[00:00:00] Speaker 05: Okay. [00:00:01] Speaker 05: The next argument case is number 21, 1662 Adams against the United States, Ms. [00:00:10] Speaker 05: Elkin. [00:00:25] Speaker 02: Good morning. [00:00:26] Speaker 02: May it please the court. [00:00:28] Speaker 02: My name is Molly Elkin. [00:00:29] Speaker 02: I'm very proud to be here today on behalf of 188 correctional officers who have risked their lives during the course of this global pandemic as they worked with or in close proximity to the coronavirus, the novel coronavirus, an unusual hazard, one that they worked with and in close proximity to while the rest of us were safe at home, wiping down our groceries on our front porches, [00:00:57] Speaker 02: practicing social distancing, and doing oral arguments by Zoom. [00:01:01] Speaker 02: Your honors, there can be no doubt that plaintiffs have stated a claim for relief and that the lower court's decision should be reversed. [00:01:09] Speaker 02: Let us put on our proof. [00:01:12] Speaker 02: To survive a motion to dismiss, we just have to put in our complaint, factual matter, sufficient factual matter, which, accepted as true, states a claim for relief. [00:01:23] Speaker 02: And we have met this lenient standard. [00:01:26] Speaker 02: As this court knows, [00:01:27] Speaker 02: The latch on the Rule 8 gate is a loose and forgiving one. [00:01:34] Speaker 02: This wasn't a motion to win. [00:01:35] Speaker 02: This was a request to get out of the gate. [00:01:38] Speaker 02: It's a complaint. [00:01:39] Speaker 02: And the court below erred in locking us out. [00:01:43] Speaker 02: The parties actually agree on what needs to be in the complaint for hazardous duty pay and for environmental differential pay. [00:01:50] Speaker 02: And we have put in the complaint what needs to be there for HDP, [00:01:55] Speaker 02: We had to allege that the employees worked with or in close proximity to virulent biologics. [00:02:01] Speaker 03: I think the Court of Federal Claims ruled against you because the court found the Adair case to be dispositive of this particular issue. [00:02:14] Speaker 03: Can you address Adair? [00:02:15] Speaker 02: Yes, sir. [00:02:17] Speaker 02: The Court of Federal Claims did rule against us because it found Adair to be [00:02:21] Speaker 02: That was just one of the flaws in the Court of Claims case. [00:02:25] Speaker 02: The case was severely flawed on very many levels. [00:02:29] Speaker 02: I think the most obvious flaw is that the court found that [00:02:34] Speaker 02: the coronavirus was not an unusual hazard. [00:02:37] Speaker 02: There's nothing unusual about it. [00:02:39] Speaker 02: And the court of federal claims said it's the same thing as secondhand smoke that was addressed in Adair. [00:02:45] Speaker 02: Well, the court was wrong about that. [00:02:46] Speaker 02: When is the last time this country, the world, was shut down because of secondhand smoke? [00:02:52] Speaker 02: When is the last time that we were required to wear masks and sit behind these glass things because of secondhand smoke? [00:02:59] Speaker 02: When is the last time we were told to work from home because of secondhand smoke? [00:03:03] Speaker 02: When is the last time we didn't let our kids see their grandparents for more than a year? [00:03:08] Speaker 02: for fear that our kids would kill accidentally our parents because of exposure to secondhand smoke. [00:03:13] Speaker 01: As I understand it, we have to work through these OPM regulations and figure out whether the coronavirus exposure in these prisons qualifies as defined by these regulations, whether it might be unusual fiscal hardship or unusual hazard, right? [00:03:37] Speaker 02: That is correct, Your Honor. [00:03:39] Speaker 01: So, as I understand what Judge Leto did, he said the definition for hazard duty is something where you're engaged in some dangerous activity and if [00:03:53] Speaker 01: If there's an accident, then you could really hurt yourself. [00:03:56] Speaker 01: And what's going on here is not in the nature of that kind of accident conception provided in the hazard regulation. [00:04:06] Speaker 02: And your honor, he was wrong because if you look at what the Congress said about hazardous duty pay, you're entitled to hazardous duty pay if you are subjected to an unusual hazard in the workplace. [00:04:19] Speaker 02: if your assignments require you to be subjected to an unusual hazard. [00:04:23] Speaker 02: And in this case, we have met the definition of the virulent biological within the regulation. [00:04:30] Speaker 02: It is defined as materials of micro-organic nature which, when introduced into the body, will likely cause serious disease or death and for which protective devices do not offer complete protection. [00:04:43] Speaker 02: We've met that definition. [00:04:44] Speaker 02: The Oxford definition [00:04:47] Speaker 02: Oxford definition of microorganism is materials of microscopic nature, especially bacterium, virus, or fungus. [00:04:56] Speaker 02: Even the government believes that the coronavirus is a microorganism and a virulent biological for purposes of... And I guess what my question to you would be why [00:05:06] Speaker 01: Why can we read that Appendix A provision about virulent biologicals without considering the context of what the overall backdrop definition of hazard duty is provided in the regulation, which talks about it's got to be an accident? [00:05:26] Speaker 02: Well, the regulation doesn't state that it has to be an accident. [00:05:30] Speaker 02: And the statute doesn't state that it has to be an accident. [00:05:33] Speaker 02: All it requires in the regulation itself [00:05:36] Speaker 02: is work with or in close proximity to a virulent biological. [00:05:40] Speaker 02: The accident stuff comes from the toxic chemical regulation that the Adair court was assessing in Adair. [00:05:51] Speaker 02: That is not an issue here. [00:05:53] Speaker 02: Toxic chemicals, we're not alleging we were exposed to toxic chemicals. [00:05:56] Speaker 02: And the court in Adair, Your Honor, Judge Raina, you asked this earlier, Adair does not preclude us from putting on this case. [00:06:04] Speaker 02: Adair never mentioned virulent biologicals. [00:06:07] Speaker 02: Adair never defined virulent biologicals. [00:06:09] Speaker 02: It wasn't an issue. [00:06:10] Speaker 02: Instead, the court was considering whether secondhand smoke fits within the toxic chemical category, which does talk about accidents. [00:06:18] Speaker 02: And so the toxic chemical regulation, the court said, [00:06:22] Speaker 02: It doesn't fit. [00:06:23] Speaker 02: Secondhand smoke is not a toxic chemical because toxic chemicals, as defined in the regulation, means something that would have a possibility of spillage or leakage. [00:06:33] Speaker 02: The court looked at secondhand smoke. [00:06:36] Speaker 02: There's no possibility of spillage or leakage. [00:06:39] Speaker 02: And so the court based its decision on the Adair court on the regulations plain language that talks about spillage or leakage. [00:06:48] Speaker 02: Same thing when it looked at the EDP, the Environmental Duty Regulation. [00:06:52] Speaker 02: The court looked at that regulation, and toxic chemicals in that regulation has to be something that's generated from work, like chemicals that are generated from work processes. [00:07:01] Speaker 02: And the court said, this is not that. [00:07:03] Speaker 02: This is secondhand smoke. [00:07:04] Speaker 02: It's completely different. [00:07:05] Speaker 02: And if you go back and look at the statute, it is not an unusual hazard. [00:07:10] Speaker 05: Isn't there a primary question here as to whether Danbury is any different? [00:07:20] Speaker 05: from the federal prisons around the nation. [00:07:24] Speaker 05: Do you know the status? [00:07:25] Speaker 05: Because we know in some states, I'm thinking of New York, the prisons have been identified as being in a particularly hazardous situation. [00:07:38] Speaker 05: And as I understand it, that there is some sort of controversy nationally about all federal prisons. [00:07:47] Speaker 05: Do you know anything about that? [00:07:49] Speaker 02: Well, Your Honor, this case right now is just about the 188 correctional officers at the Danbury Prison. [00:07:55] Speaker 02: But the other federal prisons, I would argue, they're the same situation. [00:07:59] Speaker 02: They are the same situation as this area. [00:08:04] Speaker 02: And if we have to prove, the government comes up with this scientist rule that just doesn't exist in the regulations. [00:08:10] Speaker 02: What the government's primary argument is that in order to state a claim for relief, [00:08:16] Speaker 02: for exposure to virulent biological, we actually have to allege that these workers worked in a lab, or that they worked with biological experimentation. [00:08:25] Speaker 02: That's not in the regulation. [00:08:26] Speaker 02: There is no scientist rule. [00:08:28] Speaker 02: But if we're allowed to put on our case, Judge, you asked about a prison, I think it's going to be the same in every federal prison, we will be able to show that these workers not only worked with a Petri dish, [00:08:41] Speaker 02: or a vial of coronavirus. [00:08:43] Speaker 02: And not that we ever have to show it. [00:08:44] Speaker 02: It's not in the regulations. [00:08:46] Speaker 02: It's not in the statute. [00:08:47] Speaker 02: But we will be able to show that in this federal prison and in perhaps other federal prisons, but that's not before you now, in this federal prison, these workers were working in the Petri dish. [00:08:57] Speaker 02: In the Petri dish. [00:08:58] Speaker 02: When we filed this complaint, Judge, there were 100 cases of coronavirus at that prison, at FCI Danbury. [00:09:05] Speaker 02: The Bureau of Prisons keeps track of the coronavirus cases. [00:09:10] Speaker 02: Now there's 234, more than doubled during the course of the pandemic. [00:09:16] Speaker 02: If you let us put on our case, we can show you that in December of 2020 at the female facility at FCI Danbury, it's a facility that housed at that point 50 inmates, 34 of those inmates had coronavirus. [00:09:32] Speaker 02: If you let us put on our proof, we can show you that any time a correctional officer was assigned to that location in December of 2020, [00:09:40] Speaker 02: They were assigned to work with coronavirus. [00:09:43] Speaker 02: If they were assigned to guard the inmates, feed the inmates, counsel the inmates, there's really no meaningful difference between the government's argument, these examples of working with the vile of coronavirus. [00:09:55] Speaker 01: This statute and set of regulations have been around for several decades. [00:10:00] Speaker 01: Are you aware of any example of a situation where virulent biologicals as defined for hazard duty pay was applied for something like an infectious disease or for something that wasn't handling some actual dangerous virus in a lab? [00:10:24] Speaker 02: Yes, Your Honor. [00:10:25] Speaker 02: I am aware of a case. [00:10:26] Speaker 02: It's a case called Abbott versus the United States. [00:10:29] Speaker 02: And in that case, which was in the 90s, I believe, the claims were claims of border patrol agents who worked along the southern border. [00:10:37] Speaker 02: And their jobs were to apprehend undocumented individuals who were crossing the border that happened to be on the border of the New River and the Tijuana River. [00:10:48] Speaker 02: And the allegation in that complaint was that when the border patrol agents are required to apprehend undocumented individuals that happened to cross into this country, [00:10:58] Speaker 02: through those rivers, which contained coliform, I believe it's called, which were virulent biologicals, they were entitled to hazardous duty pay. [00:11:07] Speaker 02: And the government said, no, you have to actually hold a vial. [00:11:10] Speaker 02: You actually have to be exposed to an actual hazard. [00:11:13] Speaker 02: And Judge Hewitt in the Court of Federal Claims said, no, no. [00:11:16] Speaker 02: No, you don't. [00:11:16] Speaker 02: Under the statute, all you have to show is that the employee is subjected to an actual hazard. [00:11:22] Speaker 02: And in that case, Judge Hewitt concluded that the Border Patrol agents had a well-plead complaint [00:11:28] Speaker 02: when they allege they were entitled to hazardous duty pay for working in and around these contaminated rivers. [00:11:33] Speaker 02: Not that they were ever assigned to go in the water and test the water. [00:11:37] Speaker 02: They never were assigned to actually touch the water. [00:11:40] Speaker 02: They were not assigned to do anything with that water except do their actual job duties, in this case, under hazardous conditions, because they were. [00:11:48] Speaker 03: Counselor, is it your argument that everybody who works in the prison or a prison [00:11:57] Speaker 03: is involved in hazardous duty. [00:12:00] Speaker 02: Your honor, I'm here before you on behalf of these 188 employees, but I believe the facts will show that in these other prison cases out there, that those employees were working with and in close proximity to coronavirus in the prison during COVID outbreaks. [00:12:19] Speaker 02: Everybody. [00:12:21] Speaker 02: Not every day, perhaps. [00:12:23] Speaker 02: It just depends on the worker's assignment. [00:12:25] Speaker 02: The example I gave was assigned to work in that female housing unit where 34 of the 50 inmates were positive. [00:12:33] Speaker 02: Oh yeah, they've stated a claim for relief. [00:12:35] Speaker 02: And as the Adair court pointed out, the legislative history supports that. [00:12:40] Speaker 02: When the statute was passed in the 1966 or so, there was testimony before Congress. [00:12:48] Speaker 02: And Chairman Lacey said to the Congress, [00:12:51] Speaker 02: In these situations where employees are performing their regular duties, such as these correctional officers, you didn't say correctional officers, but they're performing these regular duties under hazardous conditions, there should be extra pay for that. [00:13:03] Speaker 02: And that is the situation in this prison and perhaps other prisons. [00:13:07] Speaker 02: This is not a case about all federal workers. [00:13:10] Speaker 02: But when you're in a prison, you don't get the social distance. [00:13:14] Speaker 02: There's no social distancing. [00:13:15] Speaker 02: Their job is to be proximate to the coronavirus vial. [00:13:18] Speaker 02: And when I'm saying the coronavirus vial, I'm talking about the inmate infected with this disease. [00:13:23] Speaker 02: Their job is to be next to them. [00:13:25] Speaker 02: Their job is to pat them down. [00:13:27] Speaker 02: So in before times, their assignment was to pat down inmates to search for contraband. [00:13:33] Speaker 03: Now? [00:13:33] Speaker 03: In my experience of prisons and jails [00:13:37] Speaker 03: in my prior career, and even in this one, I've toured prisons and all. [00:13:44] Speaker 03: It doesn't seem to me that everybody's got the same job, that everyone's exposed to the prisoners. [00:13:50] Speaker 03: You may have somebody who comes in to work and handles correspondence or is in the front office. [00:13:59] Speaker 03: Would they be included in the 188? [00:14:02] Speaker 02: Your Honor, let us put on our case. [00:14:04] Speaker 02: That's a case for discovery. [00:14:05] Speaker 02: That's an issue on summary judgment. [00:14:07] Speaker 02: Whether we can prove that every single employee was exposed to a risk or a hazard is a question for another day. [00:14:15] Speaker 02: We have pled what we needed to plead in this case. [00:14:19] Speaker 02: And perhaps the secretary who never goes right to her desk and gets to wear a mask and sits behind the plastic and doesn't ever have to touch other equipment or touch inmates or [00:14:29] Speaker 02: break up fights or respond to body alarms, perhaps that person doesn't have a claim. [00:14:33] Speaker 02: At least, you know, we don't know yet. [00:14:34] Speaker 02: We haven't done the discovery. [00:14:36] Speaker 02: We were kicked out before we had a chance to get expert witnesses to talk about what it means to be exposed to the coronavirus. [00:14:43] Speaker 02: We were kicked out before we had a chance to get the daily assignments of all the workers to find out when the inmates had COVID. [00:14:49] Speaker 02: We'll be able to figure out damages, which is basically what you're asking about. [00:14:53] Speaker 03: It seems to me that the court construed [00:14:57] Speaker 03: parts of the statute and regulations in a way that the very key parts that we're dealing with in this case, if there's been a construction, if we reverse that, aren't we pretty much giving carte blanche to the issue, to your remedy that you seek? [00:15:17] Speaker 03: It seems to me that the court construed hazardous duties unusual and unusually severe in that type of language. [00:15:27] Speaker 02: And Your Honor, we would argue that we have done what we needed to do in order to get into court to explain why it is, when you're in a prison, which is not built for social distancing, it's crowded, it's hands-on work, it is not built for patients, it is not built to house highly contagious individuals, it's an institution behind [00:15:50] Speaker 02: thick walls. [00:15:51] Speaker 02: There's no ventilation. [00:15:52] Speaker 02: It's not like these correctional officers can open up the windows, open up the doors, and get some fresh air in there. [00:15:58] Speaker 02: Then all the bad guys leave. [00:16:00] Speaker 02: This is a prison. [00:16:03] Speaker 02: So I think, to answer your question, Judge, in this case, under these unique circumstances, you would not be overturning a dare. [00:16:13] Speaker 02: You would be allowing us to put on our case to prove that these individuals [00:16:18] Speaker 02: Based on the nature of the pandemic and this highly contagious disease and their hands-on prison guard duties inside the institution have stated a claim for relief under the hazardous duty pay regulations and the EDP regulations that are on the books now. [00:16:35] Speaker 02: You wouldn't be reversing anything. [00:16:36] Speaker 02: A dare does not require us to be kicked out of this court at all. [00:16:41] Speaker 02: It doesn't even once mention virulent biologicals, and it certainly doesn't define what the term with or in close proximity [00:16:48] Speaker 02: means. [00:16:50] Speaker 02: I see I'm out of time. [00:16:51] Speaker 05: Let's hear from the government and we'll save you a battle time. [00:17:09] Speaker 05: Mr. Lovegrave. [00:17:14] Speaker 00: Thank you. [00:17:16] Speaker 00: There's no dispute that the COVID-19 pandemic has brought new challenges for all types of workers that many essential institutions couldn't function without them. [00:17:27] Speaker 00: But that's not what this case is about. [00:17:30] Speaker 00: This case is about whether these two very specific regulations concerning work with or in close proximity to virulent biologicals or work with in close proximity to microorganisms [00:17:41] Speaker 00: apply in the scenario that's alleged here, where correctional staff are performing their ordinary duties. [00:17:49] Speaker 00: And those duties haven't changed, but what's changed is that some of the inmates and staff that they have contact with may be or are infected with COVID-19. [00:18:02] Speaker 00: The existing regulations do not apply in these circumstances, and there's no existing category that does. [00:18:08] Speaker 00: The existing categories for working with microorganisms and virulent biologicals cannot be retrofitted to meet the circumstances that are presented here, because doing so would be inconsistent with their language, the overall program, and OPM's intent. [00:18:28] Speaker 03: Aren't those issues that would be decided by the court if the matter advances beyond the pleading state? [00:18:35] Speaker 00: No, this case need not advance past the pleading stage because what my friend just said is, well, we could show that they worked with Petri dishes, but then clarified, no, actually we're going to show that they worked inside a metaphor for a Petri dish. [00:18:51] Speaker 00: We're going to characterize the prison as a Petri dish, or we're going to show that they work with vials. [00:18:58] Speaker 00: But they're not showing that they're alleging that they're actually working with vials. [00:19:03] Speaker 00: They're alleging that we work with people, and people are vials. [00:19:06] Speaker 00: But that's not the case. [00:19:08] Speaker 00: People aren't vials. [00:19:09] Speaker 03: If you have one person that can communicate a disease to another, would you say even metaphorically that this person is a vial of that disease? [00:19:20] Speaker 00: No. [00:19:21] Speaker 00: And these are regulations that are not written in terms of metaphors. [00:19:26] Speaker 00: They have specific meaning. [00:19:28] Speaker 00: The operative phrase is work with or in close proximity to. [00:19:34] Speaker 03: And in Adair, this court... Well, of course, the regulations are not written in metaphors. [00:19:43] Speaker 03: But then again, all they have to do is state a plausible case. [00:19:48] Speaker 00: Yes, and they haven't done so here. [00:19:51] Speaker 00: What they've said, the activities that they're doing, [00:19:54] Speaker 03: are not working with her in close proximity to their biologicals they're working with her in close proximity to people they involve you know uh... but but the people in the carriers they are the petri dish but they're not petri dishes they're people i mean there's an actual scenario where somebody would be working in terms of communicating the disease of being a carrier of the disease what differences are between my having the disease here in this cup putting it over there and my signal here in [00:20:23] Speaker 03: breathing pathogens, you know, out on other people. [00:20:28] Speaker 00: Well, the distinction is the duty. [00:20:32] Speaker 00: I mean, that's what matters. [00:20:33] Speaker 00: You have to be assigned to and perform a specific duty. [00:20:36] Speaker 03: The distinction is what? [00:20:37] Speaker 00: Is the duty involved? [00:20:39] Speaker 00: You know, are you assigned to or perform? [00:20:42] Speaker 03: Well, that's what they need to prove, right? [00:20:44] Speaker 00: Well, that's what they certainly need to allege that. [00:20:45] Speaker 00: What they've alleged is that they perform their official duties. [00:20:48] Speaker 03: They've alleged it. [00:20:49] Speaker 03: Why don't they get a chance to prove it? [00:20:53] Speaker 00: Because they haven't presented any... First of all, it's their job to allege in a complaint. [00:20:59] Speaker 00: you know, facts that would support this. [00:21:01] Speaker 00: And what they've said is they've performed their official duties. [00:21:03] Speaker 00: That's on a page 29 of the appendix on appeal. [00:21:07] Speaker 00: And today they've clarified, well, we pat people down. [00:21:11] Speaker 00: We serve people food. [00:21:13] Speaker 00: We break up fights. [00:21:14] Speaker 00: We, um, [00:21:15] Speaker 00: inspect and search bedding. [00:21:17] Speaker 00: We look for contraband. [00:21:19] Speaker 00: That's the duty. [00:21:20] Speaker 00: There is no category in Appendix A to either regulation to satisfy that. [00:21:28] Speaker 00: Now, what's interesting is what they're... So let's think about this. [00:21:33] Speaker 03: Let's say I get up on a particular morning and I decide whether to go to the store or not. [00:21:39] Speaker 03: If I go to the store, it may be because people are wearing a mask there. [00:21:45] Speaker 03: And I don't go to know them because nobody is. [00:21:48] Speaker 03: I know there's social distancing down at the bank, so I'm going to go to the bank. [00:21:53] Speaker 03: Things of that nature. [00:21:54] Speaker 03: That's what I would be doing. [00:21:57] Speaker 03: And I don't have a duty for any of that. [00:22:00] Speaker 03: But if I have to get up and put on a uniform and drive to a prison where we know there's COVID cases there and the conditions of a prison, as we know them, [00:22:14] Speaker 03: Then why is that not a duty that falls into these regulations? [00:22:19] Speaker 00: Because what the duty that you've described is performing your ordinary duties as correctional employees. [00:22:26] Speaker 03: Yes, that's true. [00:22:27] Speaker 03: You're performing your ordinary duties as an enforcement officer and that gives you exposure to COVID, which you normally would probably not undertake. [00:22:38] Speaker 03: I would not go to a prison if I had an option to go to it because of this very reason. [00:22:47] Speaker 03: But there's people that have to get up in the morning and show up and go to work, partly because that's their job, that's their livelihood, but also it's their duty. [00:22:58] Speaker 00: And we appreciate that. [00:23:00] Speaker 00: And we acknowledge that a lot of these- Well, that's why we have hazardous pain, duty pain, back pain. [00:23:08] Speaker 03: That's why we acknowledge that these folks are undertaking extraordinary measures in the performance of their duty. [00:23:17] Speaker 03: And we recognize that by saying, we're going to give you hazardous pay and back pay if you're entitled to it. [00:23:27] Speaker 00: Well, the distinction, Your Honor, is [00:23:29] Speaker 00: whether or not a particular duty is dangerous or hazardous or unusual, that's not where it ends. [00:23:40] Speaker 00: What you have to do is you have to go to the regulations and say, is there a regulation that applies to these circumstances? [00:23:48] Speaker 00: And so we can say that. [00:23:49] Speaker 03: Are you familiar with the OPM memorandum 2020-05? [00:23:56] Speaker 00: Yes. [00:23:56] Speaker 03: OK. [00:23:57] Speaker 03: And what does that say about COVID? [00:23:59] Speaker 03: Well, on the first page, for example, the Center for Disease Control and Prevention has determined that COVID-19 meets the definition for severe acute respiratory syndrome. [00:24:14] Speaker 03: Therefore, this novel coronavirus is a quarantinable, communicable disease. [00:24:23] Speaker 03: If you have this, you go into quarantine. [00:24:27] Speaker 03: And yet, if you work in a prison, you step into the confines of that quarantine. [00:24:34] Speaker 00: That might be a good reason for OPM to perhaps reconsider its regulations, to address circumstances it didn't contemplate at the time that it promulgated these ones. [00:24:45] Speaker 00: These ones mean something different. [00:24:46] Speaker 03: Let's look at page 11 of that same [00:24:50] Speaker 03: memorandum, hazardous duty pay related to exposure of COVID-19. [00:24:55] Speaker 03: The question was, may an employee receive hazard pay differentials or environmental differential pay if exposed to COVID-19 through the performance of assigned duties? [00:25:06] Speaker 03: And the answer is yes. [00:25:08] Speaker 03: It goes on. [00:25:09] Speaker 03: It says, thus, agency managers in consultation with occupational safety and health experts must determine whether an employee is entitled to hazard pay on a case-by-case basis. [00:25:20] Speaker 03: Why don't they get the chance to put on their case? [00:25:23] Speaker 00: Because they allegedly perform their official duties. [00:25:31] Speaker 00: The duties of correctional staff [00:25:33] Speaker 00: are not analogous to the duties associated with working with or in close proximity to virulent biologicals or microorganisms. [00:25:43] Speaker 00: And we know this because we have some context. [00:25:46] Speaker 00: We have meaning. [00:25:47] Speaker 00: In the environmental differential pay regulations, we have examples of what does this look like. [00:25:53] Speaker 00: And in Adair, the court, in construing a parallel provision concerning work with or in close proximity to as applied to toxic chemicals, [00:26:02] Speaker 00: the same language, work with or in close proximity to, that applies to microorganisms here, and it looked at those examples and said, we understand these aren't exhaustive, however, they reflect a certain type of assignment. [00:26:15] Speaker 00: These are assignments, these are scenarios in which an assignment requires an employee to work directly or indirectly with a toxic chemical as part of that job assignment. [00:26:30] Speaker 00: applying that same reasoning and that same approach to this case, we look at, well, have plaintiffs alleged that they are directly or indirectly doing anything with [00:26:46] Speaker 00: with pathogenic materials as part of a job assignment. [00:26:50] Speaker 00: And what we haven't heard ever is, yes, what we've heard is they are continuing to perform their duties. [00:26:57] Speaker 00: Those duties have become hazardous now. [00:27:00] Speaker 00: They weren't hazardous before. [00:27:02] Speaker 00: Therefore, we're entitled to payment. [00:27:04] Speaker 00: But that's not how these programs work. [00:27:06] Speaker 03: I did ask you if you were familiar with the memorandum, because I didn't want to surprise you with it. [00:27:11] Speaker 03: Yes. [00:27:11] Speaker 03: Because I realize that this was not [00:27:14] Speaker 03: part of the record, but the court did refer to another section of the memorandum. [00:27:19] Speaker 03: So on that basis, I thought it would be fair to see if you were aware of the other part. [00:27:25] Speaker 00: And what the general takeaway is there is, we've acknowledged there could be an assignment where an employee [00:27:35] Speaker 00: has to do something where that would meet the criteria for working with or in close proximity to a... What would be that something? [00:27:43] Speaker 01: What's the definition? [00:27:44] Speaker 00: Well, I think that's the tough part is that it probably doesn't arise all that often that somebody who doesn't have the knowledge and training to do that kind of work safely is going to be asked to do it. [00:27:57] Speaker 00: So I think that's why it says on some sort of case-by-case basis where the agency knows where they're assigning somebody to do this kind of work [00:28:04] Speaker 01: you know what that looks like and whether or not that I mean as I understand that memo it holds open the possibility that someone can collect hazard pay yes but it doesn't expressly explain what that possibility is and I'm asking you [00:28:21] Speaker 01: Can you just translate these regulations for us? [00:28:24] Speaker 01: What is the working principle behind? [00:28:28] Speaker 01: How do we understand whether someone qualifies for hazard pay for a virulent biological? [00:28:34] Speaker 01: Well, can you just sum it up? [00:28:36] Speaker 00: Other than the exam? [00:28:37] Speaker 00: I mean, looking at the examples, you know, what they all seem to have in common is that they are work, you know, somehow in support of the environmental differential pay microorganism. [00:28:49] Speaker 00: And also, we're looking to the ones that OPM provided at the time it promulgated these regulations. [00:28:58] Speaker 00: And even though they're in the Federal Personnel Manual and the Federal Personnel Manual is no longer operative, this court in Schmidt and Markham has stated that it's a valuable resource when construing regulations that were promulgated when it was in effect. [00:29:12] Speaker 00: And when you look at that information, the background principles, what it says is this information is [00:29:19] Speaker 00: is intended to assist agencies in identifying the types of work, the types of duty, the types of assignments that we intend these regulations to cover. [00:29:31] Speaker 00: And those are very specific. [00:29:34] Speaker 00: It's cultivating virulent organisms on artificial media. [00:29:40] Speaker 00: And it doesn't necessarily have to be a scientist necessarily. [00:29:44] Speaker 00: It could be an engineer. [00:29:45] Speaker 00: It could be someone performing autopsies. [00:29:46] Speaker 00: There are various contexts in which it arises. [00:29:49] Speaker 00: Um, but, but what it doesn't arising is a context where you're patting people down and you're searching their bedding. [00:30:00] Speaker 00: You know, no one says, you know. [00:30:02] Speaker 00: I'm searching, vetting, and therefore working with virulent biologicals. [00:30:05] Speaker 00: You gave the example of going to a supermarket, and you have the choice of whether or not you want to go. [00:30:11] Speaker 00: But if you do go, you went to the supermarket. [00:30:13] Speaker 00: That trip didn't suddenly transform that visit to a supermarket into you working with or in close proximity to virulent biologicals or micro-organisms. [00:30:23] Speaker 00: You went to the supermarket. [00:30:25] Speaker 00: And there was a new hazard that you had to prepare for. [00:30:30] Speaker 00: And that's very similar to the scenario here where people are going to work. [00:30:35] Speaker 00: Granted, a prison isn't a supermarket, but a prison isn't also a Petri dish. [00:30:39] Speaker 00: It's a prison. [00:30:40] Speaker 01: So then getting back to COVID, what kind of federal employees could qualify for hazard pay for COVID? [00:30:50] Speaker 01: What would that look like? [00:30:53] Speaker 01: You're saying, okay, it's not this, it's not that, it's not the other thing, but what would qualify? [00:30:58] Speaker 01: What's the government's view? [00:31:00] Speaker 00: Sure. [00:31:00] Speaker 00: Perhaps if somebody were performing some sort of experimentation where they had to harvest veering tissue cultures from animals, it was outside of the scope of their normal job description. [00:31:15] Speaker 00: They don't have the knowledge and training to do it, but there's some sort of emergency and they have to rush in. [00:31:20] Speaker 00: So for that day, [00:31:21] Speaker 00: because they're understaffed and no one's available, that person would get it for the day. [00:31:27] Speaker 00: But I think the larger point is that these scenarios don't arise that much because the classification process is the mechanism by which people are compensated for doing these types of duties. [00:31:43] Speaker 00: The plaintiffs have an argument that if this is the case, that people who already have the knowledge and training [00:31:51] Speaker 00: to perform these types of duties with or in close proximity to microorganisms and virulent biologicals, well, then no one would get it. [00:31:59] Speaker 00: Well, that's not a problem. [00:32:01] Speaker 00: What that reflects is that the classification system is working correctly. [00:32:09] Speaker 00: Those are the types of people, the ones with the knowledge, skills, and training that [00:32:13] Speaker 00: that the government would want to be exposing themselves to assignments involving pathogenic [00:32:24] Speaker 00: you know, microorganisms and bacteria and fungi themselves, you know, not necessarily working with people and contacting people. [00:32:33] Speaker 00: What about Abbott, the claims court case from 20 years ago? [00:32:36] Speaker 00: Well, Abbott was decided 20 years ago before this court had the opportunity to, to, um, to evaluate the work... What happened to that case? [00:32:45] Speaker 00: It never came to the federal circuit. [00:32:47] Speaker 00: Is that right? [00:32:48] Speaker 00: That's correct. [00:32:49] Speaker 00: I believe the parties resolved it on their own. [00:32:59] Speaker 05: So is your sense that a favorable decision to this petitioner would resolve the question for the entire federal prisons throughout the nation? [00:33:12] Speaker 00: It would certainly provide guidance as to how the court views these regulations. [00:33:18] Speaker 00: And to the extent that the court says, yes, we agree that to the extent that you report to a prison, [00:33:26] Speaker 00: where people are, you know, infected or potentially, they also say just potentially infected with COVID-19, that that's sufficient to state a claim under these regulations. [00:33:39] Speaker 00: Well, that would provide some very meaningful information, you know, with respect to how other cases should be treated, certainly. [00:33:48] Speaker 04: Any more questions? [00:33:50] Speaker 04: Okay. [00:33:51] Speaker 04: Thank you, Vincent. [00:33:52] Speaker 01: Thank you. [00:34:02] Speaker 02: As Judge Tapp found in the identical case involving prison workers, a case involving correctional officers at FMC Lexington, also called Adams versus US, the government's reading of this regulation to only include the person on his off day whose job was not normally to harvest the cells [00:34:32] Speaker 02: of an infected animal who had coronavirus and he did it on that day, he gets his hazardous pay. [00:34:39] Speaker 02: What kind of, why did Congress bother passing this statute? [00:34:43] Speaker 02: Why did OPM bother writing this regulation if it's only for that one guy who doesn't even know how to harvest virus from an animal? [00:34:50] Speaker 02: It's an untenable reading. [00:34:52] Speaker 02: And as Judge Tapp concluded in this identical case, the government's narrow reading of the regulations would produce absurd results. [00:35:01] Speaker 02: it would gut the hazardous duty pay regulation because under the statute, as my colleague mentioned, if the hazard was taken into account in classifying the job description, you don't get this extra pay. [00:35:16] Speaker 02: So in the situation where somebody's job is to work in the lab and harvest the animal for cells or whatever he's doing, presumably that duty was taken into account when the position was classified. [00:35:28] Speaker 02: So the rule is untenable, just as Judge Tapp found. [00:35:33] Speaker 02: The government's rule would also produce absurd results as a practical matter. [00:35:37] Speaker 02: So under the government's rule, a worker who is assigned to walk an infected test subject, somebody who's infected with coronavirus, from one room to another, states a claim. [00:35:49] Speaker 02: But the inmates [00:35:50] Speaker 02: who are working in the Petri dish, who are assigned, I'm sorry, the officers who are working in the Petri dish, who are assigned to walk an inmate affected with coronavirus from the general population unit to a special housing unit. [00:36:03] Speaker 02: They don't state a claim, case dismissed. [00:36:05] Speaker 02: That doesn't make any sense. [00:36:06] Speaker 02: It's an absurd result. [00:36:08] Speaker 02: The worker who is assigned to clean the cage of this laboratory animal infected with coronavirus states a claim. [00:36:15] Speaker 02: But my clients who are assigned to clean out the cells of infected COVID-19 inmates, case dismissed, makes no sense. [00:36:24] Speaker 02: And it's an absurd result. [00:36:26] Speaker 02: Same thing, feeding the laboratory animal. [00:36:29] Speaker 02: The guy states a claim that the laboratory animal has COVID-19. [00:36:32] Speaker 02: But the worker who has to feed the inmates and come in contact with coronavirus doesn't state a claim? [00:36:38] Speaker 02: Absurd results. [00:36:39] Speaker 02: The regulations and the examples that the government tries to hang its hat on don't support the weight of the hat. [00:36:45] Speaker 02: First of all, there are two examples. [00:36:47] Speaker 02: As Your Honor Judge Chen pointed out, there's only two examples. [00:36:51] Speaker 02: Two examples and only in the EDP regulation and only in the high degree part of the EDP regulation. [00:36:56] Speaker 02: Those non-exhaustive examples that do talk about working in a biological setting should not serve to cancel us. [00:37:04] Speaker 02: Let us put on our proof. [00:37:08] Speaker 02: Let us prove [00:37:09] Speaker 02: that these workers were the exact workers that Congress meant to protect, that Congress meant to provide extra pay for, in the words of Adair, if you go back and look at Adair, the words of Adair, performing the regular duties under unusually hazardous conditions. [00:37:27] Speaker 04: Thank you. [00:37:27] Speaker 04: Any more questions? [00:37:28] Speaker 04: Yeah. [00:37:30] Speaker 04: Anything else? [00:37:30] Speaker 02: Thank you, judges. [00:37:31] Speaker 02: Thank you. [00:37:32] Speaker 05: Thanks to both counsels. [00:37:34] Speaker 05: The case is taken under submission.