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O'Neall v. United States

July 31, 1986

DONALD M. O'NEALL, JERRY E. CESARATTO, GEORGE WEISBARTH, FRANK W. POTTER, PAUL L. BRADLEY, DAVID P. NEWLUN, WARREN E. HENDERSON, ROBERT K. SMITH, PAUL D. METZ, ROLLIN R. PETERSON, GREGORY J. MERRIMAN, JOE C. WILSON, DONALD G. FARMER, JAY D. BENDER, THOMAS R. HERMAN, AND NEIL C. LAWSON, APPELLANTS,
v.
UNITED STATES OF AMERICA, CASPER W. WEINBERGER, SECRETARY OF DEFENSE, DEPARTMENT OF DEFENSE, VERNE ORR, SECRETARY OF AIR FORCE, DEPARTMENT OF AIR FORCE, COLONEL YARYAN, BASE COMMANDER 92D COMBAT SUPPORT GROUP, FAIRCHILD AIR FORCE BASE, APPELLEES



Appealed from: U.S. District Court for the Eastern District of Washington. Judge Quackenbush.

Friedman, Circuit Judge, Bennett, Senior Circuit Judge, and Nies, Circuit Judge.

Nies

NIES, Circuit Judge.

This appeal involves the entitlement of civilian workers employed at Fairchild Air Force Base, Spokane, Washington, to extra pay because of exposure to asbestos dust in their work. Donald M. O'Neall et al. challenge two rulings of the United States District Court for the Eastern District of Washington, on questions certified by that court under 28 U.S.C. § 1292(b) (1982). In sum, the court held that the Air Force reasonably may limit payment of environmental differential pay to those employees who were exposed to airborne concentrations of asbestos fibers of at least two fibers per cubic centimeter averaged over the workday (2 f/cc standard). The court denominated this level of exposure a "condition precedent" to entitlement. After the court's ruling on the propriety of this standard as the basis for payments, O'Neall et al. moved to place the burden of proof upon the government with respect to proof of the level of exposure. The district court denied the motion. These issues were certified to the Ninth Circuit which accepted the certification. Thereafter, pursuant to the government's suggestion, the Ninth Circuit transferred the appeal to this court. The jurisdiction of the district court was based on 28 U.S.C. § 1346(a)(2); each claimant limited his claim to less the $10,000. The appeal from such cases coming within the exclusive jurisdiction of this court under 28 U.S.C. § 1295(a)(2) and 28 U.S.C. § 1292(b), jurisdiction of the certified questions has been accepted.

Issues

The following two questions were certified for immediate appeal under 28 U.S.C. § 1292(b) (1982):

1. Did the court correctly rule as a matter of law that as a condition precedent to entitlement to Environmental Differential Pay the plaintiffs are required to establish that they were exposed to airborne concentrations of asbestos fibers of at least 2 fibers/cu. cm.?

2. Did the court correctly rule that the plaintiffs have the burden of establishing exposure to airborne concentrations of asbestos fibers of at least 2 fibers/cu. cm. to entitle them to Environmental Differential Pay?

The parties construe these questions to present the issues of the propriety of the 2 f/cc standard as a threshold requirement for environmental differential pay and the propriety of requiring the plaintiffs to prove exposure to that level of asbestos dust as part of their prima facie case.

II.

Donald M. O'Neall and the other plaintiffs in this suit (collectively "Employees") are operators and pipefitters of the central steam plant at Fairchild Air Force Base in Spokane, Washington. As part of their daily duties, these civilian employees perform inspection and maintenance work on or around pipes and boilers covered with asbestos insulation.

On June 17, 1981, Employees filed suit in the United States District Court for the Eastern District of Washington seeking environmental differential pay (EDP) for certain periods since 1970 when such payments were not made. Employees contend that any exposure to asbestos dust as a result of their employment creates an entitlement to EDP. EDP takes the form of an increase in an employee's hourly wages, and, broadly stated, it compensates an employee for exposure to certain types of working conditions of an unusually severe nature. Since June, 1980, the Air Force has implemented the EDP program by making payments only when employees have been exposed to levels of asbestos dust which exceed 2 f/cc, which is the standard adopted by the Air Force for a safe working environment. Employees do not assert here that the Air Force has not paid EDP to them in accordance with that standard.

The statutory basis for Employees' claim of entitlement to EDP is 5 U.S.C. § 5343(c) (1982), which provides, in pertinent part:

(c) 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.

Pursuant to the predecessor statute, the then Civil Service Commission*fn1 promulgated Federal Personnel Manual Supplement 532-1, ...


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