Adams v. United States ( 2021 )

In the United States Court of Federal Claims
No. 20-783C
(Filed: February 5, 2021)
___________________________________
) Claim by prison guards and food
CODY L. ADAMS, et al., ) workers for hazardous duty pay or
) environmental differential pay; 5
Plaintiffs, ) U.S.C. §§ 5545(d), 5343(c)(4);
) work with, and in close proximity
v. ) to, persons infected with COVID-
) 19 virus
UNITED STATES, )
)
Defendant. )
___________________________________ )
Theodore R. Coploff, McGillivary Steele Elkin LLP, Washington, D.C., for plaintiffs.
Eric E. Laufgraben, Senior Trial Counsel, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With him on the briefs
were Jeffrey Bossert Clark, Acting Assistant Attorney General, Robert E. Kirschman, Jr.,
Director, Allison Kidd-Miller, Assistant Director, and Liridona Sinani, Trial Attorney,
Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington,
D.C., as well as Marie C. Clarke, Douglas S. Goldring, and Kathleen Haley Harne, Office of
General Counsel, Federal Bureau of Prisons, United States Department of Justice, Washington,
D.C.
OPINION AND ORDER
LETTOW, Senior Judge.
Plaintiffs, current and former employees of the Federal Bureau of Prisons, Federal
Correctional Institution in Danbury, Connecticut (“FCI Danbury”) have sued the United States,
seeking a declaratory judgment, hazardous duty pay, environmental differential pay, overtime
pay, interest, and attorneys’ fees and costs. See Compl. at 16-22, ECF No. 1. The current and
former employees assert that they are entitled under federal law to additional pay due to their
“work with or in close proximity to objects, surfaces, and/or individuals infected with” the novel
coronavirus.1 Compl. ¶¶ 25, 30. Defendant has moved to dismiss the complaint pursuant to
The novel coronavirus, or SARS-CoV-2, causes the disease known as COVID-19. See
1
Vivien Williams, How the Virus that Causes COVID-19 Differs from Other Coronaviruses,
MAYO CLINIC NEWS NETWORK (Mar. 30, 2020), https://newsnetwork.mayoclinic.org/discussion/
how-the-virus-that-causes-covid-19-differs-from-other-coronaviruses/. While the terms for the
Rule 12(b)(6) of the Rules of the United States Court of Federal Claims (“RCFC”). See Def.’s
Mot. to Dismiss or, in the Alternative, for a More Definite Statement (“Def.’s Mot.”), ECF No.
9. After briefing, see Pls.’ Resp. to Def.’s Mot. (“Pls.’ Resp.”), ECF No. 10; Def.’s Reply to
Pls.’ Resp. (“Def.’s Reply”), ECF No. 13, the court held a hearing on December 22, 2020. The
motion is ready for disposition.
The court concludes that, in light of binding precedent, plaintiffs’ alleged exposure to the
novel coronavirus does not entitle them to compensation pursuant to 5 U.S.C. §§ 5545(d) or
5343(c)(4). Given that plaintiffs’ claim for overtime pay under the Fair Labor Standards Act
(“FLSA”) is derivative of their claims for hazardous duty pay and environmental differential pay,
this claim must also be dismissed. Because plaintiffs have failed to state a claim upon which
relief may be granted, the government’s motion to dismiss is GRANTED and plaintiffs’
complaint is DISMISSED.
BACKGROUND 2
The novel coronavirus was first identified in 2019 “as the cause of a disease outbreak that
originated in China.” Coronavirus Disease 2019 (COVID-19), MAYO CLINIC (Dec. 22, 2020),
https://www.mayoclinic.org/diseases-conditions/coronavirus/symptoms-causes/syc-20479963.
COVID-19, a contagious respiratory illness caused by the virus, can result in symptoms ranging
from mild to severe. See Symptoms of Coronavirus, CENTERS FOR DISEASE CONTROL &
PREVENTION (Dec. 22, 2020), https://www.cdc.gov/coronavirus/2019-ncov/symptoms-
testing/symptoms.html. On March 11, 2020, the World Health Organization declared the
coronavirus outbreak a pandemic.3 The United States continues to struggle with preventing the
spread of the virus as states report new infections and deaths every day. See generally
Coronavirus Resource Center, JOHNS HOPKINS UNIVERSITY & MEDICINE,
https://coronavirus.jhu.edu/map.html (last visited Feb. 4, 2021).
The virus “can [be] spread by a person being exposed to small droplets or aerosols that
stay in the air for several minutes or hours.” Coronavirus Disease 2019 (COVID-19), MAYO
CLINIC (Dec. 22, 2020), https://www.mayoclinic.org/diseases-conditions/coronavirus/symptoms-
causes/syc-20479963. Infection can also result when “a person touches a surface or object with
the virus on it and then touches his or her mouth, nose or eyes, although this isn’t considered to
be a main way it spreads.” Id. These characteristics enable the virus to spread rapidly in
virus and the disease are often conflated, the novel coronavirus itself is the “virulent biological[]”
or “hazardous micro-organism[]” relevant to plaintiffs’ claims. Compl. ¶ 28.
2
The recitations that follow do not constitute findings of fact, but rather are recitals
attendant to the pending motions and reflect matters drawn from the complaint, the parties’ briefs
and records, and documents appended to the complaint and briefs.
See WHO Director-General’s opening remarks at the media briefing on COVID-19,
3
WORLD HEALTH ORGANIZATION (Mar. 11, 2020), https://www.who.int/director-general/
speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---
11-march-2020.
2
confined spaces, leaving prison populations and staff susceptible to infection. As of February
2021, 2,164 federal inmates and 1,745 staff members of the Bureau of Prisons currently “have
confirmed positive test results for COVID-19 nationwide,” while more previously have had the
virus or tested positive for the disease, and have recovered. COVID-19 Update, FEDERAL
BUREAU OF PRISONS (Feb. 4, 2021), https://www.bop.gov/coronavirus/. The deaths of 216
federal inmates and 3 staff members have been attributed to the disease. Id.FCI Danbury, which houses over 650 inmates, is a low security federal correctional
institution. Compl. ¶¶ 7, 11. The plaintiffs employed at FCI Danbury include a correctional
officer, a cook supervisor, and other “current or former correctional worker[s] employed by the
United States Department of Justice, Bureau of Prisons, at FCI Danbury.” Compl. ¶¶ 3-7.
According to the complaint, over 100 employees and inmates of FCI Danbury have tested
positive for COVID-19. Compl. ¶ 17. Plaintiffs filed suit in this court on June 26, 2020, seeking
“a declaratory judgment, damages and other relief” pursuant to federal statutes. Compl. ¶ 1.
These current and former employees are either general schedule salaried employees eligible for
hazardous duty pay pursuant to 5 U.S.C. § 5545(d), or waged employees eligible for
environmental differential pay pursuant to 5 U.S.C. § 5343(c)(4). See Compl. ¶¶ 33, 43; see also
Adams v. United States, ___ Fed. Cl. ___, ___, 2020 WL 7334354, at *2 (Dec. 14, 2020)
(hereinafter “Charles Adams”) (“[H]azardous duty pay is available to general schedule salaried
employees, while environmental differential pay is available to waged employees.”). Plaintiffs
allege that they are entitled to differential pay due to their “work in or in close proximity to
objects, surfaces, and/or individuals infected with” the novel coronavirus. Compl. ¶¶ 36-38, 48-
51.
STANDARDS FOR DECISION
Under RCFC 12(b)(6), a complaint will survive a motion to dismiss if it “contain[s]
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556). The factual matters alleged “must be enough to
raise a right to relief above the speculative level on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555-56 (citations omitted).
When reviewing the complaint, “the court must accept as true the complaint’s undisputed
factual allegations and should construe them in a light most favorable to the plaintiff.”
Cambridge v. United States, 558 F.3d 1331, 1335 (Fed. Cir. 2009) (citing Papasan v. Allain, 478
U.S. 265, 283 (1986)) (additional citation omitted). Conclusory statements of law and fact,
however, “are not entitled to the assumption of truth” and “must be supported by factual
allegations.” Iqbal, 556 U.S. at 679. “‘[N]aked assertion[s]’ devoid of ‘further factual
enhancement’” are insufficient to state a claim. Id. at 678 (quoting Twombly, 550 U.S. at 557);
accord Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998) (“Conclusory allegations
of law and unwarranted inferences of fact do not suffice to support a claim.”).
3
ANALYSIS
I. Hazardous Duty Pay Pursuant to 5 U.S.C. § 5545(d)
General schedule salaried federal employees qualify for hazardous duty pay when they
are assigned and perform a “duty involving unusual physical hardship or hazard,” unless their
employment classification “takes into account the degree of physical hardship or hazard involved
in the performance of [their] duties.” 5 U.S.C. § 5545(d). In this respect, the “physical hardship
or hazard” must be one that is “not usually involved in carrying out the duties of [the] position.”
Id. (emphasis added). Congress tasked the Office of Personnel Management (“OPM”) with
establishing schedules of pay differentials for hazardous duty pay, see id., as well as prescribing
regulations necessary for the administration of the statute, 5 U.S.C. § 5548(d). OPM has defined
“[d]uty involving physical hardship” as “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 . . . exposure to fumes, dust, or noise that causes nausea, skin, eye,
ear, or nose irritation.” 5 C.F.R. § 550.902. OPM further defined “[h]azardous duty” as “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 . . . .” Id.Under its Schedule of Pay Differentials Authorized for Hazardous Duty Pay, OPM set
forth numerous categories of duties involving physical hardship or hazard. 5 C.F.R. Part 550,
Subpart I, Appx. A. Among these categories is “work with or in close proximity to . . . [v]irulent
biologicals.” Id. Plaintiffs rely on this category in asserting their claim for hazardous duty pay.
See Compl. ¶¶ 32-38. OPM elaborates that the term “[v]irulent biologicals” refers to
“[m]aterials of micro-organic nature which when introduced into the body are likely to cause
serious disease or fatality and for which protective devices do not afford complete protection.” 5
C.F.R. Part 550, Subpart I, Appx. A. The Federal Personnel Manual provides examples of when
an employee works “with or in close proximity to . . . [v]irulent biologicals,” including
“[o]perating or maintaining equipment in biological experimentation or production[, c]leaning
and sterilization of vessels and equipment contaminated with virulent microorganisms,” and
“[c]aring for or handling disease-contaminated experimental animals in biological
experimentation and production in medical laboratories, the primary mission of which is research
and development not associated directly with patient care.” Federal Personnel Manual Supp.
990-2, § 550-E-4, 1973 WL 151518 (Feb. 28, 1973). 4
In sum, plaintiffs who are current or former general schedule salaried employees of FCI
Danbury must establish three elements in order to state a claim for hazardous duty pay: (1) the
employee was assigned to and performed work “with or in close proximity to” the novel
coronavirus, 5 C.F.R. Part 550, Subpart I, Appx. A; (2) the virus itself is a “[v]irulent
biological[],” id.; and (3) the employees’ job classifications do not take exposure to the virus into
4
While OPM retired the Federal Personnel Manual on December 31, 1993, the
publication “continues to be a valuable resource for construing regulations that were
promulgated or were in effect” prior to the date of retirement. Schmidt v. Department of Interior,
153 F.3d 1348, 1353 n.4 (Fed. Cir. 1998) (citing Markland v. Office of Pers. Mgmt., 140 F.3d
1031, 1034 (Fed. Cir. 1998)).
4
account, i.e., the employees’ exposure to the virus is an “unusual physical hardship or hazard,” 5
U.S.C. § 5545(d) (emphasis added); see also 5 C.F.R. § 550.904(a).5
In its motion to dismiss, the government avers that plaintiffs have failed to sufficiently
allege that they worked “with or in close proximity to” the novel coronavirus itself, only that
they have performed “work with or in close proximity to objects, surfaces, and/or individuals
infected with” the virus. Def.’s Mot. at 15 (quoting Compl. ¶¶ 25, 30) (emphasis removed).
Plaintiffs counter that the language used in their complaint does not distinguish their claims from
the regulation in any meaningful way. Pls.’ Resp. at 11.
The Federal Circuit addressed the scope of both 5 U.S.C. § 5545(d) and 5 C.F.R. §
550.902 in Adair v. United States, 497 F.3d 1244 (Fed. Cir. 2007). In Adair, prison guards
employed by the Federal Correctional Institution in Jesup, Georgia sought “enhanced back pay
for their exposure to inmates’ smoking . . . .” Adair, 497 F.3d at 1249. The Federal Circuit
affirmed the Court of Federal Claims’ dismissal of plaintiffs’ complaint under RCFC 12(b)(6),
emphasizing that 5 U.S.C. § 5545(d) “[c]learly . . . does not cover all physical hardships or
hazards, but only those that are ‘unusual.’” Id. at 1253 (footnote omitted). In concluding that
exposure to secondhand smoke was not an “unusual” hardship under the plain meaning of the
statute, the court contrasted the prison guards’ claim to examples of “unusual physical hardships
or hazards” provided by the Chairman of the U.S. Civil Service Commission:
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 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. . . .The examples cited above . . . 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.
Id. at 1254 (quoting Hazardous Duty Pay: House Report No. 31, 89th Cong. (1st Sess. 1965))
(emphasis added). While the cited examples were assignments requiring “irregular or
intermittent participation,” id., secondhand smoke at the prison “was commonly encountered
indoors and outdoors,” id. at 1253. The court also noted that “Congress . . . could not have
intended to have included [secondhand smoke] as an unusual risk or hazardous work situation
because at the time the statute was enacted, Congress was unaware of the dangers of” exposure
to secondhand smoke. Id. at 1254.
5
“As the statute does not define ‘unusual,’ [courts should] apply its ordinary meaning. It
is clear from a plain reading of the statute that [the term] ‘unusual physical hardship or hazard’
include[s] those ‘not usually involved in carrying out the duties’ of an employee’s position.”
Adair v. United States, 497 F.3d 1244, 1253 n.2 (Fed. Cir. 2007) (quoting 5 U.S.C. § 5545(d)).
5
In the present case, plaintiffs encounter an analogous obstacle in their workplace. While
secondhand smoke and the novel coronavirus pose distinct risks to human health, neither
qualifies as an “unusual” hardship under the plain meaning of 5 U.S.C. § 5545(d). The
employees’ potential exposure to the novel coronavirus is not the result of an “irregular or
intermittent” assignment, Adair, 497 F.3d at 1254 (citation omitted), but appears to stem from
their regular duties at FCI Danbury. Plaintiffs do not allege they have performed new duties
since the beginning of the pandemic, but that “[a]s a result of plaintiffs’ performance of their
official duties . . . [they] have been exposed” to the novel coronavirus. Compl. ¶ 28. Just as the
prison guards in Adair were exposed to secondhand smoke when their duties of employment
“involved the caretaking and monitoring of inmates,” plaintiffs here were and have been
allegedly exposed to the novel coronavirus in executing their official duties at FCI Danbury. See
Adair, 497 F.3d at 1253. “Congress, moreover, could not have intended to have included”
exposure to the novel coronavirus “as an unusual risk or hazardous work situation because at the
time the statute was enacted, Congress was unaware of the dangers of” the virus. Id. at 1254. In
light of binding precedent, therefore, exposure to the virus at FCI Danbury cannot be
characterized as an “unusual” hardship under 5 U.S.C. § 5545(d).
Congress “left open the possibility,” however, that exposure to the virus “could be
covered by the statute by delegating to OPM the authority to establish ‘pay differentials for duty
involving unusual physical hardship or hazard.’” Adair, 497 F.3d at 1254 (quoting 5 U.S.C. §
5545(d)) (emphasis removed). To date exposure to the novel coronavirus at FCI Danbury does
not qualify as either a “duty involving physical hardship” or a “hazardous duty” as defined by
OPM. While plaintiffs allege that they “have performed work in or in close proximity to objects,
surfaces, and/or individuals infected with” the novel coronavirus “without sufficient protective
devices,” Compl. ¶ 36, an allegation of insufficient protective equipment does not establish that
the hazard posed by the virus “is not adequately alleviated by protective or mechanical devices,”
Adair, 497 F.3d at 1255 (noting that secondhand smoke “can be adequately alleviated by
protective or mechanic[al] devices, such as ventilation systems); see 5 C.F.R. § 550.902.6Furthermore, plaintiffs’ work cannot be categorized as a “hazardous duty,” as potential exposure
6OPM’s guidance regarding hazardous duty pay based on potential exposure to the novel
coronavirus further calls into question plaintiffs’ claim under 5 U.S.C. § 5545(d):
The hazard pay differential cannot be paid to an employee who may come in
contact with the virus or another similar virus through incidental exposure to the
public or other employees who are ill rather than being exposed to the virus
during the performance of assigned duties (e.g., as in the case of a poultry handler
or health care worker). Also, the virus must be determined to be likely to cause
serious disease or fatality for which protective devices do not afford complete
protection.
OPM Memorandum No. 2020-05, Attach. A at 12 (Mar. 7, 2020), available at
https://go.usa.gov/xG2KS. While plaintiffs allege that over 100 employees and inmates of FCI
Danbury have tested positive for COVID-19, Compl. ¶ 17, the widespread nature of the
pandemic raises the probability that plaintiffs have come into contact with the virus via
“incidental exposure” as described by OPM.
6
to the virus is dissimilar to an “accident . . . such as duty performed on a high structure where
protective facilities are not used . . . .” 5 C.F.R. § 550.902. Plaintiffs’ claim for hazardous duty
pay, therefore, lacks textual support from the relevant statute, the corresponding regulation, and
binding precedent.7
II. Environmental Differential Pay Pursuant to 5 U.S.C. § 5343(c)(4)
While general schedule salaried employees are eligible for hazardous duty pay in certain
scenarios, waged employees qualify for environmental differential pay “for duty involving
unusually severe working conditions or unusually severe hazards . . . .” 5 U.S.C. § 5343(c)(4).
OPM promulgated 5 C.F.R. § 532.511 in response to the statute, authorizing “environmental
differential pay when [an employee is] exposed to a working condition or hazard that falls within
one of the categories approved by the Office of Personnel Management.” 5 C.F.R. §
532.511(a)(1). The categories upon which plaintiffs rely are “work[] with or in close proximity
to micro-organisms” which present a “high degree hazard,” and “work[] with or in close
proximity to micro-organisms” which present a “low degree hazard.” 5 C.F.R. Part 532, Subpart
E, Appx. A. OPM elaborated on the “high degree hazard” category in Appendix A, stating that it
covers “work situations wherein the use of safety devices and equipment, medical prophylactic
procedures such as vaccines . . . and other safety measures do not exist or have been developed
but have not practically eliminated the potential for . . . personal injury.” Id. If waged
employees seek environmental differential pay under this category, their work must “involve[]
potential personal injury such as death, or temporary, partial, or complete loss of faculties or
ability to work due to acute, prolonged, or chronic disease.” Id. The examples cited by OPM for
“work[] with or in close proximity to micro-organisms” posing a “high degree hazard” include
“[d]irect contact with primary containers of organisms pathogenic for man such as culture flasks,
culture test tubes, hypodermic syringes and similar instruments,” and “cultivating virulent
organisms on artificial media.” Id. The category of “work[] with or in close proximity to micro-
organisms” which pose a “low degree hazard” encompasses “situations for which the nature of
the work does not require the individual to be in direct contact with primary containers of
organisms pathogenic for man . . . .” Id.Plaintiffs seeking environmental differential pay, therefore, must show that (1) they
“work[ed] with or in close proximity to” the novel coronavirus; (2) the virus is a “micro-
organism” and safety precautions “have not practically eliminated” the risk of infection and
7
The court acknowledges the recent decision in Charles Adams, in which correctional
workers at the Bureau of Prisons Federal Medical Center in Lexington, Kentucky sued the
United States for hazardous duty pay, environmental differential pay, and overtime pay. See
Charles Adams, ____Fed. Cl. ____, 2020 WL 7334354. Plaintiffs assert that Charles Adams
presented and resolved “near-identical factual and legal issues” to the case currently before the
court. See Pls.’ Notice of Suppl. Authority at 4, ECF No. 16. To the extent that the facts and
legal issues in the present case parallel those presented in Charles Adams, the court respectfully
disagrees with the decision in that case to hold that the plaintiffs there had “stated a claim for
relief that rises above the speculative level.” Charles Adams, ____Fed. Cl. ____, 2020 WL
7334354, at *6. The Federal Circuit’s interpretation of the relevant terms in 5 U.S.C. § 5545(d),
5 C.F.R. § 550.902, and OPM’s schedule of pay differentials precludes this court from
concluding that plaintiffs have stated a claim for hazardous duty pay.
7
“personal injury;” and, if seeking pay under the “high degree hazard category, (3) plaintiffs’
duties “involve[] potential personal injury such as death, or temporary, partial, or complete loss
of faculties or ability to work due to acute, prolonged, or chronic disease.” 5 C.F.R. Part 532,
Subpart E, Appx. A.
Again, Adair compels the court to conclude that plaintiffs have failed to state a claim.
Just as exposure to the novel coronavirus is not “unusual” under § 5545(d), such exposure cannot
be characterized as “unusually severe” under § 5343(c)(4). Plaintiffs in Adair argued that
exposure to cigarette smoke entitled them to environmental differential pay under two categories:
“Poisons (toxic chemicals)—high degree hazard . . . and . . . Poisons (toxic chemicals)—low
egress hazard.” Adair, 497 F.3d at 1256-57. In holding that the plaintiffs in Adair had failed to
state a claim under § 5343, the Federal Circuit emphasized the importance of the examples of
“high or low degree hazards provided in the regulations . . . . 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 .
. . .” Id. at 1257-58 (emphasis in original). Notably, the Federal Circuit pointed out that “[t]he
examples do not cover situations in which the employees work with inmates who incidentally
smoke, for there is no work ‘with’ [second-hand smoke] in this context.” Id. at 1258 (emphasis
added).
In the present case, plaintiffs have not worked “with” the novel coronavirus, but “with or
in close proximity to objects, surfaces, and/or individuals infected with” the virus. Compl. ¶ 48.
In other words, plaintiffs allegedly have worked with objects and surfaces infected with the
virus, as well as “with inmates who incidentally” have COVID-19. Adair, 497 F.3d at 1258.
OPM’s examples of “work[] with or in close proximity to micro-organisms” are instructive. As
correctional officers, cook supervisors, and other employees at FCI Danbury, plaintiffs’ duties
are not analogous to those which require “[d]irect contact with primary containers of organisms
pathogenic for man such as culture flasks, culture test tubes, hypodermic syringes and similar
instruments,” or “cultivating virulent organisms on artificial media.” 5 C.F.R. Part 532, Subpart
E, Appx. A.
Plaintiffs point to Abbott v. United States, 47 Fed. Cl. 582 (2000), in arguing that Adair
does not foreclose their claims. Pls.’ Resp. at 4; Hr’g Tr. 34:17 to 36:5 (Dec. 22, 2020). In
Abbott, the court concluded that plaintiffs had stated a well-pleaded claim insofar as they
allegedly worked near contaminated rivers containing “virulent biologicals.” Abbott, 47 Fed. Cl.
at 584. To be sure, Adair addressed categories involving “toxic chemicals,” Adair, 497 F.3d at
1256-57, while plaintiffs allege exposure to “virulent biologicals,” as in Abbott, 47 Fed. Cl. at
584, and “micro-organisms,” Compl. ¶ 28. Even putting aside the fact that Adair was decided
after Abbott, the phrase “with or in close proximity to” is used in OPM’s schedules for
differential pay when working with “virulent biologicals,” “micro-organisms,” and “toxic
chemicals.” See 5 C.F.R. Part 550, Subpart I, Appx. A; 5 C.F.R. Part 532, Subpart E, Appx. A.
Adair addressed a different category under the schedule for environmental differentials, but this
detail does not render the Federal Circuit’s decision irrelevant. “[T]he substantial relation[s]
between” the categories and schedules promulgated by OPM “present[] a classic case for
application of the normal rule of statutory construction that identical words used in different
parts of the same act are intended to have the same meaning.” Sullivan v. Stroop, 496 U.S. 478,
484 (1990) (quoting Sorenson v. Secretary of Treasury, 475 U.S. 851, 860 (1986)) (additional
8
citations and quotation marks omitted). Therefore, the Federal Circuit’s interpretation of the
phrase “with or in close proximity to” in the context of environmental differential pay is binding
on this court. 8
III. Overtime Pay Under the Fair Labor Standards Act
Plaintiffs also claim that they “have been unlawfully deprived of overtime compensation”
under FLSA. Compl. ¶ 58. The government violated FLSA, plaintiffs allege, “by failing to
include hazardous duty pay and environmental differential payments . . . in the regular rate of
pay at which FLSA overtime is paid.” Compl. ¶ 57. The government counters that plaintiffs’
failure to state a claim under either 5 U.S.C. § 5545(d) or § 5343(c)(4) precludes recovery
additional overtime pay. Def.’s Mot. at 23.
The court concurs with the government, because plaintiffs’ claim for overtime pay under
FLSA is derivative of their claims for hazardous duty pay and environmental differential pay.
FLSA provides that an employee who works over 40 hours in a workweek is entitled to
“compensation for his employment in excess of the [40] hours . . . at a rate not less than one and
one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). The “regular
rate” which employees of FCI Danbury were paid would be higher if they could claim
entitlement to hazardous duty pay or environmental differential pay. Plaintiffs’ failure to state a
claim for these payments, however, bars their claim under FLSA as well.
CONCLUSION
For the reasons stated, the government’s motion to dismiss is GRANTED. Plaintiffs’
complaint shall be DISMISSED for failure to state a claim. The clerk shall enter judgment
accordingly.
No costs.
It is so ORDERED.
s/ Charles F. Lettow
Charles F. Lettow
Senior Judge
8
The court in Charles Adams held that plaintiffs had sufficiently pled their claim for
environmental differential pay to survive the motion to dismiss. 2020 WL 7334354, at *6. Here
also, however, the Federal Circuit’s interpretation of the term “with or in close proximity to,” as
well as its emphasis on the examples provided in OPM’s schedule of environmental differentials,
compel the court to dismiss plaintiff’s environmental differential claim. Compare Compl. ¶ 48,
with Adair, 497 F.3d at 1258 (concluding from the examples provided in 5 C.F.R. Part 532,
Subpart E, Appx. A that plaintiffs did not work “with” secondhand smoke).
9