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United States Court of Appeals for the Federal Circuit
June 27, 2022, Decided
[*1040] Per Curiam.
This case was argued before a panel of three judges on October 6, 2021. Thereafter, a sua sponte request for a poll on [*1041] 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.
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 [**2] 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?
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?
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38 F.4th 1040 *; 2022 U.S. App. LEXIS 17668 **; 2022 WL 2301456
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
Prior History: [**1] Appeal from the United States Court of Federal Claims in No. 1:20-cv-00783-CFL, Senior Judge Charles F. Lettow.
Adams v. United States, 152 Fed. Cl. 350, 2021 U.S. Claims LEXIS 55, 2021 WL 406188 (Feb. 5, 2021)
en banc, amicus brief, opening brief, days of service, active service, oral argument, differentials, Schedules, exposure, regular