This morning the Federal Circuit released a precedential en banc opinion in an employment case appealed from the Court of Federal Claims. The en banc court held that the Office of Personnel Management to date has not adopted regulations that provide for differential pay based on COVID-19 in various workplace settings. Notably, Judge Reyna dissented in an opinion joined by Judge Newman. The Federal Circuit also released a nonprecedential opinion dismissing a veterans case appealed from the Court of Appeals for Veterans Claims. The Federal Circuit also issued a nonprecedential order transferring a case to the Ninth Circuit and another nonprecedential order dismissing two appeals. Finally, the Federal Circuit released two Rule 36 judgments. Here are the introductions to the opinions, text from the order, and links to the dismissal and Rule 36 judgments.

Adams v. United States (Precedential) (en banc)

This case involves differential payment programs established by the Office of Personnel Management (OPM), via regulations promulgated pursuant to 5 U.S.C. §§ 5545(d) and 5343(c)(4), to provide hazardous duty and environmental differential pay to federal employees. Plaintiffs-Appellants appeal from a Court of Federal Claims (Claims Court) decision dismissing their broad claims for hazardous duty and environmental differential pay (along with related overtime, interest, and attorneys’ fees and costs) based on allegations that they “work[ed] with or in close proximity to objects, surfaces, and/or individuals infected with” the novel coronavirus (COVID-19) “without sufficient protective devices.” This appeal was initially argued before a panel of the court on October 6, 2021. Prior to disposition by the panel, however, we sua sponte ordered en banc review. Oral argument before the en banc court was held on December 9, 2022. . . . We conclude that OPM simply has not addressed contagious-disease transmission (e.g., human-to-human, or through human-contaminated intermediary objects or surfaces) outside two settings not present here—e.g., certain situations within laboratories and a jungle-work situation. Although OPM might well be able to provide for differential pay based on COVID-19 in various workplace settings, it has not to date adopted regulations that do so. Under existing regulations, we affirm.

REYNA, Circuit Judge, with whom NEWMAN, Circuit Judge, joins, dissenting.

Appellants are one hundred and eighty-eight current or former correctional employees of the Department of Justice, Bureau of Prisons, assigned to work at the federal prison located in Danbury, Connecticut. Appellants filed a complaint with the U.S. Court of Federal Claims asserting that they were entitled to additional compensation commonly known as hazardous duty pay (“HDP”) and environmental differential pay (“EDP”), for work performed while exposed to COVID-19.

The government moved to dismiss the complaint under Rule 12(b)(6) of the Rules of the United States Court of Federal Claims. The Court of Federal Claims granted the motion and dismissed Appellants’ complaint on grounds that it did not allege a plausible claim for relief. Appellants appealed the dismissal of their complaint.

The question before us is simple: whether Appellants’ complaint states plausible claims for HDP and EDP. As shown below, the answer is “yes” for various reasons. For example, the Court of Federal Claims adopted overly narrow interpretations of the applicable statutes and regulations. In addition, the government made several admissions and concessions during the en banc argument that clarified in the affirmative the question of whether the COVID-19 pandemic gave rise to HDP and EDP. These admissions are consistent with extrinsic material referenced in the complaint that showed that COVID-19 exposure could give rise to HDP and EDP, and that at least one other department of the government was already paying COVID-19 related HDP and EDP compensation. Finally, the Court of Federal Claims departed from established law on Rule 12(b)(6) determinations by requiring actual proof of HDP and EDP eligibility—no less under its restrictive, overly narrow interpretations of the statute and regulations—instead of inquiring whether Appellants have alleged a plausible claim under the plain terms of the statutes and regulations.

Under the correct statutory and regulatory interpretations, and in view of the plain and unambiguous meaning of the words of the statutes, I believe that Appellants have pleaded sufficient facts to satisfy both key elements needed to plead HDP and EDP. I would thus reverse the Court of Federal Claims.

But there is more. In this case, experience sheds light on the fundamental question of whether, at the time of the complaint, Appellants plausibly worked “unusually” hazardous duties involving “work with or in close proximity to” a virulent biological or microorganism. We all have personal COVID-19 experiences. While those personal experiences are not part of the record before the court, certain national experiences are, as are their transformative effect.

It is clear that the COVID-19 pandemic adversely affected our workplaces, schools, airlines, hotels, meat-packing houses, and hospitals. Schools, businesses, and churches closed under government order. We all went virtual because it was not safe to gather at weddings, funerals, and hospital bedsides. Even courthouses were momentarily shuttered on the premise that COVID-19 was in the streets roaring like a lion. We cannot shake off those experiences like dust from a rug.

Davis v. McDonough (Nonprecedential)

Stanley L. Davis appeals the decision of the United States Court of Appeals for Veterans Claims (Veterans Court) affirming the Board of Veterans Appeals’ (Board) denial of an earlier effective date for Mr. Davis’s service connected disability under 38 C.F.R. § 3.156(b) and vacating and remanding the Board’s denial under § 3.156(c). Because the Veterans Court’s decision is not final, we dismiss.

Cabezas v. Flint Group, LLC (Nonprecedential Order)

While Flint Group urges dismissal, under the circumstances, we deem it the better course to transfer the case pursuant to 28 U.S.C. § 1631 to the United States Court of Appeals for the Ninth Circuit, which may consider, for example, timeliness of the appeal in light of the apparent lack of entry of a separate judgment following the district court’s August 18, 2022, dismissal order. . . .


The appeal and all its filings are transferred to the United States Court of Appeals for the Ninth Circuit pursuant to 28 U.S.C. § 1631.


Rule 36 Judgments