Easom v. US Well Servs., Inc.

• Decision Date: 15 June 2022
• Docket Number: 21-20202
• Citation: 37 F.4th 238
• Parties: Scott EASOM; Adrian Howard ; John Nau, Plaintiffs—Appellants, v. US WELL SERVICES, INCORPORATED, Defendant—Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

37 F.4th 238

Scott EASOM; Adrian Howard ; John Nau, Plaintiffs—Appellants,

v.US WELL SERVICES, INCORPORATED, Defendant—Appellee.

No. 21-20202

United States Court of Appeals, Fifth Circuit.

FILED June 15, 2022

Gabriel Amin Assaad, Matthew Stephen Yezierski, Attorney, McDonald Worley, P.C., Houston, TX, Galvin Bernard Kennedy, Kennedy Law Firm, L.L.P., Houston, TX, for Plaintiffs-Appellants.

David Matthew Korn, Esq., Clerc Higgins Cooper, Mark D. Fijman, Phelps Dunbar, L.L.P., New Orleans, LA, for Defendant-Appellee.

Jeffrey B. Dubner, Democracy Forward Foundation, Washington, DC, for Amici Curiae Communications Workers of America, Service Employees International Union, American Federation of Teachers, American Federation of State, County and Municipal Employees.

Gerard J. Sinzdak, Catherine Meredith Padhi, U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC. for Amicus Curiae United States Department of Labor.

Philip Andrew Miscimarra, Bryan Michael Killian, Morgan, Lewis & Bockius, L.L.P., for Amicus Curiae Chamber of Commerce of the United States of America.

Before Stewart, Clement, and Elrod, Circuit Judges.

Carl E. Stewart, Circuit Judge:

Scott Easom, Adrian Howard, and John Nau (collectively, "Appellants") filed this interlocutory appeal seeking reversal of the district court's order denying their motions for summary judgment and reconsideration. In its order denying Appellants' motions, the district court certified two questions for interlocutory appeal: (1) Does COVID-19 qualify as a natural disaster under the Worker Adjustment and Retraining Notification Act's ("WARN Act" or "the Act") natural-disaster exception, 29 U.S.C. § 2102(b)(2)(B) ?; (2) Does the WARN Act's natural-disaster exception, 29 U.S.C. § 2102(b)(2)(B), incorporate but-for or proximate causation?

In response, we hold that the COVID-19 pandemic is not a natural disaster under the WARN Act and that the natural-disaster exception incorporates proximate causation. We therefore REVERSE and REMAND for proceedings consistent with this opinion.

I. FACTS & PROCEEDINGS

Appellants filed a class action complaint against their former employer, US Well Services, Inc. ("US Well") for allegedly violating the WARN Act by terminating them without advance notice. The WARN Act requires covered employers to give affected employees sixty days' notice before a plant closing or mass layoff. 29 U.S.C. § 2102(a). The Act provides three exceptions to the notice requirement—including the natural-disaster exception, under which no notice is required. Id. § 2102(b).

By way of background, oil producers hire US Well to perform hydraulic fracturing services known as fracking. When the price of oil drops below a commercially viable price, oil producers—including those that hire US Well—often discontinue work. In early March 2020, oil prices plummeted to historic lows due to a price conflict between Saudi Arabia and Russia. This effect was compounded by a decline in travel and decreased demand for oil and gas during the COVID-19 pandemic. As a result, several of US Well's customers curtailed or completely shut down the fracking work US Well had been performing at multiple well sites in Texas. When crew members, including Appellants, returned from the well sites to their respective headquarters after shutting down operations, they were immediately informed that they were laid off. Appellants' termination letters, dated March 18, 2020, and effective immediately, stated: "Your termination of employment is due to unforeseeable business circumstances resulting from a lack of available customer work caused by the significant drop in oil prices and the unexpected adverse impact that the Coronavirus has caused."

Appellants filed this suit on August 26, 2020, and amended their complaint on October 14, 2020. The parties cross-moved for summary judgment. US Well argued that COVID-19 was a natural disaster under the WARN Act, and consequently, that it was exempt from the WARN Act's notice requirement pursuant to the natural-disaster exception. Appellants countered that COVID-19 was not a natural disaster and was not a direct cause of their layoffs. The district court concluded that COVID-19 was a natural disaster and that the natural-disaster exception uses but-for causation standards. It denied both motions for summary judgment, however, on grounds that the record did not show whether COVID-19 was the but-for cause of the layoffs. Appellants moved for reconsideration or, in the alternative, certification of three questions for interlocutory appeal. The district court denied the motion for reconsideration but certified two questions for interlocutory appeal: (1) Does COVID-19 qualify as a natural disaster under the WARN Act's natural-disaster exception?; (2) Does the WARN Act's natural-disaster exception incorporate but-for or proximate causation?

II. STANDARD OF REVIEW

"Although we ordinarily review a district court's summary judgment ruling de novo, our appellate jurisdiction under § 1292(b) extends only to controlling questions of law, thus, we review only the [questions] of law certified for appeal." Tanks v. Lockheed Martin Corp. , 417 F.3d 456, 461 (5th Cir. 2005). We do not review whether either party has shown "that there is [a] genuine dispute as to any material fact" under Rule 56. FED. R. CIV. P. 56(a) ; see La. Patients' Comp. Fund Oversight Bd. v. St. Paul Fire & Marine Ins. Co. , 411 F.3d 585, 588 (5th Cir. 2005) ; Malbrough v. Crown Equip. Corp. , 392 F.3d 135, 136 (5th Cir. 2004). Instead, we determine de novo whether the district court properly interpreted the WARN Act's natural-disaster exception. See Tanks , 417 F.3d at 461.

III. ANALYSIS

The WARN Act prohibits an employer from ordering "a plant closing or mass layoff until the end of a [sixty]-day period after the employer serves written notice of such an order" to affected employees. 29 U.S.C. § 2102(a). Employers who violate § 2102 are required to provide aggrieved employees "back pay for each day of violation." Id. § 2104(a)(1)(A). "To prove a WARN Act claim, a plaintiff must demonstrate that: (1) the defendant was ‘an employer’; (2) the defendant ordered a ‘plant closing’ or ‘mass layoff’; (3) the defendant failed to give to the plaintiff sixty days['] notice of the closing or layoff; and (4) the plaintiff is an ‘aggrieved’ or ‘affected’ employee." In re TWL Corp. , 712 F.3d 886, 897 (5th Cir. 2013) (quoting §§ 2102, 2104 ).

"If a plaintiff establishes these requirements, the employer may avoid liability by proving that it qualifies for the Act's ‘faltering company’ exemption, or that the closing or layoff resulted from ‘unforeseen business circumstances’ or a ‘natural disaster.’ " Id. at 897–98 (citing 20 C.F.R. § 639.9 (1989) ). Relevant here, the WARN Act's natural-disaster exception provides that "[n]o notice under this chapter shall be required if the plant closing or mass layoff is due to any form of natural disaster, such as a flood, earthquake, or the drought currently ravaging the farmlands of the United States." 29 U.S.C. § 2102(b)(2)(B).

Section 2107(a) of the WARN Act requires the Secretary of Labor to "prescribe such regulations as may be necessary to carry out this chapter." 29 U.S.C. § 2107(a). "Such regulations shall, at a minimum, include interpretative regulations describing the methods by which employers may provide for appropriate service of notice as required by this chapter." Id. To that end, the Department of Labor has explained the following regarding the natural-disaster exception to the notice requirement:

(1) Floods, earthquakes, droughts, storms, tidal waves or tsunamis and similar effects of nature are natural disasters under this provision.

(2) To qualify for this exception, an employer must be able to demonstrate that its plant closing or mass layoff is a direct result of a natural disaster.

(3) While a disaster may preclude full or any advance notice, such notice as is practicable, containing as much of the information required in [ 20 C.F.R.] § 639.7 as is available in the circumstances of the disaster still must be given, whether in advance or after the fact of an employment loss caused by a natural disaster.

(4) Where a plant closing or mass layoff occurs as an indirect result of a natural disaster, the exception does not apply but the "unforeseeable business circumstance" exception described in paragraph (b) of this section may be applicable.

20 C.F.R. § 639.9(c)(1)–(4) (the "DOL regulation"). Further, the Department of Labor has clarified that "[t]he employer bears the burden of proof that conditions for the exceptions have been met." Id. § 639.9. We now turn to the certified questions.

A. Whether COVID-19 qualifies as a natural disaster under the WARN Act's natural-disaster exception

Appellants argue that COVID-19 does not qualify as a natural disaster under the WARN Act. We agree.

When interpreting a statute, a court must "start with the specific statutory language in dispute." Murphy v. Smith , ––– U.S. ––––, 138 S. Ct. 784, 787, 200 L.Ed.2d 75 (2018). "A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning." Perrin v. United States , 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979).

Because the WARN Act does not define "natural disaster," we turn to the "ordinary meaning of the word ... as understood when the [Act] was enacted." See Carcieri v. Salazar , 555 U.S. 379, 388, 129 S.Ct. 1058, 172 L.Ed.2d 791 (2009). "Ordinarily, a word's usage accords with its dictionary definition." Yates v. United States , 574 U.S. 528, 537, 135 S.Ct. 1074, 191 L.Ed.2d 64 (2015). "But we do not ‘make a fortress out of the dictionary.’ " Chapman v. Durkin , 214 F.2d 360, 362 (5th Cir. 1954) (quoting Farmers Reservoir & Irrigation Co. v. McComb , 337 U.S. 755, 764, 69 S.Ct. 1274, 93 L.Ed. 1672 (1949) ).

When the WARN Act was enacted in 1988, the term "natural disaster" was...