Argument Recap / En Banc Activity

Earlier this month, the Federal Circuit held an en banc session to hear oral argument in Adams v. United States. In this case, the court is considering 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 recap.

Molly A. Elkin argued for Adams. She began by arguing Adams and the other employees of a federal correctional institute are entitled to Hazardous Duty Pay (HDP), as Congress intended, because they were unable to work remotely. Chief Judge Moore immediately asked whether all Federal Circuit employees are entitled to HDP because she issued an order requiring the employees resume in-person work relatively early in the pandemic. Elkin responded that Federal Circuit employees are not because Congress intended for HDP to have occupational and temporal limits.

One judge asked Elkin whether she is basing her claim on the relevant statute or the relevant regulations. Elkins replied that her clients fell within both. She agreed with the judge, however, that if Adams did not qualify under the regulations, then his claim fails. Elkins argued that her clients satisfied the HDP regulations before they do any work in close proximity with virulent biologicals.

Next, Judge Cunningham asked what the specific temporal limitations were. Elkin explained that her clients needed to work with virulent biologicals on a day-by-day basis. Judge Newman followed up by inquiring how the presence of the vaccine affects this requirement. Elkin responded that, once the vaccines became readily available, her clients did not qualify for HDP.

Two judges presented Elkins with questions about whether humans qualified as a container under HDP and Environmental Differential Pay (EDP) regulations. Elkins acknowledged that humans were not a listed example, but she argued that a human and biopsy material, a listed example, are equivalent.

Chief Judge Moore circled back to her initial question. Elkin distinguished her clients from all Federal Circuit employees by emphasizing her clients could not socially distance from the prisoners. Judge Taranto followed this line of questioning, asking Elkin about whether, if the court found for her, every government employee would be eligible for HDP due to exposure to someone with COVID. Elkins responded that the employees’ job duties must be analyzed, and she said most employees do not have the required duty of being in close contact with infected individuals. Judge Taranto continued his questioning, inquiring about which duties would differentiate Adams from a regular federal employee. In response, Elkins emphasized how prison guards are required to be in prolonged close-quarter contact with prisoners and coworkers to maintain safety within their institutions. After Judge Taranto indicated this close-quarter contact would include many federal employees, Elkins argued that most federal employees worked remotely during the pandemic or had safety measures installed.

Judge Reyna posed a hypothetical about a maintenance team that works in small teams and whether that team would qualify for HDP and EDP. Elkins answered in the affirmative, but she said a plaintiff would have that prove that they came into contact with an infected individual.

Judge Taranto asked why Adams did not ask the United States Office of Personal Management (OPM) to change the relevant regulation rather than litigate this issue. In response, Adams argued that the regulations already cover the situation without any amendments. Judge Taranto then referenced the OPM’s issued guidance and posed a hypothetical about two prison guards, where one searches prisoners and one watches video cameras in a watchtower. He asks Elkin if only the former guard qualifies for HDP. Elkins agreed that only the former guard would qualify because plaintiffs need to prove that their job duties put them in close proximity to a virulent biological.

Judge Newman next asked whether if Elkin had any data about how many correctional officers were infected and their rate of infection. Elkin responded that the current appeal concerns a motion to dismiss and indicated that data will be uncovered in discovery.

Brian M. Boyton argued on behalf of the United States. Judge Dyk immediately asked whether OPM could add pandemics as another category that qualifies as an “unusual hazard” for HDP. Boyton responded that, yes, OPM has the authority to amend the categories of eligibility for HDP, but he expressed concerns about the potential implication of the major questions doctrine.

Judge Taranto asked why the court should not defer to the OPM’s March 2020 announcements. Boyton responded that the March memo is not a rule because it did not go through the proper rulemaking process. He clarified, however, that the government’s position is consistent with the memo. He pointed the court to the Federal Personnel Manual as a more relevant guidance. Boyton elaborated that the Personnel Manual provides examples of “in proximity to,” and he said these examples do not include anything like an officer worker with a potentially infected co-worker.

Changing the subject, Judge Cunningham inquired about a supposed “scientist rule.” Boyton denied the existence of a scientist rule, that only scientists are eligible for HDP. He provided a hypothetical of a centrifuge technician being eligible for HDP when repairing a centrifuge. Judge Taranto posed a hypothetical about a janitor working in a lab. Boyton responded that the key inquiry is whether the focus of a government employee’s assigned duties is related to the virulent biological or microorganism. Consequently, he said, a prison guard who is tasked with maintaining order in a prison does not qualify, but a janitor cleaning a lab with virulent biologicals would be eligible for HDP if the employee was directed to work with the biologicals.

Judge Dyk then asked whether the HDP and EDP determination would be determined on a case-by-case basis by the relevant agency and whether any federal agencies paid HDP and EDP for COVID. Boyton answered that the Indian Health Service briefly provided HDP for anyone working at a health station or hospital, but he did not remember any other agencies doing so.

Chief Judge Moore later inquired about the job description requirement, given that prior to COVID job descriptions likely did not mention of working with a pandemic. She asked whether a job should include an expectation of working with virulent biologicals. Boyton responded by pointing out that this is not the first pandemic or epidemic the country has experienced.

Judge Taranto expressed concerns with the government’s interpretation of the regulations. Boyton explained that when an employee works with an infected person, it does not qualify as working with a virulent biological. Regarding the “in close proximity to” requirement, Boyton argued that the guidance and case law explains that working with a petri dish and flasks are considered working in proximity, not incidental exposure. Judge Dyk challenged Boyton’s distinction and asked whether human-to-human contact could give rise to HDP or EDP. Boyton argued that, if human-to-human contact qualifies as “in close proximity,” then there is no limiting principle. Chief Judge Moore then asked whether the government’s regulatory “in close proximity” interpretation includes human-to-human exposure. Boyton stated that exposure to individual people is not included by the regulations. Judge Hughes then asked where the line is, to which Boyton responded that the line is an employee is not eligible for HDP or EDP for working with an infected person, which is different than working with the virulent biological itself. Judge Dyk reiterated his inquiry about the meaning of “in close proximity” in the statute. Boyton relied upon a case and the Federal Personnel Manual. In the case, he said, smoke was constantly in the air, but this was not considered “in close proximity to.”

In rebuttal, Elkin asserted that the government was unable to distinguish between working with a vial of coronavirus and working with a human with coronavirus. Elkin argued that this case provides a bright line because the prison workers can trace their COVID exposure to a specific source. Chief Judge Moore challenged Elkin’s statement that this case provides a bright line. She suggested that Elkins needs to amend her complaint because the accusations she has alleged are not in the complaint. Judge Dyk inquired about the difference between the flu and COVID under the HDP and EDP regulations. Elkin respondd that the statute requires an unusual hazard and the regulatory definition of virulent biological requires something that could cause seriousness illness or death, which the flu does not do. Judge Taranto then asked whether the regulation should be interpreted to limit the “in close proximity” limitation to situations where the microorganism is the reason for the employees presence. Elkin argued that the statute does not provide any limitation where the virulent biological is the subject of the work. Rather, she argued, the statute says an employee is entitled to pay for any period where the employee is subjected to a hazard not usually present in carrying out the duties of the relevant job. Judge Dyk then asked for the relevant timeframe for the complaint. Elkin responded that the complaint provides a claim for relief from the start of the pandemic until the day vaccines were readily available. Chief Judge Moore asked the final question, whether Adam’s proposed definition includes both potential exposure and actual exposure, to which Elkin responded in the affirmative.

We will report on the Federal Circuit’s disposition of this case.