En Banc Activity / Petitions

Here is an update on recent en banc activity at the Federal Circuit. In a pending en banc case raising questions related to whether on-the-job exposure to the recent novel coronavirus entitled federal correctional officers to additional pay pursuant to various federal statutes, the government filed its en banc response brief, and the Federal Circuit scheduled the case for oral argument in December. The court also invited responses to two petitions raising questions related to assignor estoppel and inter partes review estoppel. Finally, the court granted panel rehearing and denied rehearing en banc in response to a petition raising questions related to the process and standard for determining indefiniteness. Here are the details.

En Banc Case

Response Brief and Notice of Oral Argument

In Adams v. United States, the United States filed its brief in response to Adam’s opening brief. In his opening brief, Adams argued that 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, the United States argues the “[p]laintiffs did not engage in the type of extraordinary duties for which hazard pay was intended” and the Court “should affirm the dismissal of the complaint.” In support, the United States makes several arguments, including arguments directly responding to the court’s order granting en banc status to this case.

The government argues that “[p]laintiff’s claims are contrary to both Congress’s intent in adopting the HDP [hazardous duty pay] and EDP [environmental differential pay] statues, and to the language of the Office of Personnel Management’s (OPM) Implementing regulations.” In response to one of the court’s questions, the United States contends that Court should “give the term ‘unusual[]’ its ordinary meaning: not usual, uncommon.” The United States explains that under “statutory delegation and consistent with Congress’ intent that HDP be available only for unusual hazards that are ‘not usually involved in carrying out the duties of [an employee’s] position,’ OPM has identified unusual hazards in the HDP schedule, which sets forth specific duties reflecting ‘duty involving unusual physical hardship or hazard . . . and in the EDP schedule, which sets forth categories of ‘duty involving unusually severe working conditions or unusually severe hazards.'” Consequently, the United States concludes that plaintiffs “are incorrect that SARS-CoV-2 meets the definition of an unusual hazard” because “exposure to communicable illnesses via close contact with others is inherent in the types of functions that plaintiffs perform as correctional workers,” which “contrasts with the types of extraordinary hazards that OPM has long concluded merit HDP and EDP.”

The government further argues that “accident” “should be given its ordinary meaning.” Specifically for “hazards involving virulent biologicals or micro-organisms,” the government contends “‘accident’ is best understood to mean an adverse event flowing from a particular assignment to work with or in close proximity to the agent.” And, it continues, “incidental” means “something subordinate to something of greater important; having a minor role.” And in “the HDP and EDP context, this means to that to qualify as a compensable hazard, the exposure of a virulent biological or micro-organism must be more than a by-product of an assigned duty.” Rather, it goes on, “the focus of the assigned duty must be the virulent biological or micro organism itself.” The United States concludes that in this situation the “performance of job duties [did] not require working with SARS-CoV-2, and only incidentally may have exposed employees to the virus,” which “does not constitute hazardous duty under 5 C.F.R. § 550.902 for which HDP is available.” Furthermore, the United States explains that “plaintiffs’ claim in their brief [that] the ‘prison environment’ is itself an accident” would “gut[] the meaning of the word” and “open[] the door for all employees in the environment to claim that they have been exposed to a hazard, contrary to the very limited situations that Congress envisioned.”

The United States also asserts that “to satisfy the phrase ‘work with or in close proximity to,’ an employee must be assigned to work with or in close proximity to virulent biologicals where the focus of the work is the biological material itself.” The United States explains that “[t]his understanding does not necessarily mean that only employees working in a laboratory setting are entitled to receive hazard pay for working with virulent biologicals or micro-organisms.” The Untied States rebuts the argument that the “key limitation” is “that an employee would need to be in proximity to ‘potentially infected individuals'” and contends that these “so-called limitations are illusory.” The United States explains that “it is unclear how agencies could determine when hazard pay must be paid if all that is required is for some individual to have had a diagnosed case of COVID-19″ because this would “include not just prisoners, who have been the focus of plaintiffs’ briefing and arguments, but also other correctional workers, custodial workers, prison health workers, administrative workers, etc.”

In response of another of the court’s questions, the United States argues that a “container” should be afford its “ordinary and usual meaning,” which is “one that contains, such as a receptacle (such as a box or jar) for holding goods.” In particular, the government maintains, “[a] human being would not normally be thought of” as “a receptacle such as a box or jar.” Furthermore, the United States elaborates that “EDP regulations specifically describe what ‘container’ means in this context,” providing examples such as “culture flasks, culture test tubes, hypodermic syringes and similar instruments.” The United States concludes that “[c]onstruing the term ‘primary container’ to include human beings would significantly depart from these examples and violate a well-established canon of statutory construction: noscitur a sociis, which holds that a word is known by the company it keeps.”

Finally, the United States concludes that “[a] critical component of satisfying their burden to state a claim . . . is for the plaintiffs to plausibly allege that their work with a virulent biological or micro-organism was itself an assigned duty, i.e., that the focus of their assignment was the virulent biological or micro-organism itself, and that any exposure to such a substance was not just incidental to the performance of their normally assigned duties.” But, the government says, “[p]laintiffs do not contend that they were specifically tasked to work with or in close proximity to a virulent biological or micro-organism, and we therefore do not believe that the extra details that plaintiffs have said they would add regarding the ordinary job duties performed by correctional workers could establish their entitlement under the applicable statutes and regulations.”

The Federal Circuit issued a Notice of Oral Argument, scheduling this case for oral argument on December 9.

En Banc Petitions

New Invitations for Response

The Federal Circuit invited responses to the petitions in the following cases:

New Denial

In Nature Simulation Systems Inc. v. Autodesk, Inc., a case that raised questions related to the process and standard for determining indefiniteness, the Federal Circuit issued a modified panel opinion indicating the panel had granted panel rehearing but also an order denying rehearing en banc

As mentioned, the panel granted rehearing to issue its modified opinion. The new opinion, like the first opinion, is authored by Judge Newman, reverses a district court’s judgment of invalidity for lack of definiteness, and includes a dissent by Judge Dyk. Judge Newman and Judge Dyk both, however, substantially rewrote their competing opinions.

The modified majority opinion adds additional discussion of the specification of the relevant patent, highlighting that language the district court stated is not present in the claims is found in the specification. The panel’s new majority opinion also emphasizes that the district court’s approach “was not the correct standard for evaluating whether the claims met the standard for definiteness.” According to the panel, the district court had held that a claim term is indefinite, as a matter of law, if there are any “unanswered questions” about the term. The panel’s modified opinion explains that the “claims set forth the metes and bounds of the invention; they are not intended to repeat the operation of the method as described in the specification.”