ADAMS v. US , No. 21-1662 (Fed. Cir. 2022)

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Case: 21-1662 Document: 40 Page: 1 Filed: 06/27/2022 United States Court of Appeals for the Federal Circuit ______________________ CODY L. ADAMS, ROSE M. ADAMSON, JOSEPH P. AGIUS, DARA W. ALLICK, JENNIFER A. ANGEL, MICHAEL T. ANGELO, SAMMY APONTE, ALICIA K. AUSTIN-ZITO, LUKE M. BADARACCO, CHAD J. BARGSTEIN, ET AL., Plaintiffs-Appellants v. UNITED STATES, Defendant-Appellee ______________________ 2021-1662 ______________________ Appeal from the United States Court of Federal Claims in No. 1:20-cv-00783-CFL, Senior Judge Charles F. Lettow. ______________________ MOLLY A. ELKIN, McGillivary Steele Elkin LLP, Washington, DC, argued for plaintiffs-appellants. Also represented by GREGORY K. MCGILLIVARY, THEODORE REID COPLOFF. ERIC LAUFGRABEN, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by BRIAN M. BOYNTON, ERIC P. BRUSKIN, ALBERT S. Case: 21-1662 Document: 40 Page: 2 2 Filed: 06/27/2022 ADAMS v. US IAROSSI, PATRICIA M. MCCARTHY, CATHARINE PARNELL, LIRIDONA SINANI; ADAM GARRET EISENSTEIN, DOUGLAS SETH GOLDRING, Office of General Counsel, Federal Bureau of Prisons, United States Department of Justice, Washington, DC. PER CURIAM. ORDER This case was argued before a panel of three judges on October 6, 2021. Thereafter, a sua sponte request for a poll on whether to hear this case en banc was made. A poll was conducted, and a majority of the judges in regular active service voted for en banc consideration. Accordingly, IT IS ORDERED THAT: (1) This case will be heard en banc under 28 U.S.C. § 46 and Federal Rule of Appellate Procedure 35(a). The court en banc shall consist of all circuit judges in regular active service who are not recused or disqualified. (2) The parties are requested to file supplemental briefs to address the following issues: A. How should the term “unusual[]” be understood in the context of establishing “pay differentials” and “proper differentials” under 5 U.S.C. §§ 5343(c)(4), 5545(d)? B. In view of Adair v. United States, 497 F.3d 1244 (Fed. Cir. 2007), 5 C.F.R. § 550.902 (HDP Regulation), and Appendix A of 5 C.F.R. Pt. 550, Subpt. I (HDP Schedule), what is the meaning of “accident?” What distinction, if any, is there between accidental exposure and incidental exposure? Case: 21-1662 ADAMS v. US Document: 40 Page: 3 Filed: 06/27/2022 3 C. If we hold that the HDP Schedule and 5 C.F.R. Pt. 532, Subpt. E, Appx. A (EDP Schedule) are not limited to laboratory-specific duties, what limits, if any, are there to the “work[] with or in close proximity to” language in the HDP and EDP Schedules? D. Are infected persons and surfaces “primary containers of organisms pathogenic for man,” as recited in the EDP Schedule for distinguishing between high- and low-degree hazards? See EDP Schedule, at Microorganisms (emphasis added). E. If we conclude that the Court of Federal Claims properly granted dismissal, to what extent could the underlying complaint be amended to establish a plausible claim for relief that satisfies the “short and plain statement” standard of RCFC 8? (3) Appellants’ en banc opening brief is due 60 days from the date of this order. Appellee’s en banc response brief is due within 45 days of service of Appellants’ en banc opening brief, and Appellants’ reply brief within 30 days of service of the response brief. The court requires 28 paper copies of all briefs and appendices provided by the filer within 5 business days from the date of electronic filing of the document. The parties’ briefs must comply with Fed. Cir. R. 32(b)(1). (4) The court invites the views of amici curiae. Any amicus brief may be filed without consent and leave of court. Any amicus brief supporting Appellants’ position or supporting neither position must be filed within 14 days after service of Appellants’ en banc opening brief. Any amicus brief supporting the Appellee’s position must be filed within 14 days after service of the Appellee’s en banc response brief. Amicus briefs must comply with Fed. Cir. R. 29(b). Case: 21-1662 4 Document: 40 Page: 4 Filed: 06/27/2022 ADAMS v. US (5) This case will be heard en banc based on all of the briefing and oral argument. (6) Oral argument will be scheduled at a time and date to be announced later. FOR THE COURT June 27, 2022 Date /s/ Peter R. Marksteiner Peter R. Marksteiner Clerk of Court

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