Argument Preview / En Banc Activity

Next week, in an en banc session, the Federal Circuit will hear oral arguments in Adams v. United States, a federal benefits case. The arguments will address whether on-the-job exposure to the recent novel coronavirus entitles federal correctional officers to additional pay pursuant to various federal statutes. This is our argument preview.

In his opening brief, Adams argues 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 support, Adams makes several arguments, including arguments responsive to the court’s order granting en banc status to this case.

Adams first argues that, as used in 5 U.S.C. §§ 5343(c)(4) and 5545(d), “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 also argues, as used in 5 C.F.R. § 550.902, “an accident is an unforeseen event that can lead to an injury illness, or death.” Accordingly, Adams concludes, “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.”

Adams next asserts that “[hazardous duty pay] and [environmental differential pay] are not limited to laboratory specific duties.” Adams 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 argues, “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.” Finally, Adams argues that the court should not adopt a “scientist rule,” because 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.”

In its response brief, 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.” Accordingly, says the government, 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,” which in this case “is best understood to mean an adverse event flowing from a particular assignment to work with or in close proximity to the agent.” Furthermore, the United States explains, “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.” 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,” and, it goes on, the “EDP regulations specifically describe what ‘container’ means in this context,” providing examples such as “culture flasks, culture test tubes, hypodermic syringes and similar instruments.” 

Finally, the United States concludes, “[a] critical component of satisfying their burden to state a claim . . . is for the plaintiffs to plausibly allege . . . 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.”

In his reply brief, Adams maintains “the “Correctional Officers risked their own lives and went above and beyond to help protect the country during an unprecedented time.” According to Adams, if “these acts do not qualify for hazard pay, then HDP [hazardous duty pay] and EDP [environmental differential pay] statutes are essentially worthless.” In support, Adams makes several arguments.

Adams first argues that “COVID-19 is undeniably an usual hazard faced by the Correctional Officers.” He contends “the Government’s claim that exposure to communicable diseases is part of the Correctional Officer’s job was made up . . . and [] inconsistent with the Government’s own position description for the job.” Furthermore, says Adams, the “Correctional Officers easily meet” the statutory requirement of “performing regular duties under new and unusually hazardous circumstances or conditions.” Adams also refutes the government’s assertion that “the hazard at issue is ‘exposure to communicable disease[s].’” Instead, Adams argues, “any new variant of any communicable disease that is deemed sufficiently unusual and dangerous such that it can cause serious disease or death should merit HDP or EDP if it is not taken into account in the position description.”

Adams rejects the government’s argument that “unusual” should be understood to “exclude situations in which the hazard is present everywhere, including prisons.” Adams explains that this “definition is narrow and only a small set of employees would encounter such ‘accidents’ under the definition.” Furthermore, Adams argues, the “Government’s ‘Scientist’ Test is a blatantly incorrect, nonsensical interpretation of the regulation.” Adams elaborates by arguing the government’s test “completely swallows any eligibility for HDP” and that “no one can come up with an example of an eligible employee because such an example does not exist.” Thus, Adams says, the government’s “proposed limitation . . . should be rejected.”

Finally, Adams argues that “humans are the vessels by which COVD-19 spread throughout the globe,” making humans “the ‘primary containers of organisms pathogenic for man.’” Adams argues “the EDP regulations in fact do support the contention that human beings are primary containers” because one “of the examples of a primary container is ‘biopsy and autopsy material,’” meaning “the human body can be a ‘primary container.’” Adams concludes by stating the complaint “contains sufficient details to plausibly allege a claim for HDP and EDP.”

Two amicus briefs were filed, both in support of Adams:

  • In the first amicus brief, the American Federation of Labor and Congress of Industrial Organizations argue “the unambiguous terms of both the hazard and environmental pay statutes apply to corrections officers working during the depth of the pandemic.”
  • In the second amicus brief, the National Treasury Employees Union argues that, “if this Court affirms the lower court’s incorrect legal rulings,” “it would effectively foreclose hazardous duty pay claims across the board for employees who have exposed themselves to the deadly COVID-19 virus through their official duties.” 

Oral argument in this case will be heard on Friday of next week, December 9. We will keep track of the case and report on any developments.