En Banc Activity / Petitions

Here is an update on recent en banc activity at the Federal Circuit. In a pending en banc case, the appellant filed his opening en banc brief. In it, he argues on-the-job exposure to the recent novel coronavirus entitled federal correctional officers to additional pay pursuant to various federal statutes. Here are the details.

En Banc Case

Opening Brief

Cody Adams filed his opening brief in a pending en banc case, Adams v. United States. This case concerns whether on-the-job exposure to the recent novel coronavirus entitled federal correctional officers to additional pay pursuant to various federal statutes. In his opening brief, Adams takes the position that “[t]he lower court’s order dismissing the Complaint for failure to state a claim should be reversed.” In support, Adams makes several arguments, including arguments responsive to the court’s order granting en banc status to this case.

Adams maintains the lower court’s order “directly contradicts an earlier decision of the Court of Federal Claims, . . . which correctly found that correctional officers had cognizable . . . claims for their exposure to COVID-19 in the course of their assigned duties.” In response to the one of the court’s questions, he contends that “the term ‘unusual’ should be understood as an abnormal, uncommon, or out-of-the ordinary hazard or risk that employees would not normally confront in performing their job duties.” In this regard, he argues “COVID-19 constituted an ‘unusual hazard’ for the correctional officers . . . because exposure to such an infectious disease was not a part of their usual job responsibilities, nor was it accounted for in their job descriptions.” Adams further argues “an accident is an unforeseen event that can lead to an injury illness, or death.” In this case, in turn, he contends the “meaning of ‘accident’ . . . is the potential exposure to COVID-19 through an infected or potentially infected inmate without safety precautions while performing assigned job duties.” Accordingly, Adams concludes that “the [hazardous duty pay] schedule supports the assertion that the Correctional Officers are entitled to [hazardous duty pay] because they perform duties under circumstances in which an accident, the potential exposure to COVID-19 without adequate protective device, could result in serious injury, illness, or death.”

Furthermore, Adams asserts that “[hazardous duty pay] and [environmental differential pay] are not limited to laboratory specific duties.” To qualify, he explains, the “Correctional Officers must show that, due to the nature of the correctional officer’s job duties, the officer may come within close proximity to an infected individual.” Adams also argues that the court should not “[read] into the high-degree hazard definition a requirement that employees work with ‘primary containers of organisms pathogenic to man.’” Alternatively, he maintains, “infected humans are the primary method for transmitting COVID-19, as they contain and incubate the virus, they should be considered ‘primary containers of organisms pathogenic for man’ for purposes of the EDP schedule.”

Lastly, Adams argues that the Court should not adopt a “scientist rule,” which “only allow[s] relief for those employees working with virulent biologicals or micro-organisms in a laboratory of scientific setting.” According to Adams, this “approach would effectively eliminate the ability of employees to receive [hazardous duty pay] and [environmental differential pay]; an outcome contrary to the purposes of the statutes when enacted by Congress.”