Cody L. Adams, Rose M. Adamson, Joseph P. Agius, Dara W. Allick, Jennifer A. Angel,… v. United States

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, Wash-
ington, DC, argued for plaintiffs-appellants. Also repre-
sented by G REGORY K. MCG ILLIVARY , THEODORE REID
COPLOFF .
ERIC L AUFGRABEN, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for defendant-appellee. Also repre-
sented by BRIAN M. B OYNTON, ERIC P. BRUSKIN, ALBERT S.
Case: 21-1662 Document: 40 Page: 1 Filed: 06/27/2022

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ADAMS v. US 2
I AROSSI, P ATRICIA M. MCCARTHY , CATHARINE P ARNELL ,
L IRIDONA SINANI; A DAM G ARRET EISENSTEIN, D OUGLAS
SETH G OLDRING, Office of General Counsel, Federal Bu-
reau of Prisons, United States Department of Justice,
Washington, DC.
P ER CURIAM .
O R D E R
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,
I T I S O RDERED T HAT :
(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 under-
stood in the context of establishing “pay dif-
ferentials” 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?
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ADAMS v. US 3
C. If we hold that the HDP Schedule and 5
C.F.R. Pt. 532, Subpt. E, Appx. A (EDP Sched-
ule) are not limited to laboratory-specific du-
ties, what limits, if any, are there to the
“work[] with or in close proximity to” lan-
guage 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 distin-
guishing between high- and low-degree haz-
ards? 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 re-
lief that satisfies the “short and plain state-
ment” 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 ami-
cus brief supporting the Appellee’s position must be filed
within 14 days after service of the Appellee’s en banc re-
sponse brief. Amicus briefs must comply with Fed. Cir. R.
29(b).
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ADAMS v. US 4
(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.
June 27, 2022
Date
F OR THE COURT
/s/ Peter R. Marksteiner
Peter R. Marksteiner
Clerk of Court
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