.

The case is Rural Community Worker's Alliance et al. v. Smithfield Foods Inc. et al., case number 5:20-cv-06063, in the U.S. District Court for the Western District of Missouri.

--Editing by Jack Karp.

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