[00:00:00] Speaker 10:
21-1662 Adams v. United States.

[00:00:05] Speaker 10:
Ms.

[00:00:05] Speaker 10:
Elkin, please proceed.

[00:00:07] Speaker 11:
Thank you, Chief Judge.

[00:00:09] Speaker 11:
And may it please this giant court.

[00:00:12] Speaker 11:
Thank you for your interest in this important case.

[00:00:15] Speaker 11:
Convening en banc, su espante, in a case where a panel decision did not issue, it's unusual.

[00:00:22] Speaker 11:
It's uncommon.

[00:00:24] Speaker 11:
It's out of the ordinary.

[00:00:26] Speaker 11:
It's happened maybe two or three times in the last 25 years.

[00:00:30] Speaker 11:
And as unusual as it is, it is nowhere as unusual as the once in a century global pandemic that shut the world down and sent us to our basement to wait out the storm.

[00:00:45] Speaker 11:
Like most of the workforce, the federal workforce, we got to work from home.

[00:00:49] Speaker 11:
We got to isolate in our pods.

[00:00:51] Speaker 11:
We got to do oral arguments via Zoom.

[00:00:54] Speaker 11:
We got to do everything in our power to stay safe and to stay alive.

[00:00:59] Speaker 11:
But not my clients.

[00:01:00] Speaker 11:
Not these first responders, not these brave 180 plus correctional officers at FCI Danbury, who are in this court seeking hazardous duty pay, the duty pay that Congress intended for them for this kind of situation where they worked under unusually hazardous conditions.

[00:01:19] Speaker 11:
They did not get to wait out the storm.

[00:01:21] Speaker 11:
They went head first into the unprecedented storm.

[00:01:23] Speaker 10:
Just out of curiosity, just out of curiosity council.

[00:01:25] Speaker 10:
My very first act as chief judge was to issue an administrative order making all Federal Circuit employees come back to work.

[00:01:33] Speaker 10:
This was quite a while ago and relatively early in the stage of what you refer to as the pandemic.

[00:01:41] Speaker 10:
Are all of these employees, every one of them likewise entitled to hazardous duty pay?

[00:01:46] Speaker 10:
Is that what Congress also intended?

[00:01:48] Speaker 11:
No, Your Honor.

[00:01:49] Speaker 11:
Why not?

[00:01:50] Speaker 11:
Well, I don't know when your order issued, but our case has limitations on it.

[00:01:55] Speaker 11:
It has limitations for temporal limitations as well as occupational limitations.

[00:02:01] Speaker 11:
And so Congress intended for it to apply to unusual hazards.

[00:02:05] Speaker 10:
And you think Congress intended it to apply in some temporal or occupational context?

[00:02:10] Speaker 11:
Yes, because of the way that the statute is written and the way that the regulations are written, absolutely.

[00:02:20] Speaker 11:
The Congress.

[00:02:21] Speaker 10:
We know Congress doesn't break the regulations, right?

[00:02:23] Speaker 10:
Right.

[00:02:23] Speaker 11:
But the OPM, sorry, OPM was given the authority to write these regulations.

[00:02:29] Speaker 13:
Could I be clear?

[00:02:31] Speaker 13:
Are you relying solely on regulations?

[00:02:33] Speaker 13:
You're saying that your clients fit within the regulations?

[00:02:36] Speaker 13:
Or are you separately also relying on the statute?

[00:02:40] Speaker 11:
We're relying on both, Your Honor, because the statute applies to unusual hazards and working under unusually hazardous conditions.

[00:02:48] Speaker 11:
And that's exactly what we have here.

[00:02:50] Speaker 11:
COVID-19, without doubt.

[00:02:52] Speaker 13:
So you're saying that even if we were to conclude that you haven't brought yourself within the regulations, that you can still argue for recovery under the statute, even if the regulations are inapplicable?

[00:03:05] Speaker 11:
I don't think we're saying that at all, Your Honor.

[00:03:07] Speaker 11:
I think we fall squarely within both the statute and within the regulations themselves.

[00:03:13] Speaker 13:
OK, so is the answer that if you can't bring yourself within the regulations, you lose?

[00:03:17] Speaker 11:
Yes, that is the answer because OPM was delegated the authority to put these regulations out and they put out a regulation that says that if you are working with or in close proximity to a virulent biological or a microorganism, then you are entitled to hazardous duty pay.

[00:03:33] Speaker 11:
or environmental differential pay.

[00:03:35] Speaker 11:
We think the regulations should be given the chevron deference that they deserve.

[00:03:40] Speaker 11:
They're clear on their face.

[00:03:41] Speaker 10:
Regulations don't get chevron deference counsel.

[00:03:43] Speaker 10:
They get outward deference.

[00:03:44] Speaker 11:
Well, they should be given the deference that they deserve, which is that our clients went

[00:03:51] Speaker 11:
They went into this unprecedented storm where the airborne virulent biologicals and the microorganisms were raining down on them.

[00:03:58] Speaker 11:
And they did.

[00:03:59] Speaker 09:
Yes.

[00:03:59] Speaker 09:
What are the temporal limitations?

[00:04:01] Speaker 09:
You alluded to some.

[00:04:02] Speaker 09:
What are they specifically?

[00:04:03] Speaker 11:
Specifically, the temporal limitations are twofold.

[00:04:07] Speaker 11:
One is that we have to prove on a day-by-day basis that the workers were working with or in close proximity to virulent biologicals.

[00:04:16] Speaker 11:
And we will be able to do that in this case because the Bureau of Prisons

[00:04:21] Speaker 11:
You can look on the Internet after this argument.

[00:04:23] Speaker 11:
They put out a COVID-19 dashboard, and in that dashboard, it says on a day-by-day basis,

[00:04:30] Speaker 11:
How many inmates have COVID?

[00:04:32] Speaker 08:
What about in the intervening period?

[00:04:34] Speaker 08:
People started wearing masks.

[00:04:36] Speaker 08:
Everyone was wearing masks.

[00:04:37] Speaker 08:
After that, people were getting vaccinated.

[00:04:39] Speaker 08:
So pretty much everybody, but not everybody.

[00:04:42] Speaker 08:
So do we calculate who was vaccinated and who wasn't?

[00:04:45] Speaker 08:
How do we ever implement something like that?

[00:04:48] Speaker 11:
The way it is implemented, Judge, is that the temporal proximity is twofold.

[00:04:52] Speaker 11:
One is on a day-by-day basis.

[00:04:53] Speaker 11:
The other one is when the vaccines came out.

[00:04:56] Speaker 11:
When there were vaccines,

[00:04:58] Speaker 11:
Then the hazard, we don't meet the regulation anymore, because the hazard is no longer something that the Verlian Biological... Well, you said when the vaccines came out, you have to figure out whether the people that are at stake had the vaccines, right?

[00:05:12] Speaker 11:
That's a more accurate way to say it.

[00:05:14] Speaker 11:
It's not when they came out, it's when they became readily available to the correctional officers.

[00:05:17] Speaker 11:
And that's easy to figure out once we're in discovery.

[00:05:20] Speaker 11:
That's a discovery question.

[00:05:21] Speaker 10:
But once the vaccines were readily- One interesting thing about this is you never answered my original question, which is, why doesn't it apply to every federal worker who was ordered back to work under those circumstances?

[00:05:30] Speaker 11:
Because this case is not about every federal worker.

[00:05:33] Speaker 11:
I mean, the government would like you to think that the sky is falling.

[00:05:36] Speaker 11:
It's not.

[00:05:37] Speaker 11:
There's not going to be opening up the floodgates.

[00:05:39] Speaker 11:
The only gate that should open is the latch on this Rule 8 gate, because we've met our burden.

[00:05:44] Speaker 11:
Does every federal worker have that?

[00:05:47] Speaker 11:
your office, your clerks.

[00:05:49] Speaker 11:
They could come in.

[00:05:50] Speaker 11:
They could be in an office.

[00:05:51] Speaker 11:
They could be able to socially distance.

[00:05:54] Speaker 11:
They could have good ventilation.

[00:05:55] Speaker 11:
They could pop open a window.

[00:05:57] Speaker 11:
My clients couldn't do that.

[00:05:58] Speaker 12:
Counsel, you referred to viral and biologicals, which are in the regulation.

[00:06:04] Speaker 12:
Would these viruses

[00:06:14] Speaker 12:
Isn't that what Maryland Biologicals refers to?

[00:06:19] Speaker 11:
Your Honor, it doesn't have that kind of limitation in the regulation at all.

[00:06:22] Speaker 12:
The regulation simply says that you were with... These are possibly potentially sick people, and those are not Maryland Biologicals.

[00:06:31] Speaker 11:
That's how we carried, that's how the virus was spread, was through

[00:06:36] Speaker 11:
a human person who had the virus.

[00:06:38] Speaker 11:
We carried the virus.

[00:06:39] Speaker 11:
We shedded the virus.

[00:06:40] Speaker 11:
We contaminated other people with the virus.

[00:06:43] Speaker 11:
There's nothing in the regulation of the statutes that say that you have to work in a lab.

[00:06:47] Speaker 11:
And in fact, that's the scientist's rule that the government advances.

[00:06:50] Speaker 02:
What about the examples in the environmental differential pay category for microorganisms?

[00:06:54] Speaker 02:
It's pretty clear that they're talking about containers holding these microorganisms

[00:07:01] Speaker 02:
for high degree hazards.

[00:07:02] Speaker 02:
And then the low degree hazards is contrasted by saying, well, to be able to qualify for a low degree hazard, you don't have to have direct contact with those primary containers.

[00:07:15] Speaker 02:
So those examples, plus the other examples in the now retired personnel manual explaining what virulent biologicals are for the hazard duty pay,

[00:07:26] Speaker 02:
Shouldn't we take something from these examples?

[00:07:29] Speaker 02:
Maybe they're not limiting, of course, but they're thematically underscoring, I think, the point Judge DeLorey was making.

[00:07:36] Speaker 11:
Your Honor, as you point out, the examples, the only place examples exist are in the high-degree environmental differential pay regulation.

[00:07:47] Speaker 11:
You're not supposed to leapfrog over the statute and the regulations definitions themselves to go to the examples first.

[00:07:54] Speaker 11:
But to the extent that you go to the examples first, we believe that humans are primary containers of the virulent biological COVID-19.

[00:08:03] Speaker 11:
And the only non-exhaustive two examples that you have in that regulation, we fit within it.

[00:08:12] Speaker 11:
Because it talks about individuals being in direct contact with primary containers of organisms

[00:08:17] Speaker 11:
Pathogenic for man such as culture flask culture test tubes hypodermic syringes and similar instruments and biopsy and Autopsy material.

[00:08:27] Speaker 11:
Well, where do you think that comes from?

[00:08:28] Speaker 11:
I mean an autopsy I guess is a dead person but a biopsy material comes from a human So I think you can make an argument.

[00:08:36] Speaker 02:
I suppose that was the government's point in their red brief when they said sure any any officer correctional officer or other person in a

[00:08:45] Speaker 02:
correctional facility that's getting biopsies from people with these microorganisms, they would probably qualify for pay, but not if you're just doing the regular assigned duty where you're exposed in that environment to all sorts of communicable diseases.

[00:09:07] Speaker 11:
And Your Honor, I would submit that that example, the lone example that they gave in their brief,

[00:09:12] Speaker 11:
really indicates exactly why we should win and why we should have our day in court because the example they gave was that

[00:09:24] Speaker 11:
You know, they tried to come up with one.

[00:09:26] Speaker 11:
And the only example they could come up with was someone who is a federal employee.

[00:09:31] Speaker 11:
If the federal employee were assigned the duty of collecting biological samples from prison inmates to test for communicable disease that meets the definition of biological, that person might satisfy the requirement of HDP.

[00:09:44] Speaker 07:
What?

[00:09:45] Speaker 07:
Who?

[00:09:45] Speaker 07:
Didn't OPM already answer that question in the guidance that they put out?

[00:09:51] Speaker 07:
And I'm looking at them.

[00:09:53] Speaker 07:
the guidance on its U.S.

[00:09:55] Speaker 07:
Office of Personnel Management, Pressures and Managers on Human Resources Flexibilities and Authority for Coronavirus 2019, COVID-19.

[00:10:05] Speaker 07:
This was attached and incorporated by reference to appellate's complaint.

[00:10:09] Speaker 07:
And under page 11G, the question is, hazardous pay related to exposure to COVID-19.

[00:10:16] Speaker 07:
The question is, and this is a guidance, may an employee receive hazard pay differentials or alarming differentials?

[00:10:25] Speaker 07:
pay if exposed to COVID-19 through the performance of assigned duties, that question is more direct than the other examples that are presented in the retired guidance.

[00:10:37] Speaker 07:
And then it goes on and actually answers that question in the affirmative, especially with its view that what happens when materials of micro-organic nature are introduced into the human body.

[00:10:50] Speaker 07:
Does this guidance apply?

[00:10:56] Speaker 07:
And if so, how?

[00:10:57] Speaker 11:
Your Honor, absolutely it does.

[00:10:59] Speaker 11:
OPM went through the trouble of issuing this memorandum at the beginning of the pandemic.

[00:11:06] Speaker 11:
And in the memorandum, it talks about it actually defines the biological as a severe acute respiratory syndrome.

[00:11:16] Speaker 11:
And it's a quarantineable, communicable disease.

[00:11:19] Speaker 11:
It gives guidance on people taking leave, and it gives guidance on paying employees, federal employees, hazardous student pay.

[00:11:25] Speaker 07:
The disease is communicable from, what, a petri dish?

[00:11:29] Speaker 11:
Your Honor.

[00:11:30] Speaker 11:
It's communicable from a person to a person.

[00:11:33] Speaker 11:
That's how we spread it.

[00:11:34] Speaker 11:
And OPM knew enough to issue this guidance to the entire federal workforce.

[00:11:39] Speaker 11:
It wasn't just issued to the scientists and the people in the labs who were working with test tubes of perhaps virulent biologicals.

[00:11:45] Speaker 05:
It went to the entire workforce.

[00:11:47] Speaker 05:
Council, can I just go back to the chief's question?

[00:11:52] Speaker 05:
In any given office throughout the government,

[00:11:58] Speaker 05:
At one time, there were people who were in close proximity to sources of the virus, namely other people.

[00:12:07] Speaker 05:
How is it that you can say that a suit by basically any such people and assume now that the risk remained substantial during a period

[00:12:20] Speaker 05:
maybe pre-vaccine, maybe pre-mask, maybe even after vaccine.

[00:12:26] Speaker 05:
You're trying to, I think, give comfort that those suits would obviously go away, and I'm not seeing why.

[00:12:32] Speaker 11:
Okay.

[00:12:32] Speaker 11:
Your Honor, the reason those suits would go away is because you have to look to the job duties.

[00:12:37] Speaker 11:
You have to look to what the employee is supposed to do.

[00:12:41] Speaker 11:
They have to be in the office.

[00:12:42] Speaker 05:
There are other disease vectors walking around.

[00:12:45] Speaker 11:
Their job is not to be proximate with the other office workers.

[00:12:49] Speaker 11:
Their job is not to be.

[00:12:51] Speaker 11:
If they have to be in the office, that's part of their job.

[00:12:55] Speaker 11:
But their job is different from what the prison guards were doing.

[00:13:00] Speaker 11:
What they have to do is hands-on work.

[00:13:02] Speaker 11:
Their whole job is being run.

[00:13:03] Speaker 10:
You didn't lodge any of that in your complaint, counsel.

[00:13:06] Speaker 10:
None of that's in the complaint.

[00:13:07] Speaker 10:
You want to survive a motion to dismiss your complaint, but where is

[00:13:11] Speaker 10:
all of this evidence that differentiates your job or, as you suggested in response to my question, ventilation or other things.

[00:13:19] Speaker 10:
Where does that appear grounded in your complaint?

[00:13:21] Speaker 11:
Your Honor, we say in our complaint they had to work with or in close proximity to infected individual surfaces, et cetera.

[00:13:28] Speaker 10:
But that's true, like Judge Toronto said, for people who came back here, too.

[00:13:31] Speaker 11:
And what we said in our briefs to you in response to our questions is you want us to

[00:13:37] Speaker 11:
redraft our complaint.

[00:13:38] Speaker 05:
What would you put in the amended complaint?

[00:13:41] Speaker 05:
Forget about the technical fleeting.

[00:13:42] Speaker 05:
I want to understand what the substantive distinction is if you're saying that a human source, a living human source, can be the source of danger.

[00:13:58] Speaker 05:
What are the standards that take

[00:14:02] Speaker 05:
as I think you're trying to suggest, even at the Rule 12 stage, the normal federal office worker out of that.

[00:14:12] Speaker 05:
Is there already?

[00:14:13] Speaker 11:
The types of things that we put into the complaints that we did amend, and we point this out on Docket 41 at page 44, that plaintiffs are charged with the principal and primary duty of maintaining the safety of the institution in significant part by coming into close physical proximity with inmates and other correctional officers,

[00:14:31] Speaker 11:
The posts that they've been assigned to within the institution involve prolonged close quarter exposure to coworkers and inmates, often indoor and in closed settings.

[00:14:42] Speaker 05:
What you said so far sounds like a very large part of the federal workforce.

[00:14:48] Speaker 11:
These are office jobs.

[00:14:49] Speaker 11:
Most of the federal workforce went home during the height of the pandemic.

[00:14:53] Speaker 11:
And to the extent they came back, they did have safety measures.

[00:14:56] Speaker 11:
You could be in an office.

[00:14:57] Speaker 11:
The last time I had an argument here, there was plastic everywhere.

[00:15:00] Speaker 03:
So is it your view that anybody that didn't go home and by nature of their work would come into contact with other people gets hazardous duty pay?

[00:15:09] Speaker 11:
Absolutely not.

[00:15:10] Speaker 11:
Why not?

[00:15:10] Speaker 11:
Because your job has to be one.

[00:15:14] Speaker 03:
So what if you have a maintenance team that goes around maintaining buildings or roads or other types of equipment and they work in teams of two or three or five and they have to be there physically present.

[00:15:26] Speaker 03:
They're there together.

[00:15:27] Speaker 03:
They're traveling together.

[00:15:28] Speaker 03:
Does your definition exclude those people?

[00:15:31] Speaker 11:
It does actually because to the extent it has to be part of your job and the plaintiffs have to show that they worked with somebody who had an infection.

[00:15:41] Speaker 11:
That's number one.

[00:15:42] Speaker 11:
So I don't know that the rules were.

[00:15:44] Speaker 03:
I'm sorry.

[00:15:45] Speaker 03:
That doesn't seem at all responsive to my question when I said these are people that work maintenance jobs, that work in teams, and travel together.

[00:15:53] Speaker 03:
Did I have to assume that there was a great risk for infection in the early stages when these people didn't have the vaccine?

[00:16:01] Speaker 03:
I mean, if you're working routinely with people that are out in the world and not isolating, there was a great risk of exposure.

[00:16:10] Speaker 11:
There was a great risk of exposure, Judge.

[00:16:12] Speaker 11:
But we would have to, as plaintiffs, be able to prove that we came into contact and a part of our job.

[00:16:18] Speaker 03:
But if you could prove that you came into contact, those people would be covered, right?

[00:16:22] Speaker 11:
No.

[00:16:22] Speaker 11:
Contact with an infected individual or an infectious individual.

[00:16:25] Speaker 11:
Just by virtue of just working next to Reed over here doesn't give me the hazardous duty pay.

[00:16:30] Speaker 11:
I have to be able to prove that I came into contact.

[00:16:33] Speaker 03:
But any federal worker that was working

[00:16:36] Speaker 03:
in person with other people that was exposed to one person that had COVID, gets hazardous duty pay?

[00:16:43] Speaker 11:
Your Honor, as long as their job has to be one where they have to come into physical contact, just because they're working.

[00:16:50] Speaker 13:
I guess your point is that most federal workers can socially distance from the people they're working with, whereas your allegations is that the guards couldn't.

[00:16:59] Speaker 13:
They had to get in contact with these people to restrain them, to handcuff them, to push them around.

[00:17:06] Speaker 13:
different job that's exactly right your honor but the problem that I see okay is that you may have a good argument that these people should be covered but isn't the proper remedy to go to OPM and say we have a new virus a new situation here and some of these workers are particularly likely to get it because of the nature of their jobs and

[00:17:30] Speaker 13:
Why don't you amend the regulations to create a new category to cover them?

[00:17:34] Speaker 13:
Why isn't that the appropriate approach?

[00:17:39] Speaker 11:
already has a regulation on the books.

[00:17:41] Speaker 11:
And that regulation applies to the workers that I'm talking about.

[00:17:44] Speaker 13:
Well, you can see that there's a lot of skepticism as to whether that regulation could properly be read to cover their situation.

[00:17:49] Speaker 13:
But what's the answer to my question?

[00:17:51] Speaker 13:
Couldn't you go to OPM and say the regulation needs to be expanded to cover this new situation?

[00:17:58] Speaker 11:
I suppose we could, but we don't have any authority to do so.

[00:18:01] Speaker 11:
The remedy is already on the statutes, and it's already in the regulations themselves.

[00:18:05] Speaker 11:
And this court has the tools.

[00:18:08] Speaker 05:
I'm sorry.

[00:18:08] Speaker 05:
Anybody can ask an agency to change regulations, right?

[00:18:13] Speaker 11:
I would imagine, but I don't think we need to do that here.

[00:18:16] Speaker 05:
And if I remember right, at least in the panel brief on page two, the red brief, that is the government's brief, the government acknowledged that OPM could, in fact, amend the regulation to address COVID-19.

[00:18:28] Speaker 05:
Your Honor, it could address amended, but as Judge Raina- I'm sorry, and I would say I can't right now think of any reason it couldn't do so retroactively because the only one burdened would be the government.

[00:18:39] Speaker 11:
Your Honor, as Judge Raina pointed out, even OPM thought that these workers, workers out there who are working with COVID-19, inmates infected with COVID-19, no difference between an inmate infected with COVID-19 and a vial that has COVID-19 in it.

[00:18:55] Speaker 11:
There's no difference.

[00:18:56] Speaker 11:
In fact, it's more dangerous for the correctional officers to work with these infected inmates than it is for somebody working in a sterile lab with a virulent biological.

[00:19:06] Speaker 11:
The beaker has no legs.

[00:19:08] Speaker 11:
The beaker cannot walk across the room and breathe on you.

[00:19:11] Speaker 07:
Okay, so and just to be clear, let's go back to this, to the guidance at OPM.

[00:19:17] Speaker 07:
We're talking about OPM regulations.

[00:19:19] Speaker 07:
Here's a guidance from OPM itself, the agency, and it answers this question you've been asked, and it says, a employee may not receive hazardous pay differential under the virulent biological category if an exposure to qualifying virus was not triggered by the performance of assigned duties.

[00:19:37] Speaker 07:
Now, here's a scenario.

[00:19:39] Speaker 07:
You got two

[00:19:40] Speaker 07:
guards that work at a correctional facility.

[00:19:44] Speaker 07:
One guard shows up to work, punches his card in, goes up to a watch tower and sits there and monitors what's going on down at the yard and everything.

[00:19:54] Speaker 07:
The other correctional officer goes into the building and his job is to strip search prisoners after they come back in from their recreational time to look for weapons or drugs or paraphernalia or

[00:20:08] Speaker 07:
So your argument is that what you're saying is that the latter correctional guard may be entitled to hazardous duty pay, while the former would have to prove that sitting up on the watchtower, they're entitled to hazardous pay.

[00:20:27] Speaker 11:
Your Honor, I think that's right.

[00:20:29] Speaker 11:
I think the guard in the watchtower are the clerks that came back to Chief Judge Moore's chambers.

[00:20:34] Speaker 11:
They're going to be a lot more pressed to prove that they came into

[00:20:38] Speaker 11:
close proximity with the virulent biological than the correctional officers who's everyday.

[00:20:43] Speaker 07:
So even as a judge, if I wanted hazardous pay and I said, well, I worked with other judges and we were faced with the public, I would still have to show that the performance of my duties, my job duties, put me in this close proximity and that the qualifying virus was triggered by the performance of those assigned duties.

[00:21:06] Speaker 11:
That's exactly right, Your Honor.

[00:21:07] Speaker 11:
And we believe that we have stated a claim that the correctional officers have those exact job duties that would put them in close proximity to the virulent biological and the microorganism.

[00:21:18] Speaker 07:
Because of the nature of the work.

[00:21:19] Speaker 07:
And this guidance was attached to your complaint.

[00:21:21] Speaker 07:
Sorry?

[00:21:22] Speaker 07:
This guidance was made part of your complaint.

[00:21:25] Speaker 01:
I believe it was.

[00:21:26] Speaker 01:
council I just wanted to ask two questions one was you talked about temporal limitations but by referring to temporal limitations other than like when the race started and when it ended are you saying that for each individual

[00:21:40] Speaker 01:
member of the plaintiffs group.

[00:21:43] Speaker 01:
Each one of them has to identify on which days they were exposed to somebody who tested positive for COVID.

[00:21:50] Speaker 01:
Yes.

[00:21:50] Speaker 01:
OK.

[00:21:51] Speaker 01:
And then second question is, was the Bureau of Prisons asked for hazard pay?

[00:21:57] Speaker 01:
Did anybody go to the Bureau of Prisons, like under Section 5 CFR 550.904, and ask for hazard pay?

[00:22:06] Speaker 11:
Not that I know of, Your Honor.

[00:22:07] Speaker 11:
But these correctional officers have come into this court asking to be paid this pay that was intended for them by Congress and by these OPM regulations as written.

[00:22:17] Speaker 11:
And to further answer the question about how do you limit this, you have the tools at your disposal to limit it.

[00:22:23] Speaker 11:
The United States Supreme Court, as the amicus AFL-CIO pointed out in National Federation of Independent Businesses versus DOL, the U.S.

[00:22:32] Speaker 11:
Supreme Court recognizes that workplaces are not all the same and that OSHA,

[00:22:37] Speaker 11:
could require vaccines at certain workplaces, but not nationwide.

[00:22:41] Speaker 11:
Sorry?

[00:22:44] Speaker 00:
We're discussing actually a good deal of speculative generalizations as to what might or might not happen.

[00:22:52] Speaker 00:
But we also have several years of experience with this pandemic.

[00:22:57] Speaker 00:
So there must be a powerful accumulation of facts

[00:23:03] Speaker 00:
How many correctional officers in which jobs have been infected and how many have not?

[00:23:12] Speaker 00:
And I haven't seen any ways in anything that's been submitted, any comparison, any collection of data, anything that could support your saying that this is a different kind of job.

[00:23:28] Speaker 00:
Where are the facts?

[00:23:30] Speaker 00:
How do we know this if, in fact, the evidence shows that correctional officers are three times not only more likely, but have three times as much infection?

[00:23:42] Speaker 00:
You'd have, I think, a different argument than the speculation that you're presenting to us.

[00:23:48] Speaker 11:
Your Honor, it's a complaint.

[00:23:50] Speaker 11:
When we get into discovery, if you let us out of the gate, we will have those facts.

[00:23:55] Speaker 11:
We will show you that, as you point out, the correctional officers were three to five times more likely to get COVID-19.

[00:24:02] Speaker 00:
But you haven't even alleged that in your complaint, that there are several times, whatever it is, that you're going to prove.

[00:24:10] Speaker 00:
You're just telling us these people are different.

[00:24:12] Speaker 00:
We are telling you.

[00:24:13] Speaker 00:
And you see our concern.

[00:24:16] Speaker 11:
Your Honor.

[00:24:17] Speaker 11:
Your Honor.

[00:24:19] Speaker 11:
It's rule eight, a short, plain statement of the facts.

[00:24:22] Speaker 11:
We alleged everything that we had to allege in the complaint.

[00:24:25] Speaker 11:
We had to allege that they worked with in close proximity to the virulent biological, that it causes serious disease if you get it, and that there were no protective devices to save you, and that it wasn't taken into account when they classified the physician.

[00:24:39] Speaker 11:
We put all of that in the complaint.

[00:24:42] Speaker 13:
This discussion.

[00:24:43] Speaker 13:
proves the difficult line drawing that's involved here.

[00:24:47] Speaker 13:
And I don't hear an adequate response as to why the remedy isn't to go to OPM and say, this job is different.

[00:24:57] Speaker 13:
This job is sufficient to qualify them for hazard pay, and you should amend your regulation.

[00:25:03] Speaker 13:
Isn't OPM in a much better position to make those judgments than we are?

[00:25:09] Speaker 11:
I would disagree, Your Honor.

[00:25:11] Speaker 11:
I think that you are in a position to make the decision about whether we have stated a claim for relief under the regulations as written.

[00:25:19] Speaker 11:
We can't make OPM do anything.

[00:25:21] Speaker 11:
But we have come into court.

[00:25:23] Speaker 11:
We have alleged all the elements of a hazardous duty pay claim and an environmental differential claim.

[00:25:28] Speaker 11:
If we could put on our proof, we will show you, Your Honor, that the workers were three to five times more likely to get this disease.

[00:25:35] Speaker 11:
We will show you that at FPCI Danbury, it was an incubator of the coronavirus.

[00:25:40] Speaker 11:
We will show you, based on the COVID tracker, that in December of 2020, 97 inmates had active cases of COVID-19 inside that prison.

[00:25:49] Speaker 02:
The government, in their brief, they pointed to the jungle duty category as an illustration of how OPM knows how to write a category that's directed to exposure to a particular disease and what happened that someone should get extra pay when they're working in an environment that has something dangerous floating in the air.

[00:26:13] Speaker 02:
And that's unlike the vernal and biological category, which doesn't have that kind of language.

[00:26:18] Speaker 02:
I saw another category called the asbestos category, and that category likewise talks very specifically about exposure to airborne concentrations of asbestos fibers in excess of the permissible exposure limits set out by an OSHA regulation.

[00:26:36] Speaker 02:
So I'm wondering what should we take away from this?

[00:26:40] Speaker 02:
Is this another contrasting example like the jungle duty example?

[00:26:44] Speaker 02:
Because here again OPM has shown that it's concerned when you're working in a particular environment where there's some kind of

[00:26:52] Speaker 02:
hazardous matter floating in the air, and they provided a category of extra pay for that.

[00:26:58] Speaker 02:
And they also provided something administrable, which is a certain exposure level that is set out by OSHA regulations.

[00:27:05] Speaker 02:
And I was wondering if you could speak to how we should think about this asbestos category as well as the jungle duty category.

[00:27:12] Speaker 11:
Well, Your Honor, the asbestos category came about through an amendment, I think, of the statute in 2003.

[00:27:19] Speaker 11:
I don't, again, believe that there needs to be any kind of further definition of exposure to virulent biologicals.

[00:27:26] Speaker 11:
I mean, it's in there already.

[00:27:28] Speaker 11:
And we have stated a claim for it.

[00:27:30] Speaker 11:
Now, with respect to the jungle duty, I think the jungle duty regulation actually supports us.

[00:27:34] Speaker 11:
The workers who are in the jungle are entitled to get hazardous duty pay if the roads are unsafe and if there's a potential they could be bitten by a snake.

[00:27:44] Speaker 11:
I mean, that's essentially what it says.

[00:27:46] Speaker 05:
The workers are not in the jungle to separate.

[00:27:49] Speaker 05:
You've got the snakes and the panthers, right?

[00:27:51] Speaker 05:
But as a separate requirement or alternative, not requirement, is just exposure to diseases.

[00:27:59] Speaker 11:
That is part of it.

[00:28:00] Speaker 11:
That's one of them, exposure to diseases, bad roads, and the snakes.

[00:28:04] Speaker 11:
And the employees are not in that jungle in order to study the vegetation.

[00:28:12] Speaker 11:
or to study the wildlife in the jungle.

[00:28:14] Speaker 11:
They're probably in there looking for drugs or the cartel or whatever it is in the jungle.

[00:28:18] Speaker 11:
And they don't have to get bitten by the snake in order to get hazardous duty pay.

[00:28:22] Speaker 11:
We don't have to get the disease.

[00:28:23] Speaker 11:
We don't have to fall off the roof.

[00:28:25] Speaker 11:
What we need in this situation, I think you asked one of these questions about what's the accident here.

[00:28:29] Speaker 11:
The accident is

[00:28:32] Speaker 11:
The exposure, the risk of exposure to this deadly airborne.

[00:28:37] Speaker 10:
Counsel, do you want to reserve any time for rebuttal?

[00:28:39] Speaker 10:
Oh, I thought I did, yes.

[00:28:40] Speaker 10:
OK.

[00:28:40] Speaker 10:
No, this is all your time.

[00:28:41] Speaker 10:
But one quick question before you do, and I will restore your rebuttal time.

[00:28:45] Speaker 10:
Twice in response to Judge Raina, who asked you if the OPM memo and guidance was, in fact, attached to your complaint, you said, yes, I think so.

[00:28:55] Speaker 10:
It's not actually, though, correct?

[00:28:56] Speaker 10:
You reference it at page 18, like you also reference additional guidance.

[00:29:00] Speaker 10:
You reference the WHO guidelines.

[00:29:03] Speaker 10:
But it wasn't actually attached to your complaint, just for physical clarification purposes.

[00:29:07] Speaker 10:
Thank you, Your Honor.

[00:29:08] Speaker 11:
Is that correct?

[00:29:09] Speaker 11:
I believe that is correct.

[00:29:10] Speaker 11:
I don't think we attached anything to the complaint.

[00:29:12] Speaker 11:
There was nothing attached to the complaint.

[00:29:13] Speaker 11:
Right.

[00:29:14] Speaker 11:
And we don't usually attach things to our complaint, because we usually get to prove our evidence to discovery.

[00:29:18] Speaker 11:
That is correct.

[00:29:20] Speaker 11:
OK.

[00:29:21] Speaker 11:
Thank you, counsel.

[00:29:23] Speaker 06:
Good morning and may it please the court.

[00:29:26] Speaker 06:
Congress passed the hazardous duty and environmental differential pay statutes in order to fill a gap and compensate general schedule and wage system employees who had been working side by side with military and public health service personnel who were themselves eligible to receive additional hazard related compensation.

[00:29:44] Speaker 02:
I understand the government's position about the meaning of these regulations, but does the government agree that

[00:29:52] Speaker 02:
Under the statute for unusual hazards, OPM has the authority and discretion, if it wanted to, to add yet another category to both of these schedules that would encompass federal employees working in an environment where there is this very unusual hazard floating in the air.

[00:30:17] Speaker 06:
Yes, I think the statute directly or expressly directs OPM to draft an appendix that lists the various duties that would be eligible for hazardous duty pay and whether OPM would issue regulations that would affect such an enormous number of- I'm not saying they must, but I'm just asking, do you agree, does the government agree that they could under the statute, that they have the authority under the statute to write a new category?

[00:30:47] Speaker 06:
I think that's probably right, Your Honor.

[00:30:49] Speaker 06:
My only concern is that whether we start to encroach on the major questions doctrine about whether such an enormous sort of unfunded expenditure would have been contemplated by the Congress, but by the express terms of the statute.

[00:30:59] Speaker 13:
You're certainly trying to carry the major questions doctrine to an extreme level.

[00:31:04] Speaker 06:
That's quite odd.

[00:31:06] Speaker 06:
To be clear, I think the express provisions of the statute allow OPM to define what constitutes an unusual hazard.

[00:31:13] Speaker 06:
And so if they wanted, if OPM wanted to clarify that virulent biologicals includes, for instance, exposure to human beings who are incidentally infected with a communicable disease, they may be able to do that.

[00:31:26] Speaker 00:
I assume it's correct that OPM has full

[00:31:31] Speaker 00:
information, statistical and also specific, as to which government employees have been infected, in which job positions, and which have not?

[00:31:42] Speaker 06:
I don't think that's right, Your Honor.

[00:31:44] Speaker 00:
You don't think so?

[00:31:45] Speaker 06:
No, Your Honor.

[00:31:45] Speaker 06:
I think that agencies are certainly encouraged to track

[00:31:50] Speaker 06:
SARS-CoV-2 infections, to the extent each individual institution or agency did so.

[00:31:55] Speaker 06:
It's not on the record, and I'm not aware of what the details are of that data.

[00:32:01] Speaker 13:
Well, they can certainly gather it, right?

[00:32:03] Speaker 06:
They can gather some data.

[00:32:04] Speaker 06:
I don't want to represent.

[00:32:06] Speaker 06:
I don't know exactly to what extent, whether or not Bureau of Prisons knows how many

[00:32:12] Speaker 06:
inmates have ever been infected in the last two or three years.

[00:32:15] Speaker 06:
They may know that.

[00:32:16] Speaker 06:
Whether they know the exact dates or where those inmates were at a particular time and date, that I don't know.

[00:32:22] Speaker 13:
Well, you would think normally what you do is issue a notice of opposed rulemaking and say,

[00:32:26] Speaker 13:
We're proposing to add additional categories here.

[00:32:29] Speaker 13:
And then people would comment.

[00:32:31] Speaker 13:
They'd receive data.

[00:32:32] Speaker 13:
They'd make a judgment.

[00:32:33] Speaker 13:
That's the way it would usually be done.

[00:32:35] Speaker 06:
I agree, Your Honor.

[00:32:35] Speaker 06:
And to be clear, I'm not denying that the statute permits OPM to amend the regulations.

[00:32:41] Speaker 06:
It does.

[00:32:41] Speaker 06:
Whether or not it would is just a different question.

[00:32:44] Speaker 06:
That's all.

[00:32:45] Speaker 05:
Can I ask you this question?

[00:32:47] Speaker 05:
So I want to focus very specifically, I think, on Judge Dyck's

[00:32:56] Speaker 05:
reflected in some of the other questions, too, that your statutory argument, to the extent you were making one, I gather you're not really making one now, that the unusual standard of the two statutes would allow OPM to do something.

[00:33:17] Speaker 05:
And suppose I thought that the current

[00:33:21] Speaker 05:
regulatory standard and particularly the in proximity to language was a little difficult for you, but that structurally the availability of relief from OPM by way of amendment was very, very important.

[00:33:42] Speaker 05:
What would be the doctrinal hook

[00:33:45] Speaker 05:
under which I would give decisive force in deciding how to interpret the in proximity to language based on the ability to go to OPM and get an agency definition, perhaps even of retroactive effect.

[00:34:11] Speaker 05:
for airborne viruses from human vectors.

[00:34:16] Speaker 06:
So Your Honor, are you suggesting in your hypothetical, I just want to clarify, that the plaintiffs would be unable to state a claim under the regulation as currently written?

[00:34:26] Speaker 05:
If I'm trying to decide how to answer that question, and I'm thinking in proximity to favors them,

[00:34:33] Speaker 05:
doesn't favor you.

[00:34:34] Speaker 05:
It's a bit of a strain to make it favor you.

[00:34:37] Speaker 05:
But I might be persuaded to favor you in that interpretation if I was assured, if I thought it clear, that OPM could in fact do something.

[00:34:51] Speaker 05:
What would be the doctrinal argument for building that into

[00:34:57] Speaker 05:
as a decisive consideration the interpretation of this phrase, which I think on its face is actually something of a challenge for you.

[00:35:05] Speaker 06:
And I'd like to address that latter point in a moment, Your Honor.

[00:35:08] Speaker 06:
But frankly, I think that it's hard to conclude that because OPM is able to amend the regulations that a plaintiff would be unable to state a claim under regulations as written.

[00:35:22] Speaker 06:
So the answer to your question may be that there is not a specific doctrinal hook, as you described it, that would permit

[00:35:29] Speaker 06:
or that the court could point to and say, because OPM is allowed to amend regulations, and there are problems with the enclosed proximity language, that the plaintiffs either have to file a complaint or fail to state a claim based on the complaint as written.

[00:35:44] Speaker 05:
OK.

[00:35:45] Speaker 05:
And I'm actually interested in one question, which I guess is related in my mind.

[00:35:51] Speaker 05:
Why shouldn't we give our deference to the OPM March 7, 2020 pronouncements?

[00:35:58] Speaker 06:
Well, I don't think that it's not a rule to the extent that there was no notice and comment with regard to the memo that was drafted in March.

[00:36:09] Speaker 06:
I think more importantly, when you take a step back, certainly the March 7th memo is one.

[00:36:14] Speaker 05:
Is your current position contrary to or consistent with that memo?

[00:36:17] Speaker 06:
It's consistent with that memo.

[00:36:22] Speaker 06:
The memo, as stated, asks the question, as Judge Arena pointed out, main employee who has been exposed incidentally to COVID-19, i.e., in a manner not directly associated with the performance of assigned duties, receive a hazard pay differential for exposure to variant biologicals.

[00:36:38] Speaker 06:
The memo answers, no, that's the first word.

[00:36:41] Speaker 06:
Separately, in the fourth part of that Q&A, it says, can employers receive hazardous duty pay or environmental differential pay for potential exposure to COVID-19?

[00:36:51] Speaker 06:
OPM similarly replied, no, which is a direct contravention to the plaintiff's theory in this case, which is that mere potential exposure would permit the plaintiffs in this case to recover under the HTTP statutes.

[00:37:03] Speaker 06:
But more importantly, if the court were to look at,

[00:37:07] Speaker 06:
OPM guidance.

[00:37:08] Speaker 06:
This certainly is one thing that can color the decisions, how the regulations should be interpreted.

[00:37:14] Speaker 06:
But there's an even more important and relevant guidance from OPM, and that is the Federal Personnel Manual, which was issued contemporaneously with these very regulations that are issued here.

[00:37:26] Speaker 06:
So in 1969, when the regulations were issued, OPM, at the time the Civil Service Commission,

[00:37:34] Speaker 06:
Federal Personnel Manual, which gave color to what it means to work with or in close proximity to virulent biologists.

[00:37:42] Speaker 06:
And what OPM said at that time was examples like operating or maintaining equipment in biological experimentation and production, cleaning and sterilization of vessels and equipment contaminated with virulent microorganisms.

[00:37:54] Speaker 06:
The type of duty that is

[00:37:57] Speaker 06:
is targeted toward the specific virulent biological, not merely working in an office or somewhere close by human beings who are incidentally or potentially infected with a virulent biological.

[00:38:10] Speaker 09:
Opposing counsel seems to contend you're saying there's like a scientist rule.

[00:38:14] Speaker 09:
Who else do you think gets relief besides scientists or something like that?

[00:38:18] Speaker 06:
There's two things to that, Judge Cunningham.

[00:38:19] Speaker 06:
First of all, it's not a scientist role.

[00:38:21] Speaker 06:
It's not restricted to only scientists who work in laboratory.

[00:38:24] Speaker 06:
We gave one example in our brief specific to potentially the Federal Correctional Institutions situation.

[00:38:32] Speaker 06:
But I can imagine a situation where there's a biosafety level three or four, which is a very high level dangerous

[00:38:39] Speaker 06:
lab that a centrifuge may be broken.

[00:38:42] Speaker 06:
And a centrifuge technician needs to be called in into this dangerous laboratory just to repair the centrifuge.

[00:38:47] Speaker 06:
They're not scientists.

[00:38:48] Speaker 06:
They're not working with petri dishes or flasks.

[00:38:50] Speaker 06:
But they're directed, assigned specifically to go into this dangerous laboratory and perform his or her work.

[00:38:57] Speaker 05:
So if a custodian's job is just to mop floors in a lab with dangerous stuff around, despite the dangerous stuff, he's not covered in your view?

[00:39:09] Speaker 06:
I think it depends on what the job duties specifically are.

[00:39:13] Speaker 06:
Wash the floors.

[00:39:13] Speaker 06:
Certainly.

[00:39:14] Speaker 06:
But if an agency, for Dietrich, hires a janitor to specifically mop the floors in these dangerous BSL-3 and floor laboratories, then maybe they would be entitled to it.

[00:39:27] Speaker 06:
And also, alternatively, if there was

[00:39:30] Speaker 06:
a janitor who?

[00:39:32] Speaker 05:
Maybe, maybe.

[00:39:33] Speaker 05:
I think I'm going to try to get something beyond a maybe.

[00:39:38] Speaker 05:
Because you're suggesting a line whose meaning is not clear to me, and yet it is

[00:39:48] Speaker 05:
the central submission you make about how to interpret this phrase.

[00:39:53] Speaker 05:
And the fuzzier and more uncertain your line, the harder it is to attribute it to words that don't seem to embody it.

[00:40:01] Speaker 06:
Sure.

[00:40:02] Speaker 06:
And to be clear, and this is why we note in our brief repeatedly that the touchstone for the test is whether the focus of the assigned duties is actually the virulent biological microorganism.

[00:40:12] Speaker 06:
So in the case of the plaintiffs here,

[00:40:15] Speaker 06:
The assigned duty is, as they describe, escorting prisoners, keeping the prison safe, et cetera.

[00:40:21] Speaker 06:
It's not working with the varying biologicals.

[00:40:25] Speaker 06:
A janitor who had never typically worked in a laboratory was working in some other office space and was told, look, there's a spill or someone spilled coke or something, not a virulent biological, all over this very dangerous lab floor.

[00:40:39] Speaker 06:
We want you to go in specifically to that lab.

[00:40:41] Speaker 05:
But I think what you just said is it makes a difference whether it's intermittent.

[00:40:45] Speaker 05:
And we know that's not in the statute or the regulation.

[00:40:47] Speaker 06:
No, not intermittent.

[00:40:48] Speaker 05:
It's a question of whether the sign, whether the virulent.

[00:40:50] Speaker 05:
It's the wash floors in this building.

[00:40:54] Speaker 05:
portions of the rooms containing those floors are going to create a danger of exposure.

[00:41:01] Speaker 06:
If the employer directs the janitor in your situation to specifically clean the floors in the location that they know that the virulent biological microorganism.

[00:41:15] Speaker 05:
Why does knowledge have anything to do with it?

[00:41:17] Speaker 06:
Because it becomes the focus of the assignment.

[00:41:21] Speaker 05:
I'm sorry, that person is working in close proximity to a virulent biological.

[00:41:27] Speaker 05:
It might be in a petri dish.

[00:41:29] Speaker 05:
Let's assume it's in a petri dish.

[00:41:32] Speaker 05:
not there for the purpose of working with the beetroot dish, but he sure is in close proximity to it.

[00:41:42] Speaker 05:
How does the language of the two regulations not apply to him?

[00:41:46] Speaker 06:
So I think it may, if the

[00:41:50] Speaker 06:
if the employee was directed to work specifically with the biosafety level four or three microorganisms.

[00:42:00] Speaker 06:
So it's not simply a question of was I mopping the floor and there was something in the air.

[00:42:06] Speaker 06:
There has to be something more than that.

[00:42:07] Speaker 06:
And I'll explain why by bringing you back to the regulations here.

[00:42:10] Speaker 07:
Wouldn't that have to be decided on a case by case basis?

[00:42:15] Speaker 07:
Not in this case, Your Honor.

[00:42:16] Speaker 07:
By the agencies?

[00:42:17] Speaker 06:
No, Your Honor.

[00:42:19] Speaker 06:
In this case, the plaintiff failed to state a claim based on the language and the regulation.

[00:42:23] Speaker 07:
And so the... I'm going back to this OPM guidance.

[00:42:28] Speaker 07:
I rechecked.

[00:42:29] Speaker 07:
It wasn't attached, but it's...

[00:42:30] Speaker 07:
It's cited, and it's cited in the complaint.

[00:42:35] Speaker 07:
And it does say in that same paragraph I was looking at before, it says, OPM does not determine when hazard pay differences must be paid.

[00:42:43] Speaker 07:
Agencies have the responsibility and are in the best position to determine when the duties performed by employees meet the regulatory requirements.

[00:42:51] Speaker 07:
Thus, agency managers in consultation with occupational safety and health experts

[00:42:56] Speaker 07:
must determine whether an employee is entitled to hazard pay on a case-by-case basis.

[00:43:02] Speaker 07:
I would imagine that's because there's so many different factual scenarios out there in the field of federal employment.

[00:43:10] Speaker 07:
So in that connection, let me ask you, did any federal agencies, other than the, forget about the Bureau of Prisons, any federal agencies pay HDP and EDP pay with respect to COVID?

[00:43:25] Speaker 06:
I'm aware of

[00:43:26] Speaker 06:
the Indian Health Service providing for HDP for anyone who was physically working at a health station, clinic, or hospital for a brief amount of time during the pandemic?

[00:43:38] Speaker 06:
I'm not aware if there are other agencies that did so.

[00:43:42] Speaker 07:
That's a Department of Health and Human Services, right?

[00:43:46] Speaker 07:
In here.

[00:43:47] Speaker 06:
The Indian Health Service, I believe it is.

[00:43:49] Speaker 06:
I think that's right, Your Honor.

[00:43:51] Speaker 07:
So they did pay, with respect to COVID-19, hazardous pay to some employees?

[00:43:57] Speaker 06:
To certain ones physically working at a health station, clinic, or hospital.

[00:44:00] Speaker 06:
So essentially, health care workers.

[00:44:03] Speaker 07:
Do you know of any other agencies that also may determine that their employees were entitled to hazardous pay?

[00:44:12] Speaker 06:
I don't know, Your Honor.

[00:44:13] Speaker 06:
There may be.

[00:44:15] Speaker 06:
I'm not sure.

[00:44:15] Speaker 07:
OK, thank you.

[00:44:16] Speaker 05:
Are you aware of whether the Interior Department did that?

[00:44:19] Speaker 05:
I'm sorry?

[00:44:19] Speaker 05:
Are you aware of whether the Interior Department did that?

[00:44:23] Speaker 06:
I just don't know.

[00:44:24] Speaker 06:
I don't know, Your Honor.

[00:44:25] Speaker 10:
I just want to follow up on that.

[00:44:27] Speaker 10:
So let's just take two hypotheticals.

[00:44:28] Speaker 10:
The first hypothetical is a doctor is working with a petri dish with COVID in it, trying to come up with a cure.

[00:44:35] Speaker 10:
That would fall under the biologic regulatory language, wouldn't it?

[00:44:40] Speaker 06:
Assuming that their job description did not specifically include working with the hazard, then it could be compensable, yes.

[00:44:47] Speaker 10:
OK.

[00:44:47] Speaker 10:
So now, suppose instead that same doctor is working in a COVID ward.

[00:44:52] Speaker 10:
They're actually working in a federal hospital, like an NIH-type facility or a federal hospital, where they're being asked to care for people who are dying of COVID.

[00:45:05] Speaker 10:
Is that covered by the biologic regulation?

[00:45:09] Speaker 06:
So again, assuming that

[00:45:11] Speaker 06:
the doctor's job description doesn't include or provide for exposure to the types of virulent biologicals.

[00:45:19] Speaker 06:
And his bosses or the agency said, I'm directing you specifically to go work in the COVID unit, potentially.

[00:45:26] Speaker 06:
For the same reason that bringing back to the laboratory example of the so-called scientist rule, there may be scientists who work in the laboratory but don't work with virulent biologists.

[00:45:35] Speaker 06:
They work with something much less dangerous or not dangerous at all.

[00:45:39] Speaker 06:
And I can imagine a scenario where

[00:45:41] Speaker 06:
in an emergency situation, a lab that required someone with specific knowledge, skills, and ability to come in and work with something that was specifically dangerous.

[00:45:51] Speaker 06:
So there may be a lab technician who never works with Ebola who, for whatever reason, is specifically assigned to go into that lab.

[00:45:58] Speaker 10:
My hypothetical wasn't a lab, right?

[00:46:01] Speaker 10:
It was a hospital or a COVID ward.

[00:46:03] Speaker 10:
I just wanted to see.

[00:46:04] Speaker 10:
I was trying to understand if you believe there's a difference between a biologic contained in a vessel of the form of a Petri dish or a biologic contained in a vessel in the form of a human being.

[00:46:14] Speaker 10:
That's what I'm trying to understand.

[00:46:16] Speaker 10:
And you answered my hypothetical that, yes, in both of those cases, under the limitations you articulated, hazardous duty pay could be available.

[00:46:25] Speaker 06:
Yes, so clearly, as we described in our brief, the human beings are not containers.

[00:46:30] Speaker 06:
And so for the reason that we described in the brief that they wouldn't be eligible based on that, I was relying on the assumption.

[00:46:36] Speaker 10:
One wouldn't be eligible based on that.

[00:46:37] Speaker 10:
The doctors who worked with the human beings in the COVID ward would not be eligible for hazardous duty pay either under either of the two statutes or sets of regulations.

[00:46:46] Speaker 06:
They wouldn't be eligible for EDP because people are containers.

[00:46:50] Speaker 06:
That's not what I'm saying.

[00:46:51] Speaker 06:
The keystone here is whether they were assigned specifically to work with the variant biologic.

[00:46:55] Speaker 10:
So they would not be eligible for EDP because humans aren't containers.

[00:46:58] Speaker 10:
Is that your argument?

[00:46:59] Speaker 10:
I just want to make sure I'm understanding you.

[00:47:01] Speaker 06:
No, I apologize for being a little bit unclear.

[00:47:03] Speaker 06:
It's not because human beings are containers that they could be eligible for EDP.

[00:47:09] Speaker 06:
Rather, we have noted that human beings are not containers.

[00:47:12] Speaker 06:
They may be eligible for EDP.

[00:47:15] Speaker 06:
They're not wage system employees, but EDP or HDP if they were specifically assigned to deal with the virulent biological.

[00:47:23] Speaker 06:
So it would be really the HDP.

[00:47:25] Speaker 13:
What does that mean?

[00:47:28] Speaker 13:
were exposed in the ICU to people with COVID that they could get hazard duty pay?

[00:47:36] Speaker 06:
Potential exposure is not enough.

[00:47:37] Speaker 06:
What is required, again, to bring it back to the regulations, the HCP regulations at section 550.

[00:47:44] Speaker 13:
What I'm trying to get at is, is there a situation which human-to-human contact could lead to exposure to a biologic that would entitle them to hazardous duty pay?

[00:47:58] Speaker 06:
There may be a narrow set of circumstances.

[00:48:00] Speaker 06:
We gave one example in our brief where the prison worker is actually taking swabs of infected inmates.

[00:48:09] Speaker 06:
They were directed to do so.

[00:48:11] Speaker 06:
It wasn't part of their ordinary job responsibilities in the sense that they're not a health care worker, et cetera.

[00:48:16] Speaker 06:
So that would be an example where they might be able to be eligible for HDP because they're working with a person and not a flask or a petri dish.

[00:48:24] Speaker 00:
Well, I keep coming back to the same problem because of all of it.

[00:48:27] Speaker 00:
We say there may be.

[00:48:28] Speaker 00:
There may be.

[00:48:30] Speaker 00:
And yet you say that we don't know.

[00:48:32] Speaker 00:
We don't know whether health care workers have a higher infection rate or others.

[00:48:41] Speaker 00:
We don't know any of these things despite the powerful experience that the nation has had the last three years with this virus.

[00:48:51] Speaker 06:
Judge, I'm not trying to dodge the hypotheticals, but rather there is a key part of the question that we were not talking about, which is that in the regulations, Section 904 says that an agency shall pay the hazard pay differential listed in Appendix A of the subpart to an employee who is assigned to and performs any duty specified in Appendix A. And in Appendix A, the virulent biological category is part of a broader category called exposure to hazardous agents.

[00:49:19] Speaker 06:
And that requires specifically work with or in close proximity to a vermic biological.

[00:49:24] Speaker 06:
So an employee must be assigned to work with or in close proximity to the biological itself.

[00:49:29] Speaker 06:
And the reason why this language is important, it differs from other hazards in the HDP regulations.

[00:49:35] Speaker 06:
For example, one of the hazards is exposure to hazardous weather or terrain, where work or travel in sparsely settled or isolated areas results in exposure to temperatures or wind velocity shown to be of considerable danger.

[00:49:49] Speaker 06:
In that situation, the regulations contemplate an employee doing their ordinary job responsibilities, traveling from one place to another in a sparsely settled area.

[00:49:57] Speaker 06:
And if a hazard such as very dangerous wind or

[00:50:00] Speaker 06:
temperature conditions arises, they would be eligible for HDP.

[00:50:04] Speaker 06:
Unlike those regulations, the virulent biological regulation specifically requires working with or in close proximity to the virulent biological, not to someone who is potentially infected.

[00:50:15] Speaker 06:
So they have to be assigned to and work with.

[00:50:18] Speaker 06:
That's why.

[00:50:19] Speaker 08:
So you're saying now, I'm still back to the chief's question and what your answer was and Judge Dyke's follow up.

[00:50:25] Speaker 08:
You're saying person to person, even if it's working in an infirmary, doesn't count.

[00:50:31] Speaker 08:
But if that person is exposed to the swab, a swab taken from one of the people in the infirmity,

[00:50:38] Speaker 08:
than that would be covered?

[00:50:40] Speaker 06:
No, what I'm saying is that it would be covered provided that the health care worker was specifically directed to work with or in close proximity to the variant biological.

[00:50:48] Speaker 06:
So if you took a nurse, for example, who was working perhaps in the radiology unit, doesn't work on the ICU or work with other patients on a regular basis, and they say to her,

[00:51:00] Speaker 06:
We're short-staffed.

[00:51:02] Speaker 06:
We need to put you in the COVID unit.

[00:51:03] Speaker 06:
You're going to be working directly with these people.

[00:51:05] Speaker 06:
You're going to help innovate them, et cetera.

[00:51:07] Speaker 06:
Then, yes, that health care worker would be eligible for HDP in this situation.

[00:51:13] Speaker 13:
So that would include someone in a prison environment who's assigned to work in the infirmary with COVID-infected patients.

[00:51:19] Speaker 06:
No, because if they're normally performing the ordinary job responsibilities, which is what is alleged in this case, which is that they are escorting prisoners, handcuffing them,

[00:51:31] Speaker 06:
searching them, et cetera.

[00:51:32] Speaker 06:
They're not specifically assigned to work with a virulent biologist.

[00:51:35] Speaker 06:
They're specifically assigned to do their everyday job responsibilities.

[00:51:38] Speaker 10:
Respectfully, prior to 2020, none of these people you're describing had as part of their position description worked with people with COVID.

[00:51:47] Speaker 10:
So while a nurse may have worked in the ICU with people who just experienced a heart attack or other sorts of medical conditions, her job description wouldn't have said,

[00:51:58] Speaker 10:
work with people with this disease for which we have no cure, and you might die, and there's no vaccine.

[00:52:04] Speaker 10:
So it can't just be whether she worked with patients.

[00:52:08] Speaker 10:
The job had to have had the expectation upon her hiring that her pay already included this hazard, working with COVID people.

[00:52:17] Speaker 06:
Certainly, Your Honor.

[00:52:18] Speaker 06:
I mean, part of the problem with the hypothetical of the medical profession is that very frequently, their job descriptions would include being exposed to

[00:52:25] Speaker 06:
biological contamination from individuals.

[00:52:27] Speaker 06:
But in this case, it's key to remember that this is not the first epidemic or pandemic that this country has ever encountered.

[00:52:38] Speaker 06:
Airborne communicable diseases and outbreaks of them in prisons occur all the time, whether it's tuberculosis.

[00:52:44] Speaker 05:
Sorry.

[00:52:44] Speaker 05:
So are you suggesting that the COVID situation that we've been going through is kind of like on normal?

[00:52:52] Speaker 05:
flu, seasonal flu, or you accepting what other parts of the government have been saying loudly and for two and a half years, that this is a highly unusual version of contagious diseases, worse than anything we've seen, I don't know, pick 1918 or 1967 or whatever.

[00:53:14] Speaker 05:
I mean, why is that not enough to be unusual?

[00:53:17] Speaker 06:
Because it doesn't meet the specific regulatory language.

[00:53:20] Speaker 05:
OK, so let's forget about unusual.

[00:53:23] Speaker 05:
Some of what you've been saying, and I've been trying to get to think of where this

[00:53:30] Speaker 05:
subject to be assigned duty sounds like a distinction that appears in certain discrimination law about the difference between doing something because of or in spite of.

[00:53:42] Speaker 05:
Are you suggesting that the exposure has to be because of the

[00:53:51] Speaker 05:
of the presence, the proximity has to be specifically because of the assignment of being in a place in which you are near has to be chosen by the assigner because of the nearness or

[00:54:13] Speaker 05:
but not simply because you've been assigned a duty that happens to put you near a disease vector.

[00:54:21] Speaker 06:
The second part of what you said is definitely correct, Your Honor.

[00:54:23] Speaker 06:
I think that the first part also is as well.

[00:54:26] Speaker 06:
What I'm saying is that based on the regulatory language in section 904, which says an employee is eligible for HDP when they are assigned to and perform,

[00:54:35] Speaker 05:
It sounds like the distinction you're making, and I guess I'm having some trouble getting it out of language that has nothing to do with intent at all, which is a matter where this comes from in discrimination law.

[00:54:48] Speaker 05:
It just says the duty that you're assigned to puts you near this bad stuff.

[00:54:56] Speaker 06:
The focus of the assignment has to be specifically the virulent biological.

[00:55:00] Speaker 06:
So it's not incidental.

[00:55:01] Speaker 05:
You keep saying that.

[00:55:02] Speaker 05:
And I'm trying to understand.

[00:55:04] Speaker 05:
And you keep jumping over.

[00:55:05] Speaker 05:
The crucial thing is, how do you justify that translation of words that don't say that into this concept under which you win?

[00:55:15] Speaker 06:
Because the regulations say assign.

[00:55:16] Speaker 06:
I'll take it bit by bit.

[00:55:18] Speaker 06:
The regulations say assign to work with a virulent biological.

[00:55:22] Speaker 05:
No, they don't.

[00:55:22] Speaker 05:
They say assign to work with.

[00:55:24] Speaker 05:
Or be in close proximity to it.

[00:55:26] Speaker 06:
Right.

[00:55:27] Speaker 06:
I was going to get to that in a moment, Your Honor.

[00:55:29] Speaker 06:
But so in that example, I think it's pretty clear that when the regulations require an employee to be assigned to work with a variant biological, it doesn't mean work near someone who's infected.

[00:55:40] Speaker 05:
I will, as they say, spot you that half.

[00:55:43] Speaker 05:
It's the other half that's of concern, right?

[00:55:45] Speaker 06:
Sure.

[00:55:46] Speaker 06:
And so in this case,

[00:55:48] Speaker 06:
And this brings us back to this court's decision in Adair.

[00:55:53] Speaker 06:
What does it mean to be assigned to work in close proximity to a variant biological?

[00:55:58] Speaker 06:
And that is where this court's decision in Adair comes into place, and that comes into play.

[00:56:02] Speaker 07:
And so also- Let me ask you this question, then, just to kind of sum up all the different hypotheticals we've been having.

[00:56:09] Speaker 07:
Can you tell me if this is correct or not, this statement I'm about to make?

[00:56:14] Speaker 07:
that there are circumstances when a correctional officer can be entitled to hazardous pay.

[00:56:19] Speaker 06:
Yes.

[00:56:20] Speaker 07:
Thank you.

[00:56:21] Speaker 06:
And to get back to what I was saying a moment ago, the Adair case talks about what it means to work with or in close proximity to a virulent biological.

[00:56:30] Speaker 06:
And that's also where the examples in the guidance and the federal personnel manual come into play.

[00:56:35] Speaker 06:
So when we're talking about the court has to determine what it means to work in close proximity to a virulent biological, not what it means to work in close proximity to someone who's infected.

[00:56:44] Speaker 06:
And so when you look at the regulations, you look at the history of the regulations, the guidance that was issued, this court's decision up there, it was clear that the court focused on the types of tasks that were at issue there.

[00:56:56] Speaker 06:
Cleaning sterilized entrance, working with petrodishes, working with flasks.

[00:56:59] Speaker 06:
That's the kind of stuff that we're talking about working in close proximity to something needs, not simply incidentally being exposed to someone who is infected.

[00:57:08] Speaker 13:
I find your distinctions somewhat incoherent.

[00:57:12] Speaker 13:
Is your position that?

[00:57:14] Speaker 13:
human-to-human contact that's required as part of the job can lead to exposure to biologics and to compensation?

[00:57:27] Speaker 06:
I think that I would need more information with the hypothetical, Your Honor.

[00:57:30] Speaker 06:
Is it possible?

[00:57:30] Speaker 06:
Is there any situation which being near another individual could give rise potentially?

[00:57:35] Speaker 06:
But I think that I need more information.

[00:57:38] Speaker 13:
Well, that's the problem.

[00:57:40] Speaker 13:
We have to draw lines.

[00:57:42] Speaker 13:
And it's not clear what the line is that you would have us draw.

[00:57:46] Speaker 13:
I can understand the line that says regulation's not devoted to human to human exposure, and you need a new regulation to reach that.

[00:57:56] Speaker 06:
But you don't seem to be saying that.

[00:57:58] Speaker 06:
Well, I think, Your Honor, your question highlights the problem with the plaintiff's theory in this case.

[00:58:03] Speaker 06:
They're unable to articulate any limiting principle

[00:58:07] Speaker 06:
a reimbursement of compensation for working in close proximity to anyone with a communicable disease.

[00:58:13] Speaker 10:
Counsel, I hate to say this, but I kind of share Judge Steich's summation of your position.

[00:58:19] Speaker 10:
And I'm really troubled.

[00:58:22] Speaker 10:
I thought the government's position, and I must now be wrong, but I thought the government's position on the regulatory interpretation was that

[00:58:35] Speaker 10:
when it says working with or in close proximity to a poison or a biologic, that that did not include working in or in close proximity to a human that happens to be sick.

[00:58:46] Speaker 10:
I thought I understood the government's regulatory interpretation to draw a line, which is what we have to do in interpreting this provision.

[00:58:56] Speaker 10:
But you seem to have gone all over the place on this question.

[00:59:00] Speaker 10:
Do you not draw that line?

[00:59:02] Speaker 10:
Is your view, as you stand here in the final 22 seconds of your argument, the government has not drawn a line that says that this regulation as written does not include human to human exposure?

[00:59:15] Speaker 06:
The regulation as written certainly has applied to all of the plaintiffs that we've been talking about here.

[00:59:20] Speaker 06:
It does not apply to individuals who happen to be or may be infected with any communicable disease.

[00:59:25] Speaker 06:
So Your Honor is right that we are not stating that exposure to individual people who may be infected is sufficient.

[00:59:33] Speaker 10:
What about individual people who are infected?

[00:59:36] Speaker 06:
No, because it's not contemplated by the regulations.

[00:59:39] Speaker 06:
The regulations contemplate working with or in close proximity to the virulent biological, not a person who happens to be infected.

[00:59:45] Speaker 06:
And again, that's where the Adair case talks about what it means.

[00:59:49] Speaker 10:
Then why did you preface your answer to that question with the people we're talking about here it doesn't apply to?

[00:59:55] Speaker 06:
Well, because it's key to this case, Your Honor.

[00:59:57] Speaker 06:
And not just this case, but also the other cases that we mentioned in our brief, the class action that involves people who are walking down the street checking license plates or going into a crowded convenience store where they're alleging that they're entitled to hazard pay for being near human beings, other people who may or may not be infected.

[01:00:14] Speaker 06:
And for that reason, that's why we're saying in those situations, they're clearly not available.

[01:00:19] Speaker 06:
The HDP and EDP

[01:00:22] Speaker 06:
civilian pay is not available in those situations.

[01:00:24] Speaker 01:
Council, just to clarify, are you then changing the answer to your question about whether medical professionals who are treating patients with COVID fall under this definition?

[01:00:36] Speaker 01:
Because I thought you said earlier that they did.

[01:00:39] Speaker 06:
I think it ultimately depends on both the job description and exactly the tasks that are involved.

[01:00:45] Speaker 01:
Is it a yes or a no?

[01:00:48] Speaker 06:
I'm not changing my answer, Your Honor, because there may potentially be a situation where

[01:00:52] Speaker 06:
It's qualitatively different to say a health care worker who's going in and specifically directed to work with SARS-CoV-2.

[01:01:00] Speaker 06:
They may be entitled to a hospital.

[01:01:01] Speaker 01:
A person, a patient who has it.

[01:01:04] Speaker 06:
Well, I think that depending on the situation, they may be entitled to it.

[01:01:08] Speaker 02:
Can you just identify what would be the situation where a medical professional or any federal employee was interacting with a COVID-infected patient that would qualify for hazard duty pay under purulent biologicals?

[01:01:22] Speaker 02:
Aside from doing the swab test, is there anything else?

[01:01:27] Speaker 02:
Are there other circumstances?

[01:01:30] Speaker 06:
So if we're going to assume away all of the restrictions about the job classification.

[01:01:36] Speaker 02:
Right.

[01:01:36] Speaker 02:
It's outside their normal duties as described in their job description.

[01:01:42] Speaker 06:
I think potentially if a nurse was who, an example I gave was working in a radiology department, never worked with, directed with people, or even, I'll say that, not working with people in a radiology department, was assigned specifically to,

[01:02:00] Speaker 06:
work with someone in the ICU who is innovating, someone who is dying of COVID and has enormous amounts of COVID that are being emitted as part of the innovation process, a protocol.

[01:02:14] Speaker 06:
It's an example like that where they're specifically assigned to do that for COVID, not just randomly.

[01:02:18] Speaker 02:
When you say to do that, to do what?

[01:02:20] Speaker 06:
To participate in innovation.

[01:02:22] Speaker 06:
as some of us may have read, when innovating, someone was very sick.

[01:02:26] Speaker 03:
Is that because the exposure is going to be to the virus and the bodily fluids rather than just person to person exposure?

[01:02:36] Speaker 06:
Well, I'm not sure what the distinction is between person-to-person versus bodily fluid.

[01:02:41] Speaker 03:
I'm honestly a little confused too why you're not just saying person-to-person exposure is not contemplated by these things because it actually requires exposure to the underlying virus.

[01:02:57] Speaker 03:
Well, I mean, I know you're trying to not foreclose a reading that would give benefits to people in the future if they come up with a better argument, but it's certainly kind of making us unsure of where to draw the line.

[01:03:12] Speaker 03:
You only want to talk about this case, but we're sitting on bonk to interpret a regulation.

[01:03:16] Speaker 03:
We're going to draw lines.

[01:03:18] Speaker 03:
What line do you want us to draw here?

[01:03:21] Speaker 06:
Well, the line is

[01:03:22] Speaker 06:
An employee is not eligible for HDP or EDP based on working with anyone who happens to be infected.

[01:03:30] Speaker 06:
So when they're performing their ordinary job responsibilities, like searching someone, or working in an office, or checking license plates, and they happen to be near someone who is infected, that is qualitatively different than being directed to work with a variant biological, either directly.

[01:03:44] Speaker 01:
What about being directed to oversee potentially

[01:03:49] Speaker 01:
touch and grab somebody who has COVID.

[01:03:53] Speaker 01:
I mean, that's the hypothetical that I think we're being asked to address today.

[01:03:59] Speaker 06:
Well, I think Judge Hughes is right that the plaintiff or an employee has to allege that they were working with the virus itself.

[01:04:07] Speaker 06:
And so not exactly with someone who was, maybe that's a better way of stating it, working with the virus itself versus working with someone who is infected with it.

[01:04:15] Speaker 07:
But the statute says close proximity.

[01:04:17] Speaker 07:
It's not just limited to working with the virus alone.

[01:04:22] Speaker 06:
It's being in close proximity to it also, correct?

[01:04:25] Speaker 06:
Correct, but that's why the Adair case shed light on this issue about what it means to work in close proximity to.

[01:04:30] Speaker 06:
The examples in the federal personnel manual give color to what it means to work with

[01:04:34] Speaker 06:
I mean, in close proximity.

[01:04:35] Speaker 06:
In Adair, the question was whether environmental tobacco smoke contained toxic chemicals.

[01:04:39] Speaker 06:
There was no dispute that there was smoke in the air all the time, in some sense analogous to whether the coronavirus was in the air.

[01:04:47] Speaker 06:
If all it took was for it to be in the air and someone to be in the room, then the Adair case should have been decided differently.

[01:04:52] Speaker 06:
I know that this case is sitting on block, and you don't rule it.

[01:04:54] Speaker 06:
But the logic of what it means to work with or in close proximity to applies equally here, that the types of tasks that OPM was intending to cover

[01:05:03] Speaker 06:
is not simply being in a place where it happens to be in the air.

[01:05:07] Speaker 06:
It has to be working, specifically working with or in close proximity to the virus itself.

[01:05:11] Speaker 10:
Okay, Council, we've exceeded your time.

[01:05:13] Speaker 10:
Thank you very much.

[01:05:14] Speaker 10:
Ms.

[01:05:14] Speaker 10:
Elfkin, I'll restore your eight minutes of requested revival time.

[01:05:18] Speaker 11:
Thank you, Your Honors.

[01:05:20] Speaker 11:
The government's argument makes plain that there's no meaningful difference between

[01:05:26] Speaker 11:
working with a vial of coronavirus or working with a human with coronavirus.

[01:05:32] Speaker 11:
And in the context of these prison workers, if you want a line, I mean, this is the case, to draw the line.

[01:05:40] Speaker 11:
These workers, like I said, will be able to prove where they were assigned on a day-by-day basis because the United States Bureau of Prisons keeps track of that.

[01:05:48] Speaker 11:
They will be able to prove on a day-by-day basis.

[01:05:51] Speaker 10:
We have to tell you to go amend your complaint.

[01:05:53] Speaker 10:
We can't draw the line here because all the things that you want us to base the line on don't exist in your complaint.

[01:05:59] Speaker 10:
And so if we overturned the dismissal here, it would open the floodgates to anybody in any job with any exposure.

[01:06:07] Speaker 10:
So all the stuff you've alleged is not in your complaint.

[01:06:11] Speaker 10:
So this isn't the case.

[01:06:12] Speaker 10:
The best argument you could make there, if your argument really is that the prison guards are special, is give us a chance to amend the complaint to show you that.

[01:06:20] Speaker 10:
And then this is the case.

[01:06:22] Speaker 11:
Your Honor, if that's, again, we believe that our complaint is as well pled.

[01:06:27] Speaker 11:
It's not.

[01:06:28] Speaker 11:
Well, we can amend the complaint, and we can

[01:06:31] Speaker 11:
submit a complaint that talks about how these workers worked in close proximity, something that the government seems to ignore in the regulation, to the coronavirus.

[01:06:40] Speaker 11:
In before times, when they had to work with the inmates and escort them and feed them and transport them, that was their job.

[01:06:49] Speaker 11:
Now, or during the pandemic before vaccines, their job was to transport, feed, and escort inmates who were infected with coronavirus.

[01:06:58] Speaker 11:
The rest of us were in the basement.

[01:06:59] Speaker 11:
We were in the basement.

[01:07:01] Speaker 11:
These are the workers who can and did state a claim for relief under their well-cled complaint.

[01:07:06] Speaker 11:
And if you're worried about the floodgates, you have tools at your disposal to draw the line.

[01:07:12] Speaker 11:
And the line and the limitations.

[01:07:13] Speaker 13:
Suppose you have NIH lab.

[01:07:17] Speaker 13:
It's working on the flu.

[01:07:18] Speaker 13:
And somebody is exposed to the flu.

[01:07:21] Speaker 13:
Do they get hazardous duty pay under this regulation?

[01:07:24] Speaker 11:
No, Your Honor.

[01:07:24] Speaker 11:
There's nothing.

[01:07:25] Speaker 13:
What's the difference between the flu and COVID in terms of the regulatory language?

[01:07:31] Speaker 11:
The Burial and Biological is defined as something that is going to get you really sick or kill you, and there's no protections for it.

[01:07:38] Speaker 11:
The flu for I don't know how many years, a half a century, we've had vaccines.

[01:07:44] Speaker 11:
We've had flu outbreaks in prisons.

[01:07:46] Speaker 11:
All the time.

[01:07:47] Speaker 11:
We're not in this courtroom looking for COVID pay, hazardous duty pay for the flu.

[01:07:52] Speaker 11:
The flu is not unusual.

[01:07:53] Speaker 11:
There's nothing unusual about it.

[01:07:55] Speaker 11:
COVID-19, when you're just considering whether there's anything unusual about this, get in your time machines and park them in front of March of 2020.

[01:08:03] Speaker 13:
Where does the regulations say that it has to be an unusual biologic?

[01:08:07] Speaker 11:
The statute says it has to be an unusual hazard.

[01:08:10] Speaker 11:
And the regulation says a virulent biological is something that when it gets in you, it's going to get to you.

[01:08:15] Speaker 11:
It's likely to cause serious illness, or it could kill you.

[01:08:19] Speaker 11:
The flu is not that.

[01:08:20] Speaker 11:
And so when you're considering whether it's unusual.

[01:08:22] Speaker 13:
30,000 people a year die from the flu.

[01:08:24] Speaker 11:
Your Honor, it doesn't meet the definition.

[01:08:26] Speaker 11:
I don't know a plaintiff lawyer in the country who would come in here and try to get hazardous CDK for the flu.

[01:08:32] Speaker 11:
But when you were considering if there's anything unusual or different about the COVID,

[01:08:37] Speaker 11:
Go in your time machines, park them in front of March 2020 when there were ventilators, not enough going around.

[01:08:44] Speaker 11:
There were refrigeration trucks parked outside of every overcrowded hospital in this country.

[01:08:49] Speaker 11:
When we were all at home, when the schools were closed, when there were no funerals, when people died in hospitals alone, when there were no funerals, when there were no funerals, there were no graduations, there were no weddings, there was, we didn't do these things, every single

[01:09:06] Speaker 11:
Every single rite of passage passed without anybody to mark them.

[01:09:11] Speaker 11:
This was unusual.

[01:09:12] Speaker 11:
The flu is not like that.

[01:09:14] Speaker 11:
We're not coming in the courtroom asking for hazardous duty pay for the flu.

[01:09:17] Speaker 11:
We are coming in the courtroom with these specific workers who were locked inside a prison.

[01:09:22] Speaker 05:
I think I've got that point.

[01:09:25] Speaker 05:
Can I ask you, why should the regulation not be interpreted to limit

[01:09:35] Speaker 05:
the in-close-proximity language to situations in which the presence of the microorganism is the reason for the employee's presence in Europe.

[01:09:50] Speaker 11:
Your Honor?

[01:09:51] Speaker 11:
because it would be inconsistent with the statute.

[01:09:54] Speaker 11:
The statute does not say that the virulent biological has to be the focus of the work.

[01:09:59] Speaker 11:
The government is wrong on that point.

[01:10:01] Speaker 11:
Instead, the statute says that an employee is entitled to be paid the appropriate differential for any period in which he is subjected.

[01:10:11] Speaker 11:
He is subjected to the physical hardship or hazard not usually involved in carrying out the duties of his job.

[01:10:18] Speaker 11:
That is exactly what we have here.

[01:10:22] Speaker 11:
They went into the storm, into the unprecedented storm, where it rained down virulent biologicals on them, it rained down microorganisms on them, and they went into that storm without the protection

[01:10:35] Speaker 11:
without the protection of a raincoat or an umbrella.

[01:10:38] Speaker 11:
These are the workers who are entitled to this hazardous duty pay.

[01:10:40] Speaker 11:
You don't have to look beyond the plain language of the house.

[01:10:43] Speaker 09:
Sorry?

[01:10:44] Speaker 09:
You just mentioned no raincoat, no umbrella.

[01:10:46] Speaker 09:
They had no masks.

[01:10:47] Speaker 09:
They had no PPE.

[01:10:48] Speaker 11:
Well, if you remember, you're parking that time machine in front of March of 2020.

[01:10:53] Speaker 11:
Hospital workers didn't have masks.

[01:10:55] Speaker 11:
We were at home knitting masks.

[01:10:57] Speaker 11:
So to the extent they even have masks, we all know from science, which we're allowed to put on our case, masks didn't stop the pandemic from spreading from human vessel to human vessel, which is how we spread this disease.

[01:11:08] Speaker 11:
We shed it.

[01:11:09] Speaker 11:
We cough.

[01:11:10] Speaker 11:
We walk.

[01:11:10] Speaker 11:
We talk.

[01:11:11] Speaker 11:
That's exactly what's happening in these overcrowded prisons.

[01:11:14] Speaker 11:
These workers had no choice but to go and work in these overcrowded prisons.

[01:11:18] Speaker 07:
You bring up an interesting point when you say get in your time machine.

[01:11:24] Speaker 07:
our jurisprudence on pleading.

[01:11:28] Speaker 07:
And because of the ease in employing hindsight, sitting here in 2022, looking back, and we're all, well, there's people here wearing masks.

[01:11:41] Speaker 07:
But at one time, so what period do we look at in terms of the complaint?

[01:11:47] Speaker 07:
Is it when the complaint was filed, or is it the way conditions are now?

[01:11:51] Speaker 11:
Um, your honor, that's an excellent question.

[01:11:53] Speaker 11:
And I believe that the answer is we have stated the claim for relief based on the regulations and the statute up through from the start of the pandemic, up through the date that vaccines were readily available.

[01:12:05] Speaker 11:
And after that time, we don't meet the definition anymore because it's the flu.

[01:12:09] Speaker 11:
Okay.

[01:12:10] Speaker 11:
So we are, we, we have, we can limit this.

[01:12:13] Speaker 11:
We can get this right when we put on our case in the lower court, please send us back there.

[01:12:18] Speaker 11:
Let us put on our case, if there were ever a group of workers entitled to this type of pay that Congress put on the books for working under, performing your regular job duties under unusually severe or hazardous conditions, these are the workers.

[01:12:32] Speaker 11:
These are the workers.

[01:12:33] Speaker 11:
These are the workers.

[01:12:34] Speaker 11:
Go back in time, one more time, to New York City with all of the residents hanging out their windows, banging on their pots and pans at 7 o'clock at night.

[01:12:44] Speaker 11:
cheering on the first line responders and compare that.

[01:12:47] Speaker 11:
Compare that, please, to the United States position here.

[01:12:49] Speaker 09:
Hey, over here.

[01:12:50] Speaker 11:
Sorry.

[01:12:51] Speaker 09:
Does your theory include both potential exposure and actual exposure, or just one or the other?

[01:12:56] Speaker 09:
I'm trying to just make sure I understand what you're saying.

[01:13:00] Speaker 09:
And we're in New York and all the places.

[01:13:02] Speaker 11:
OK, so I'm going to go back to New York in a minute.

[01:13:04] Speaker 11:
But it includes both.

[01:13:06] Speaker 11:
It includes both potential exposure and actual exposure.

[01:13:11] Speaker 11:
But the key here is that the plaintiff, whatever plaintiff comes in this court, has to prove that there was a sick person or that there was an infectious person.

[01:13:21] Speaker 11:
The potential exposure is the guy on the roof, right?

[01:13:26] Speaker 11:
In the example, he doesn't have to fall off the roof to get the pay.

[01:13:29] Speaker 11:
We don't have to show that we were actually exposed in order to get the pay.

[01:13:34] Speaker 11:
What we have to show is that the correctional officer was assigned to a position where he was either guarding, feeding, working with an inmate who had infection, which we will be able to show based on the assignment data and the incredibly good job the government did in terms of tracking who was sick in this prison.

[01:13:50] Speaker 10:
Well, thank you, Mrs. Elkin.

[01:13:51] Speaker 10:
Your time is up.

[01:13:51] Speaker 10:
We take this case under submission.