2006-5077 | Omnilex

Gesamter Gesetzestext

United States Court of Appeals for the Federal Circuit
2006-5077
FRANK E. ADAIR, CYNTHIA A. ADAMS, JOSEPH ALDRIDGE, EMORY T. ALLEN,
JODEE B. ANDERSON, ALFREDO ARIAS, JOSEPH W. ARNETT, LISA D. AYRES,
CLYDE J. BAKER, SR., PAUL E. BARNARD, CHARLES M. BELL, ANTHONY O.
BENJAMIN, ROY E. BEVERLY, ARCHIE S. BOATRIGHT, JR., TERRY JAMES
BOULINEAU, JOHN BRADFORD, MARY ANN BRANCH, DANNY L. BRANTLEY, JODI
BRITT, YANCIE W. BRITT, MICHAEL E. BROWN, PRENTICE KERRY BROWN,
WILLIE M. BROWN, DONRET G. BUCKLEY, GREGORY A. BULLMAN, MICHAEL R.
BUNCH, JONATHAN NATHANIEL CANN, THOMAS WAY CARTER, ERIN J.
CHALFANT, GEORGIA A. CLARK, TYRONE CLARK, RICHARD L. CLEMONS,
THOMAS D. COFFEY, DEBRA R. COLEMAN, CHARLES S. COLLINS, JAY D.
COLLINS, RANDY L. COURSON, EARL F. COX, VINCENT L. CRAWFORD, VAN F.
CREWS, SR., ANTHONY DANCER, DEBRA DAVIS, ROBIN DAVIS, DARIUS E. DELA
CRUZ, WILLIAM LESLIE DELK, RICHARD EUGENE DENSON, RICKY DENT,
SANDRA DICKENS, JAMES DILLER, JEFF A. DOLLAR, CHARLES MITCHELL
DOWLING, GLENN DUNLAP, SR., KAREN S. DUNN, JAMES O. ECHOLS, JR.,
ALLEN EDENFIELD, BRIAN KEITH EDMUNDS, KERRY EDWARDS, DONALD J.
ENFINGER, TIMOTHY ESTEP, RETINA D. FELTON, DAN FORCE, JERRY C.
FORSYTH, JR., KERRY S. FRASIER, DALE T. FREDERICKS, BILLY R. FULKS,
CHARLES FUTCH, EDWARD L. GANNOM, RODOLFO GARCIA, JR., BRIAN D.
GARTNER, MARINA GIBSON, AMOS GIBSON, IV, ROBERT GILL, MERLE
GOARCKE, DONALD WAYNE GRAHAM, GABRIELSON GREER, BRIAN DONALD
HAGAN, GORDAN R. HAGGARD, RANDALL E. HAND, GEORGE A. HARGROVE,
BETH HARGROVE, J. BRIAN HARRELL, LAVADA YVONNE HARRELL, LUTHER F.
HARTER, BRENDA A. HEARN, JOE HEATHERLY, II, STEPHEN HENRIKSEN,
BENJAMIN JAMES HOCKENSMITH, JAMES HODGE, FLOYD HOWARD, SCOTT L.
HOYLE, THOMAS W. HUTCHESON, WALDEMAR ROSARIO INIGO, ERVIN A.
JACKSON, NATHANIEL V. JACKSON, LANCE E. JAMES, DAVID L. JARNIGAN,
TRACEY JERMON, BOBBY LEE JOHNSON, DONALD L. JOHNSON, CHRISTOPHER
JONES, MICHAEL J. JONES, EDWARD J. JONES, JR., DAMON KENNEDY, MANUEL
KING, MARK B. KING, JAMES W. LANKFORD, CARMON M. LARUE, RENEE C. LEE,
JAY JIMMIE LEE LEGGETT, KRISTIE LEGGETT, JEANNE LEROUX, CEDRIC W.
LINDSEY, ALVIN LEVON LOVETT, HORACE DAVID LOWMAN, G. ERIC MALLARD,
SHAWN R. MANNING, PRIMUS MANSFIELD, JR., JOSEPH TODD MARTEL,
ROBERT G. MASSEY, WILLIAM ROBERT MATHIS, JR., ALLEN MATTHEWS,
RONNIE D. MAULDIN, EDWARD F. MAURO, REGINALD B. MCEUEN, RONALD H.
MCGOWAN, JR., DIANE L. MCGRIFF, NORWOOD B. MCQUAIG, JR., JAMES Q.
MCRAE, III, JONATHAN MEAD, JANET MEDDERS, RICKEY MILES, CAMI MILLER,
RANDY MILTON, NASH D. MITCHELL, BENJAMIN MOORE, JOHNNY E. MOORE,
PATRICK C. MOORE, OSCAR J. MOORE, JUSTIN MORAN, DELMA L. MOSELEY,
JOSEPH MOSELEY, WAYNE MOSELEY, JAMES C. MOYE, LAWRENCE R. NANOY,

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DWIGHT ARLINGTON NEWBOULD, ELLIS LEE NICHOLS, STEEN W. NILE,
MICHAEL W. NOWLING, MARVIN ORANGE, MELISSA ORVIN, IGNACIO J.
PALACIO, DAVID M. PARKER, RICKY E. PARKER, R.F. PASLEY, ROBERT T. PITTS,
II, WESLEY K. POPWELL, NATASHA D. PORTER, WILLIAM H.S. PRATT, THOMAS
EUGENE PRESSON, ANNIE ARBUTHNOT PRICE, THOMAS N. PRICE, EARL
QUARTERMAN, ANITA A. RABIDOU, RANDALL A. REID, RONNIE C. REID,
JENNIFER RICKS, WILLIE H. ROACH, JR., CHAD E. ROBERSON, FRANK
ROBERTSON, MARIO ROBINSON, NEAL A. ROGERS, JASON ROGERS, RECO
RONCAGLIONE, WILLIAM D. (Dave) ROWLAND, JEFFEREY L. RUSSELL, JOANNE
SANTOYO, JOHN C. SCHELL, MARCUS V. SCOTT, RICKY SHEFFIELD,
DONALD (Ray) SHIFLET, BILLY M. SINGLETON, MARVIN SLUSSER, JEFFREY
SMITH, FRANCES A. SMITH, BOBBY L. SMITH, JR., ROBERT J. SMITH, JR., SEAN
L. SNOOK, DORIS E. SPELL, LARRY D. SPELL, LEONARD F. SPELL, WALTER
SPENCE, SCOTT N. STANLEY, RICHARD D. STARNES, BILLY RAY STODDARD,
JEFFREY STRICKLAND, ANGELA STRICKLAND, CHRISTOPHER J. STRICKLAND,
DANNY SULLIVAN, MARIA L. SUMNER, RANDALL LESLIE SUMNER, FREDERICK
C. SWEAT, STACEY R. SWEAT, BILLY R. TALLEY, RICHARD E. TANNER, RONALD
E. TAYLOR, MIGUEL A. TERRADAS, III, ROY THOMAS, ALAN THOMASON, BOBBY
L. THOMSON, JEREMY J. TODD, PAULINO TORRES, YOLANDA TUBBS, DONALD
L. VANHUSS, GARY WAHER, JR., BRADLEY WALKER, GLENN WALKER,
PAULETTE WALKER, GERALD W. WALLEY, DEBRACA WALTHOUR, HELEN H.
WASHINGTON, GUYLEE D. WASHINGTON, JR., JOHN K. WELLINGTON, CLYDE
WESTON, CAMERON P. WHEELER, DANNY WHEELER, ARTHUR L. WILLIAMS,
JOSEPH M. WILLIAMS, GARY E. WILLIAMS, SR., CONNIE L. WINDHAM, CALVIN L.
WINGATE, MARK WOLFORT, THOMAS WOOD, JACQUELYN N. WRIGHT, JOHN G.
YAWN, and ASHLEY A. YOUNG,
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee.
Wallace E. Harrell, Gilbert, Harrell, Summerford & Martin, P.C., of Brunswick,
Georgia, argued for plaintiffs-appellants. With him on the brief was James L. Roberts,
IV.
Douglas K. Mickle, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for defendant-
appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General and
Todd M. Hughes, Assistant Director. Of counsel on the brief was Melanie Watson,
Office of Personnel Management, Office of General Counsel, of Washington, DC. Of

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counsel was Alicia Daniels-Lewis, Labor Law Branch, Federal Bureau of Prisons, of
Atlanta, Georgia.
Appealed from: United States Court of Federal Claims
Judge Emily C. Hewitt

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DWIGHT ARLINGTON NEWBOULD, ELLIS LEE NICHOLS, STEEN W. NILE,
MICHAEL W. NOWLING, MARVIN ORANGE, MELISSA ORVIN, IGNACIO J.
PALACIO, DAVID M. PARKER, RICKY E. PARKER, R.F. PASLEY, ROBERT T. PITTS,
II, WESLEY K. POPWELL, NATASHA D. PORTER, WILLIAM H.S. PRATT, THOMAS
EUGENE PRESSON, ANNIE ARBUTHNOT PRICE, THOMAS N. PRICE, EARL
QUARTERMAN, ANITA A. RABIDOU, RANDALL A. REID, RONNIE C. REID,
JENNIFER RICKS, WILLIE H. ROACH, JR., CHAD E. ROBERSON, FRANK
ROBERTSON, MARIO ROBINSON, NEAL A. ROGERS, JASON ROGERS, RECO
RONCAGLIONE, WILLIAM D. (Dave) ROWLAND, JEFFEREY L. RUSSELL, JOANNE
SANTOYO, JOHN C. SCHELL, MARCUS V. SCOTT, RICKY SHEFFIELD,
DONALD (Ray) SHIFLET, BILLY M. SINGLETON, MARVIN SLUSSER, JEFFREY
SMITH, FRANCES A. SMITH, BOBBY L. SMITH, JR., ROBERT J. SMITH, JR., SEAN
L. SNOOK, DORIS E. SPELL, LARRY D. SPELL, LEONARD F. SPELL, WALTER
SPENCE, SCOTT N. STANLEY, RICHARD D. STARNES, BILLY RAY STODDARD,
JEFFREY STRICKLAND, ANGELA STRICKLAND, CHRISTOPHER J. STRICKLAND,
DANNY SULLIVAN, MARIA L. SUMNER, RANDALL LESLIE SUMNER, FREDERICK
C. SWEAT, STACEY R. SWEAT, BILLY R. TALLEY, RICHARD E. TANNER, RONALD
E. TAYLOR, MIGUEL A. TERRADAS, III, ROY THOMAS, ALAN THOMASON, BOBBY
L. THOMSON, JEREMY J. TODD, PAULINO TORRES, YOLANDA TUBBS, DONALD
L. VANHUSS, GARY WAHER, JR., BRADLEY WALKER, GLENN WALKER,
PAULETTE WALKER, GERALD W. WALLEY, DEBRACA WALTHOUR, HELEN H.
WASHINGTON, GUYLEE D. WASHINGTON, JR., JOHN K. WELLINGTON, CLYDE
WESTON, CAMERON P. WHEELER, DANNY WHEELER, ARTHUR L. WILLIAMS,
JOSEPH M. WILLIAMS, GARY E. WILLIAMS, SR., CONNIE L. WINDHAM, CALVIN L.
WINGATE, MARK WOLFORT, THOMAS WOOD, JACQUELYN N. WRIGHT, JOHN G.
YAWN, and ASHLEY A. YOUNG,
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
DECIDED: July 30, 2007
__________________________
Before MICHEL, Chief Judge, GAJARSA and DYK, Circuit Judges.
MICHEL, Chief Judge.
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Adair et al. (hereinafter “Adair”), prison guards at the Federal Correctional
Institution (“FCI”) in Jesup, Georgia, appeal from the final decision of the United States
Court of Federal Claims dismissing their complaint seeking enhanced back pay for their
exposure to inmates’ smoking for a lack of subject matter jurisdiction under the Tucker
Act. Adair v. United States, 70 Fed. Cl. 65 (2006). Discerning no reversible error on the
part of the Court of Federal Claims, we affirm the judgment of dismissal on the
alternative ground that the appellants failed to state a claim for which relief can be
granted. The statutes and implementing regulations the complaint invokes simply do
not apply to Adair because they do not cover second-hand smoke.
I. BACKGROUND
The Adair appellants are former and current (1) General Schedule employees
under the Classification Act of 1979 and (2) Wage Supervisor or Wage Grade
employees of the Federal Bureau of Prisons at the FCI in Jesup, Georgia. In 2005, the
Adair employees sued the United States government in the Court of Federal Claims for
back pay, hazard pay, environmental hazard pay, and contributions to thrift savings
accounts pursuant to 5 U.S.C. §§ 5545(d) (which mandates additional compensation to
General Schedule employees whose duties involve unusual physical hardships or
hazards) and 5343(c)(4) (which mandates additional compensation to Wage Supervisor
or Wage Grade employees whose duties involve unusually severe working conditions or
hazards) based on their exposure to Environmental Tobacco Smoke (“ETS”) (i.e.,
second-hand cigarette smoke) at their workplace. The government filed a motion to
dismiss the complaint under Rule 12(b)(1) (lack of subject matter jurisdiction) and Rule
12(b)(6) (failure to state a claim) of the Rules of the United States Court of Federal
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Claims (“RCFC”).1 After the parties briefed the alternative bases for the government’s
motion for dismissal, the Court of Federal Claims dismissed the complaint for lack of
subject matter jurisdiction under RCFC 12(b)(1). Adair, 70 Fed. Cl. at 80. This timely
appeal followed. After oral argument, we sought and received from the parties
supplemental briefing. We have jurisdiction under 28 U.S.C. § 1295(a)(3) to review the
trial court’s decision and hence what we consider to be the crux of this case, namely
whether ETS is covered by the statutes at issue as interpreted in the regulations
implemented by the Office of Personnel Management (“OPM”).
II. DISCUSSION
We review de novo the Court of Federal Claims’ dismissal of a claim for lack of
jurisdiction. First Hartford Corp. Pension Plan & Trust v. United States, 194 F.3d 1279,
1286-87 (Fed. Cir. 1999). We also review without deference the Court of Federal
Claims’ interpretation of statutes, W. Co. of N. Am. v. United States, 323 F.3d 1024,
1029 (Fed. Cir. 2003), and its RCFC 12(b)(6) analysis, viewing the facts alleged as true,
Samish Indian Nation v. United States, 419 F.3d 1355, 1363-64 (Fed. Cir. 2005).
A. Jurisdiction
The Tucker Act confers jurisdiction upon the Court of Federal Claims for claims
against the United States for money damages “founded either upon the Constitution, or
any Act of Congress or any regulation of an executive department, or upon any express
or implied contract with the United States, or for liquidated or unliquidated damages in
cases not sounding in tort” and waives the government’s sovereign immunity for these
claims. 28 U.S.C. §1491; United States v. Mitchell, 463 U.S. 206, 212 (1983) (Mitchell
1 RCFC 12(b)(1) and 12(b)(6) closely parallel Rules 12(b)(1) and 12(b)(6) of
the Federal Rules of Civil Procedure.
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II). Thus, the Tucker Act does not create any substantive right enforceable against the
United States for money damages, but merely confers jurisdiction when such a right is
conferred elsewhere. United States v. White Mountain Apache Tribe, 537 U.S. 465,
472 (2003). When the source of such alleged right is a statute, it can only support
jurisdiction if it qualifies, as most statutes do not, as money-mandating. White
Mountain, 537 U.S. at 473.
In Mitchell II, 463 U.S. at 217 (quoting United States v. Testan, 424 U.S. 392,
400 (1976)), the Supreme Court held that a statute is money-mandating only if it “‘can
fairly be interpreted as mandating compensation by the Federal Government for the
damage sustained.’” The Mitchell II “fair interpretation” rule is satisfied when the statute
is “reasonably amenable to the reading” that it is money-mandating. White Mountain,
537 U.S. at 473. Thus, Tucker Act jurisdiction requires merely that the statute be “fairly
interpreted” or “reasonably amendable” to the interpretation that it “mandates a right of
recovery in damages,” White Mountain, 537 U.S. at 472-73, not that a plaintiff-appellant
has stated a “proper claim” based on the statute or pled it properly. White Mountain
Apache Tribe v. United States, 249 F.3d 1364, 1383 (Fed. Cir. 2001) (internal citation
omitted), aff’d White Mountain, 537 U.S. at 468. Indeed, the two inquiries are separate.
See Greenlee County, Arizona v. United States, 487 F.3d 871 (Fed. Cir. 2007)
(considering the jurisdictional inquiry to be separate from the failure to state a claim
inquiry).
The trial court concluded that it lacked jurisdiction over Adair’s complaint
because 5 U.S.C. §§ 5545(d) and 5343(c)(4) are not money-mandating as applied to
Adair. Adair, 70 Fed. Cl. at 69. It viewed Fisher v. United States, 402 F.3d 1167 (Fed.
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Cir. 2005) (en banc in relevant part and interpreting White Mountain) (Fisher II), as
holding that the Tucker Act jurisdictional test is a “one-step process in which the source
alleged as money-mandating would be evaluated against plaintiffs’ claims to determine
whether the source was money-mandating as to the facts alleged.” Adair, 70 Fed. Cl. at
68 (emphasis added). This is not a correct reading of Fisher II.
Fisher II held that a single determination controls whether the plaintiff has
identified a money-mandating source for purposes of Tucker Act jurisdiction and
whether the statute on its merits provides a money-mandating remedy on which the
plaintiff can base a cause of action but made clear that the question of whether the
plaintiff has alleged facts sufficient to make out a cause of action is a separate inquiry.
Fisher II, 402 F.3d at 1173 (“The single step would be one in which the trial court
determines both the question of whether the statute provides the predicate for its
jurisdiction, and lays to rest for purposes of the case before it the question of whether
the statute on its merits provides a money-mandating remedy.”) (emphasis added).
“[T]he determination that the source is money-mandating shall be determinative both as
to the question of the court’s jurisdiction and thereafter as to the question of whether, on
the merits, plaintiff has a money-mandating source on which to base his cause of
action.” Id. (emphasis added); see also Greenlee, 487 F.3d at 876 (discussing the three
different inquiries addressed in Fisher II).
If a trial court concludes that the particular statute simply is not money-
mandating, then the court shall dismiss the claim for lack of subject matter jurisdiction
under Rule 12(b)(1). Fisher II, 402 F.3d at 1173. If, however, the court concludes that
the facts as pled do not fit within the scope of a statute that is money-mandating, the
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court shall dismiss the claim on the merits under Rule 12(b)(6) for failing to state a claim
upon which relief can be granted. Id. at 1175-76 (non en banc portion).
Here, the Court of Federal Claims dismissed Adair’s complaint for lack of subject
matter jurisdiction, after holding that ETS did not fall within the scope of 5 U.S.C.
§§ 5545(d) and 5343(c)(4) or their corresponding regulations. We disagree. The Court
of Federal Claims correctly determined that the statutes in question are money-
mandating. Even the government conceded there as here that the statutes are money-
mandating, albeit not as applied to Adair so as to create an entitlement to damages.
The Court of Federal Claims’ determination that the statutes are money-mandating
defeats the jurisdictional challenge and compels our conclusion that the trial court does
have jurisdiction over the Adair cause of action as pled.
That the Court of Federal Claims based its dismissal on lack of subject matter
jurisdiction, however, is not fatal to the judgment of dismissal. See Brodowy v. United
States, 482 F.3d 1370, 1376 (Fed. Cir. 2007) (declining to remand case to lower court
to alter a judgment despite the fact that the court had dismissed the case for want of
Tucker Act jurisdiction instead of for failure to state a claim because there were no
practical differences between the two forms of dismissal under the facts of that case);
Doe v. United States, 463 F.3d 1314, 1325 (Fed. Cir. 2006) (dismissal of claim for want
of jurisdiction instead of on the merits is harmless error); Lewis v. United States, 70 F.3d
597, 604 (Fed. Cir. 1995) (treating a dismissal of a complaint for want of jurisdiction
under the Tucker Act as a dismissal on the merits). Preceding its determination that it
lacked subject matter jurisdiction, the Court of Federal Claims embarked upon statutory
construction and an analysis of the implementing regulations. We address the
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correctness of the construction of the statute and regulations to determine whether it
supports a dismissal of the Adair complaint under RCFC 12(b)(6).
B. Interpretation of the two Statutes and their Implementing Regulations
When we review a challenge to an agency’s interpretation of a statute it has been
charged with administering, this court engages in the familiar Chevron two-step
analysis. Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43
(1984). Employing traditional tools of statutory construction, which include examining
the language of the statute and legislative history, we first determine “whether Congress
has directly spoken to the precise question at issue.” Id. at 842; see also Delverde,
SRL v. United States, 202 F.3d 1360, 1363 (Fed. Cir. 2000). If we conclude that
Congress expressed a clear and unambiguous intent on the issue, “that intention is the
law and must be given effect,” Chevron, 467 U.S. at 843 n.9, and the only issue left for
us to address is whether the agency’s action or interpretation contravenes that intent,
Delverde, 202 F.3d at 1363. If, however, we determine that Congress was silent,
ambiguous, or unclear on the precise question at issue, we advance to the second step
of Chevron where we determine whether the agency’s interpretation is based on a
permissible construction of the statute. 467 U.S. at 843. As long as the agency’s
construction is reasonable, we defer to that construction even if we do not believe it to
be the best statutory interpretation. See Nat’l Cable & Telecomms. Ass’n v. Brand X
Internet Servs., 545 U.S. 967, 980 (2005).
Adair alleges that their exposure to ETS falls within the scope of the two statutes
and their respective implementing regulations. First Am. Compl. at ¶¶ 34-35. We
analyze the language of the statutes and regulations to ascertain whether they have
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plain and ordinary meaning with respect to the coverage of ETS as a hardship or
hazard. See Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002); see also Tesoro
Haw. Corp. v. United States, 405 F.3d 1339, 1346 (Fed. Cir. 2005) (“We construe a
regulation in the same manner as we construe a statute, by ascertaining its plain
meaning.”).
The government contends that we should accord Seminole Rock deference to
OPM’s interpretation of its corresponding regulations, even though the interpretation is
advanced for the first time during appeal, found solely in the government’s brief (signed
only by Justice Department attorneys), and not signed by any OPM official, much less
one at the policy level, nor, as far as is revealed, circulated through OPM. See Bowles
v. Seminole Rock, 325 U.S. 410, 413-14 (1945); see also Gose v. U.S. Postal Serv.,
451 F.3d 831, 836 (Fed. Cir. 2006). In fact, only the listing of an OPM attorney as of
counsel on the brief reflects any OPM involvement at all. We decline to do so, for there
is “reason to suspect that the interpretation does not reflect the agency’s fair and
considered judgment” on the issue. Auer v. Robbins, 519 U.S. 452, 462 (1997); see
also Long Island Care at Home, Ltd. v. Coke, 127 S. Ct. 2339, 2349 (2007). Instead,
we interpret the regulations without according deference to the government’s litigating
position. With respect to the issue of statutory construction, we apply the familiar
Chevron framework to the “precise question at issue,” namely whether Adair qualifies
for enhanced compensation because of their exposure to ETS.
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1. 5 U.S.C. § 5545(d)
Section 5545(d) provides in pertinent part:
The Office shall establish a schedule or schedules of pay differentials for
duty involving unusual physical hardship or hazard, and for any hardship
or hazard related to asbestos, such differentials shall be determined by
applying occupational safety and health standards consistent with the
permissible exposure limit promulgated by the Secretary of Labor under
the Occupational Safety and Health Act of 1970. Under such regulations
as the Office may prescribe, and for such minimum periods as it
determines appropriate, an employee to whom chapter 51 and subchapter
III of chapter 53 of this title applies is entitled to be paid the appropriate
differential for any period in which he is subjected to physical hardship or
hazard not usually involved in carrying out the duties of his position.
However, the pay differential--
(1) does not apply to an employee in a position the classification of which
takes into account the degree of physical hardship or hazard involved in
the performance of the duties thereof, except in such circumstances as
the Office may by regulation prescribe; and
(2) may not exceed an amount equal to 25 percent of the rate of basic pay
applicable to the employee.
5 U.S.C. § 5545(d) (emphases added). Clearly, the statute does not cover all physical
hardships or hazards, but only those that are “unusual.”2 Adair alleges that the FCI
Jesup employees worked in areas (e.g., enclosed areas) where inmates were permitted
to smoke.3 First Am. Compl. at ¶¶ 12, 15. This suggests that ETS was an expected
condition of employment “usually involved in carrying out the duties” of Adair’s position,
especially when those duties involved the caretaking or monitoring of inmates.
Additionally, ETS, as part of the ambient air, was commonly encountered indoors and
2 As the statute does not define “unusual,” we apply its ordinary meaning. It
is clear from a plain reading of the statute that “unusual physical hardship or hazard”
include those “not usually involved in carrying out the duties” of an employee’s position.
5 U.S.C. § 5545(d).
3 We observe that the Warden at FCI Jesup later issued a Memorandum to
ban the purchase of tobacco products as of December 2005 and smoking by inmates as
of April 2006 to effectuate a clean air environment, although our analysis of the statutes
and regulations is not affected by these actions.
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outdoors where people worked or played in the 1960s when the statute was enacted.
Thus, contrary to Adair’s assertion, the plain language of § 5545(d) does not compel, or
even support, a conclusion that ETS is “unusual” within the meaning of the statute.
Nor does the legislative history support Adair’s reading of the statute. The
Classification Act of 1949 was amended on July 19, 1966, to add § 5545(d) authorizing
hazardous duty payment in certain circumstances. See Pub. L. No. 89-512, 80 Stat.
318 (1966). Prior to enactment, separate hazardous duty pay was available for wage
board employees, certain military personnel, and public health service employees but
not for Classification Act employees, even those who labored beside these individuals,
doing the same work. Therefore, the purpose of the amendment was to remove the
inequality of Classification Act employees. See Hearing on H.R. 2079 and H.R. 5444
Before the H. Comm. on Post Office and Civil Service, 87th Cong. 5 (2nd Sess. 1962)
(testimony of Rep. George Wallhauser); Hazardous Duty Pay: House Report No. 31,
89th Cong. (1st Sess. 1965). As John W. Macy, Jr., Chairman of the U.S. Civil Service
Commission, observed:
We believe that unusual physical hardships or hazards which are inherent
in a position, which regularly recurs, and which is performed for a
substantial part of the working time, are best compensated for through the
regular position classification process. However, there does not now exist
a means for providing such compensation where regularly assigned duties
are performed under unusually hazardous conditions at such irregular or
intermittent intervals that these conditions cannot be taken into
consideration for position classification purposes. Yet it seems logical that
the Government offer some additional remuneration to the employee
asked to take unusual risks not normally associated with his occupation
and for which added compensation is not otherwise provided . . . .
We would visualize assignments such as those requiring irregular or
intermittent participation in hurricane weather flights, participation in test
flights of aircraft during their developmental period or after modification,
participation in trial runs of newly built submarines or in submerged
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voyages of an exploratory nature such as those under the Polar ice fields,
and performance of work at extreme heights under adverse conditions, as
among those meeting the criteria of unusual physical hardships or hazard.
We recognize that in most regularly recurring hazardous work situations
safety training and precautions have been developed which so greatly
reduce the possibility of accident that the degree of hazard becomes
negligible. The examples cited above, however, go beyond such
conditions. They take into consideration, for example, such matters as the
need to deliberately operate equipment such as newly developed or
modified aircraft beyond its known design capabilities or safe operating
limits, and exposure to elements or conditions over which little or no
control can be exercised. Normally, few accidents occur in these
hazardous situations; nevertheless, such assignments always are
accompanied by the undeniable awareness of the inherent danger of the
activity and the knowledge that an accident, should it occur, would almost
certainly be fatal.
Hazardous Duty Pay: House Report No. 31, 89th Cong. (1st Sess. 1965). Thus,
Congress intended the statute to cover assignments that were inherently dangerous
because they posed a risk of accident. An FCI employee’s exposure to an inmate’s
cigarette smoke, unlike assignments at extreme heights, however, does not pose a risk
of accident.
Congress, moreover, could not have intended to have included ETS as an
unusual risk or hazardous work situation because at the time the statute was enacted,
Congress was unaware of the dangers of ETS. Yet Congress left open the possibility
that ETS could be covered by the statute by delegating to OPM the authority to
establish “pay differentials for duty involving unusual physical hardship or hazard.” 5
U.S.C. § 5545(d) (emphases added). Arguably, OPM may have the authority to
mandate payment for hazards that were not unusual at the time the statute was
enacted. In any event, OPM has not done so, as discussed below. See infra, Pt. II.B.2.
Therefore, we do not decide any such issue today.
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We note, too, Congress’ amendment of the statute in 2003 to cover an
employee’s exposure to asbestos, which Adair contends is comparable to ETS. See
National Defense Authorization Act for Fiscal Year 2004, P.L. 108-136, § 1122 (2003).
Even then, Congress did not mandate additional compensation for all levels of exposure
to asbestos, only for those levels that were above the threshold set by the Occupational
Safety and Health Act (“OSHA”).4 However, in the 2003 Amendment, Congress did not
mandate additional compensation for ETS.
Adair contends that exposure to ETS is unusual as a matter of law given
society’s current attitude towards ETS. Appellant Suppl. Br. at 4. What is relevant,
however, is not society’s current attitude or even this court’s attitude about ETS but
Congress’ view of ETS and OPM’s actions regarding ETS. Although Congress knew
about the dangers of ETS in 2003, it failed to add ETS as a separate compensable
category under § 5545(d). Under the familiar canon of expressio unius est exclusio
alterius, we conclude that Congress did not intend to include coverage of ETS, unless
perhaps OPM later established a regulation providing for enhanced compensation. See
Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc). From reading the
statute and legislative history, it is unclear whether Congress intended to cover ETS,
especially since ETS was not a known hazard then. Possibly, OPM has the power to
provide for enhanced compensation for ETS, but we need not decide this question
because OPM never did so. Our analysis therefore progresses to step two of the
Chevron framework (i.e., an analysis of OPM’s regulations).
4 The current threshold or permissible exposure limit is 0.1 fiber per cubic
centimeter of air as an eight (8)-hour time-weighted average. See 29 C.F.R.
§ 1910.1001(c). We observe that even OSHA does not provide for coverage of ETS.
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2. The Implementing Regulations for 5 U.S.C. § 5545(d)
Because Congress explicitly authorized OPM to establish regulations for
payment of differentials under § 5545(d), OPM might be able to extend payment
differentials to physical hardships or hazards that were not “unusual” at the time the
statute was enacted but have since become unusual. See Chevron, 467 U.S. at 843-44
(stating that where “Congress has explicitly left a gap for the agency to fill, there is an
express delegation of authority to the agency to elucidate a specific provision of the
statute by regulation.”). We conclude, however, that OPM has not done so with respect
to ETS.
Section 550.902 of 5 C.F.R. provides the following pertinent definitions:
Duty involving physical hardship means duty that may not in itself be
hazardous, but causes extreme physical discomfort or distress and is not
adequately alleviated by protective or mechanical devices, such as duty
involving exposure to extreme temperatures for a long period of time,
arduous physical exertion, or exposure to fumes, dust, or noise that
causes nausea, skin, eye, ear, or nose irritation.
Hazardous duty means duty performed under circumstances in which an
accident could result in serious injury or death, such as duty performed on
a high structure where protective facilities are not used or on an open
structure where adverse conditions such as darkness, lightning, steady
rain, or high wind velocity exist.
5 C.F.R. § 550.902 (emphases added). Because these definitions are not inconsistent
with the plain meaning of the statute, even viewed in light of its legislative history, we
accord them deference. Delverde, 202 F.3d at 1363; see also Chevron, 467 U.S. at
844. Environmental tobacco smoke does not fall within these definitions because it can
be adequately alleviated by protective or mechanic devices, such as ventilation systems
(under the definition of “duty involving physical hardship”) and because it does not
constitute an “accident” (under the definition of “hazardous duty”).
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Section 550.904 of 5 C.F.R, to which we also accord Chevron deference
because it is a permissible construction of the statute, authorizes OPM to pay the
hazard pay differential for job duties listed in Appendix A.5 In Appendix A of 5 C.F.R Pt.
550, Subpt. I, which is not unduly restrictive in view of the statute, there is no separate
category for ETS.6 Adair, however, argues that ETS is a toxic chemical under Appendix
A. We disagree. Although the government concedes that ETS contains toxic
chemicals, the toxic chemicals contemplated in Appendix A are those that have a
“possibility of leakage or spillage” (e.g., as from a container). In contrast, ETS is an
automatic byproduct of cigarette burning–it does not have a possibility of leaking or
spilling from cigarettes. We conclude that ETS does not fall within the regulatory
description of toxic chemicals covered by 5 C.F.R Pt. 550, Subpt. I, App. A.
3. 5 U.S.C. § 5343(c)(4)
5 U.S.C. 5343(c)(4) provides in relevant part:
The Office of Personnel Management, by regulation, shall prescribe
practices and procedures for conducting wage surveys, analyzing wage
survey data, developing and establishing wage schedules and rates, and
administering the prevailing rate system. The regulations shall provide . . .
(4) for proper differentials, as determined by the Office, for duty involving
unusually severe working conditions or unusually severe hazards, and for
any hardship or hazard related to asbestos, such differentials shall be
determined by applying occupational safety and health standards
consistent with the permissible exposure limit promulgated by the
Secretary of Labor under the Occupational Safety and Health Act of 1970.
5 Section 550.904 states in relevant part: “An agency shall pay the hazard
pay differential listed in appendix A of this subpart to an employee who is assigned to
and performs any duty specified in appendix A of this subpart.” 5 C.F.R. § 550.904.
6 Appendix A provides pay differentials for duties that involve, inter
alia, “Exposure to Hazardous Agents, work with or in close proximity to: . . . Toxic
chemical materials. Toxic chemical materials when there is there is a possibility of
leakage or spillage.” 5 C.F.R Pt. 550, Subpt. I, App. A (emphasis added).
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5 U.S.C. § 5343(c)(4) (emphases added). For reasons similar to those that support our
conclusion that ETS is not “unusual” under § 5545(d), we conclude that Adair’s
argument that ETS is an unusually severe working condition or an unusually severe
hazard under § 5343(c)(4) has no merit. In fact, at the time § 5343(c)(4) was enacted in
1972, P.L. 92-392, 86 Stat. 564 (1972), ETS was not considered “unusually severe.”
Our conclusion, however, does not rest solely on the statute. Because Congress may
have left open the door for OPM to establish enhanced compensation for hazards and
working conditions that were not “unusually severe” at the time the statute was enacted,
the Congressional intent respecting ETS coverage is unclear. See infra, Pt. II.B.1.
4. The Implementing Regulation for 5 U.S.C. § 5343(c)(4)
In response to § 5343(c)(4), OPM promulgated 5 C.F.R. § 532.511, which
authorizes the payment of environmental differentials when an employee is exposed to
a working condition or hazard covered by one of the categories approved by OPM.
The categories justifying environmental differentials are set forth in Appendix A of 5
C.F.R. Part 532, Subpt. E, which lists the pay differentials authorized for exposure to
various degrees of hazards, physical hardships, and working conditions of an unusual
nature. ETS is not listed as a separate compensable category in this appendix.
Two categories, however, are argued in this appeal: 1) Poisons (toxic
chemicals)–high degree hazard (for which a 8% pay differential is available) and 2)
Poisons (toxic chemicals)–low egress hazard (for which a 4% pay differential is
available), both of which became effective on Nov. 1, 1970 . Exposure to toxic
chemicals that represent high degree hazards includes
[w]orking with or in close proximity to poisons (toxic chemicals), other than
tear gas or similar irritants, which involves potential serious personal injury
2006-5077 16

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such as permanent or temporary, partial or complete loss of faculties
and/or loss of life including exposure of an unusual degree to toxic
chemicals, dust, or fumes of equal toxicity generated in work situations by
processes required to perform work assignments wherein protective
devices and/or safety measures have been developed but have not
practically eliminated the potential for such personal injury,
whereas exposure to low degree toxic chemicals includes
[w]orking with or in close proximity to poisons (toxic chemicals other than
tear gas or similar irritating substances) in situations for which the nature
of the work does not require the individual to be in as direct contact with,
or exposure to, the more toxic agents as in the case with the work
described under high hazard for this class of hazardous agents and
wherein protective devices and/or safety measures have not practically
eliminated the potential for personal injury.7
5 C.F.R. Pt. 532, Subpt. E, App. A (emphases added). Thus, one key difference
between the two hazard categories is that the employee in the low degree category can
be many degrees removed from the toxic agent. Because the regulation is a
reasonable interpretation of the operative language of the statute and does not run afoul
of the legislative history,8 we accord it Chevron deference.
Contrary to Adair’s argument, ETS does not fall under either hazard category.
First, ETS is the result of recreational activity, not a substance “generated . . . by
processes required to perform work assignments.” Nor is it clear that ETS would not be
excluded as a mere irritant similar to tear gas. Significantly, ETS does not share any
commonality with the examples of either high or low degree hazards provided in the
regulations:
7 This category of low degree hazard was implemented in 1977.
8 We note that the 2003 amendment that similarly added asbestos as a
compensable category to § 5343(c)(4), did not include ETS as a separate compensable
category.
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Examples of high degree hazards
Handling and storing toxic chemical agents including monitoring of areas
to detect presence of vapor or liquid chemical agents; examining of
material for signs of leakage or deteriorated material; decontaminating
equipment and work sites; work relating to disposal of deteriorated
material (exposure to conjunctivitis, pulmonary edema, blood infection,
impairment of the nervous system, possible death)
Renovation, maintenance, and modification of toxic chemicals, guided
missiles, and selected munitions
Operating various types of chemical engineering equipment in a restricted
area such as reactors, filters, stripping units, fractioning columns,
blenders, mixers, pumps, and the like utilized in the development,
manufacturing, and processing of toxic or experimental chemical warfare
agents
Demilitarizing and neutralizing toxic chemical munitions and chemical
agents
Handling or working with toxic chemicals in restricted areas during
production operations
Preparing analytical reagents, carrying out colorimetric and photometric
techniques, injecting laboratory animals with compounds having toxic,
incapacitating or other effects
Recording analytical and biological tests results where subject to above
types of exposure
Visually examining chemical agents to determine conditions or detect
leaks in storage containers
Transferring chemical agents between containers
Salvaging and disposing of chemical agents
Example of low degree hazard
Handling for shipping, marking, labeling, hauling and storing loaded
containers of toxic chemical agents that have been monitored.
5 C.F.R. Part 532, Subpt. E, App. A. Although the examples are not exhaustive, they all
describe scenarios where the job assignment requires directly or indirectly working with
toxic chemicals or containers that hold toxic chemicals as part of a job assignment via
2006-5077 18

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e.g., marking, storing, neutralizing, operating, preparing, analyzing, transferring,
disposing, or otherwise handling toxic chemicals. The examples do not cover situations
in which the employees work with inmates who incidentally smoke, for there is no work
“with” ETS in this context.
The examples also do not illustrate situations in which known hazards, such as
ETS, are common or ubiquitous in the ambient work environment. If OPM had
amended its regulation, the FCI Jessup employees’ exposure to ETS might have
qualified them for enhanced pay. But that is a question we do not answer today, for
OPM did not do so. We therefore conclude that ETS does not fall within the scope of
the implementing regulations for § 5343(c)(4).
Therefore, the Court of Federal Claims’ dismissal of Adair’s complaint could and
should have been based on Adair’s failure to state a claim under §§ 5545(d) and
5343(c)(4) and the corresponding regulations. We have considered Adair’s other
arguments and conclude that they are either unpersuasive or their review is
unnecessary for the disposition of this appeal.
III. CONCLUSION
Although the Court of Federal Claims erred in ruling that it lacked subject
jurisdiction over Adair’s back pay claim for enhanced compensation under §§ 5545(d)
and 5343(c)(4) and the implementing regulations, the error was harmless because the
complaint could have been dismissed on the merits. A plain reading of the statutes, in
conjunction with the legislative history and particularly the regulations implementing the
statutes, compels our conclusion that ETS does not fall within the scope of the
implementing regulations for either statute. Should the issue become material at a
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2006-5077 20
future proceeding, the dismissal by the trial court should be treated as one on the
merits, rather than on jurisdictional grounds.
AFFIRMED
COSTS
No costs.

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Frank E. Adair, Cynthia A. Adams, Joseph Aldridge, Emory T. Allen, Jodee B.… v. United States

Gesamter Gesetzestext

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