Adams v. United States ( 2020 )

In the United States Court of Federal Claims
No. 20-909C
Filed: December 14, 2020
CHARLES J. ADAMS, et al., Keywords: Motion to
Dismiss; RCFC 12(b)(6);
Plaintiffs, Motion for More Definite
Statement; RCFC 12(e); 5
v. U.S.C. §§ 5545, 5343;
hazardous duty pay;
THE UNITED STATES, environmental differential pay;
FLSA; 29 U.S.C. § 207;
Defendant.
COVID-19.
David Ricksecker, McGillivary Steele Elkin LLP, Washington, D.C., for Plaintiff.
Eric E. Laufgraben, Senior Trial Counsel, and Liridona Sinani, Trial Counsel, with whom were
Allison Kidd-Miller, Assistant Director, Robert E. Kirschmann, Jr., Director, National Courts
Section, Commercial Litigation Branch, Jeffrey B. Clark, Acting Assistant Attorney General,
Civil Division, U.S. Department of Justice, Washington, D.C., Marie C. Clarke, Douglas S.
Goldring, and Kathleen Haley Harne, Of Counsel, Federal Bureau of Prisons, for Defendant.
MEMORANDUM OPINION AND ORDER
TAPP, Judge.
The country is currently in the throes of a viral pandemic that has wholly altered
American life, potentially for years to come. 1 Against that backdrop, the Plaintiffs, comprising
115 employees of the United States Federal Bureau of Prisons in Lexington, Kentucky, bring
claims against the United States asserting entitlement to hazardous duty pay. These employees
allege that in the course of their employment, they were exposed to the novel coronavirus SARS-
CoV-2—the cause of the COVID-19 disease and pathogenic catalyst of the global pandemic. 2
1
The Centers for Disease Control and Prevention (CDC) reports over 16 million domestic cases
of COVID-19 infections resulting in nearly 300,000 deaths as of the filing of this Order. See
https://covid.cdc.gov/covid-data-tracker/#cases casesper100klast7days (last visited December
14, 2020).
2
In its brief, the United States points out that the virus is titled differently than the disease it
causes. (Def.’s Mot. at 1 n.1, ECF No. 9). But, as the Plaintiffs observe, the virus is a necessary
precondition to the disease, so public health agencies and the general populace alike refer to the
The United States seeks dismissal of the Plaintiffs’ claims, or in the alternative, moves
for a more definite statement. (Def.’s Mot., ECF No. 9). However, as the Plaintiffs’ Opposition
persuasively explains, the employees have stated a plausible claim for relief that is not so vague
or ambiguous that the United States is unable to reasonably prepare a response. (See Pls.’ Opp.,
ECF No. 10). Therefore, the Plaintiffs’ Complaint clears the initial hurdle necessary for them to
continue their pursuit of relief. Accordingly, the Court DENIES the United States’ Motion to
Dismiss and DENIES the United States’ Motion for a More Definite Statement.
I. BACKGROUND
The Plaintiffs are current and former employees of the Federal Medical Center in
Lexington, Kentucky (hereinafter “FMC Lexington”), a Bureau of Prisons facility adjacent to a
minimum-security prison. (Compl. at 5, 7, ECF No. 1). Plaintiffs allege that, as of the date their
Complaint, “more than 280 employees and inmates of FMC Lexington have been confirmed to
be infected with COVID-19” and at least six inmates have died from the disease. 3 (Compl. at 9).
COVID-19 is a highly contagious respiratory infection, producing symptoms that vary widely in
nature and severity, and can be fatal. The Plaintiffs allege that, during their employment duties,
they have “performed work with or in close proximity to objects, surfaces, and/or individuals
infected with [COVID-19].” (Id. at 8–9).
In seeking relief, Plaintiffs primarily rely on 5 U.S.C. §§ 5545 (Count I) & 5343 (Count
II). (Compl. at 12–16). Section 5545—and thus Count I—concerns hazardous duty pay. Section
5343—and Count II—concerns environmental differential pay. The difference is simple:
hazardous duty pay is available to general schedule salaried employees, while environmental
differential pay is available to waged employees. Plaintiffs also bring a Fair Labor Standards Act
(“FLSA”) claim under Count III. (Compl. at 16–17). Count III is derivative of the first two
Counts in that it seeks an adjustment to the employees’ overtime compensation that comports
with the entitlements to differential pay under Sections 5545 & 5343.
A. Hazardous Duty Pay
A general schedule salaried federal employee is eligible to receive hazardous duty pay
differentials “for duty involving unusual physical hardship or hazard[.]” 5 U.S.C. § 5545(d).
However, when a general schedule employee’s classification “takes into account the degree of
physical hardship or hazard involved in the performance of the duties” of that position, the
employee is not entitled to hazardous duty pay (subject to certain exceptions that are not relevant
virus and disease collectively as “COVID-19.” (Pls.’ Opp. at 5–6 n.2, ECF No. 10). Because the
distinction is irrelevant for the purposes of the United States’ Motion to Dismiss, in the interests
of simplicity, the Court will simply refer to the virus and the disease as “COVID-19.”
3
In Kentucky, where FMC Lexington is centrally located, COVID-19 infection rates currently
surpass the national average with an estimated 22,600 new cases within the past seven days.
https://covid.cdc.gov/covid-data-tracker/#cases_casesper100klast7days (last visited December
14, 2020).
2
here). § 5545(d)(1). The Office of Personnel Management (“OPM”) is empowered to prescribe
regulations consistent with the statute. §§ 5545(d) & 5548.
Under this authority, OPM defined “duty involving physical hardship” to mean “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[.]” 5 C.F.R. § 550.902. Further,
“[h]azardous duty means duty performed under circumstances in which an accident could result
in serious injury or death[.]” § 550.902. OPM also established a table to administer hazardous
duty pay differentials. § 550.904(a). This table, found in Appendix A to Subpart I of 5 C.F.R.
Part 550, lists “Exposure to Hazardous Agents, [including] work with or in close proximity to . . .
[v]irulent biologicals” as a compensable hazardous duty. Appendix A describes virulent
biologicals as “[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. § Pt. 550, Subpt. I, App. A.
B. Environmental Differential Pay
A waged federal employee is eligible to receive environmental differential pay “for duty
involving unusually severe working conditions or unusually severe hazards[.]” 5 U.S.C. §
5343(c)(4). Under its statutory authority, OPM is empowered to establish regulations to
administer environmental differential pay. § 5346. OPM has created a schedule for qualifying
duties, which are included in Appendix A to Subpart E of 5 C.F.R. Part 532. See 5 C.F.R. §
532.511. Appendix A “lists the environmental differentials authorized for exposure to various
degrees of hazards, physical hardships, and working conditions of an unusual nature.” According
to Appendix A, there are pay differentials for two categories of exposure to micro-organisms:
6. Micro-organisms—high degree hazard.
Working with or in close proximity to micro-organisms which involves
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. These are work situations wherein the use of safety devices and
equipment, medical prophylactic procedures such as vaccines and
antiserims [sic] and other safety measures do not exist or have been
developed but have not practically eliminated the potential for such
personal injury[.]
...
7. Micro-organisms—low degree hazard.
a. Working with or in close proximity to micro-organisms in 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,
such as culture flasks, culture test tubes, hypodermic syringes and similar
instruments, and biopsy and autopsy material
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b. Working with or in close proximity to micro-organisms in 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,
such as culture flasks, culture test tubes, hypodermic syringes and similar
instruments, and biopsy and autopsy material and wherein the use of
safety devices and equipment and other safety measures have not
practically eliminated the potential for personal injury[.]
5 C.F.R. § Pt. 532, Subpt. E, App. A.
C. FLSA Overtime
Pursuant to Section 7(a) of the FLSA, employees are entitled to compensation for work
performed in excess of forty hours per week “at a rate not less than one and one-half times the
regular rate at which he [or she] is employed.” 29 U.S.C. § 207; see also 29 U.S.C. § 204(f) and
5 C.F.R. 551.501 (“An agency shall compensate an employee who is not exempt . . . for all hours
of work in excess of 8 in a day or 40 in a workweek at a rate equal to one and one-half times the
employee’s hourly regular rate of pay” subject to listed exemptions). Calculations of differential
pay are used as the base rate for calculating waged employees’ overtime pay. 5 C.F.R. §
532.511(c) (“Environmental differential pay is part of basic pay and shall be used to compute
premium pay [including] pay for overtime . . ..”). However, for general schedule employees,
“[h]azard pay differential is in addition to any additional pay or allowances payable under other
statutes. It shall not be considered part of the employee’s rate of basic pay in computing
additional pay or allowances payable under other statutes.” 5 C.F.R. § 550.907.
II. DISCUSSION
A. Motion to Dismiss
The United States moves to dismiss Plaintiffs’ Complaint for failure to state a claim upon
which relief can be granted. RCFC 8, the counterpart to Fed. R. Civ. P. 8, requires that a
pleading contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” RCFC 8(a)(2). In considering a motion to dismiss for failure to state a claim, the Court
“must accept as true all of the allegations in the [pleading]” and “must indulge all reasonable
inferences in favor of the non-movant.” Sommers Oil Co. v. United States, 241 F.3d 1375, 1378
(Fed. Cir. 2001).
For a claim to be properly stated, the pleading “must contain sufficient factual matter,
accepted as true, to state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). However, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). “[O]nly a [pleading] that states a plausible claim for relief survives a
motion to dismiss.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible
claim for relief [is] a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.
The United States moves for dismissal under RCFC 12(b)(6), arguing that Plaintiffs’
Complaint does not state a claim for entitlement to either hazardous duty or environmental
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differential pay. (Def.’s Mot. at 14). Naturally, Plaintiffs oppose dismissal, arguing that although
the parties agree on the elements which must be pled, the United States’ legal theory in support
of dismissal is not supported by the plain text of the relevant statutes and regulations. (Pls.’ Opp.
at 11). The Court finds that each of the three counts pled in Plaintiffs’ Complaint plausibly states
a claim for relief.
i. Plaintiffs Have Sufficiently Alleged Entitlement to Hazardous Duty Pay
Under 5 U.S.C. § 5545 to Survive a Motion to Dismiss
Plaintiffs and the United States agree that, to state a claim for hazardous duty pay based
on COVID-19 exposure, the Complaint must effectively plead three elements:
(1) The employee was assigned and performed work with or in close proximity to
COVID-19;
(2) COVID-19 is a virulent biological likely to cause serious disease or fatality if
introduced into the human body and for which protective devices do not afford
complete protection; and
(3) The employee’s job classification does not take into account the degree of physical
hardship or hazard involved in the performance of the duties of that position.
(Def.’s Mot. at 8; Pls.’ Opp. at 12–13); 5 C.F.R. § 550.904(a); 5 C.F.R. § Pt. 550, Subpt. I, App.
A.
The Court agrees that Plaintiffs have sufficiently pled facts that, taken as true, support
each element in their Complaint. Plaintiffs allege that they were correctional workers assigned to
work with or in proximity to COVID-19. (Compl. ¶¶ 7, 25, 28, 30, 36). They have alleged
COVID-19 is a virulent biological likely to cause significant injury or death, (Compl. ¶¶ 18, 19),
and that protective devices do not afford complete protections, (Compl. ¶¶ 20–24, 25, 27).
Finally, Plaintiffs have pled that the classification of their positions does not account for the
hardships or hazards involved in the performance of those duties. (Compl. ¶¶ 3–7, 26). RCFC
8(a)(2) does not require more. “[T]he pleading standard Rule 8 announces does not require
‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-
harmed-me accusation.” Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).
Here, Plaintiffs have sufficiently pled facts supporting entitlement to hazardous duty pay to
“allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 662. Thus, Count I survives the United States’ Motion to Dismiss.
The United States incorrectly relies on Adair v. United States, 497 F.3d 1244 (Fed. Cir.
2007), in arguing that “working with or in close proximity to” either a virulent biological or
micro-organism “refers to assignments such as cultivating virulent tissue cultures, and operating
or maintaining equipment in biological experimentation or production.” (Def.’s Mot. at 16). In
Adair, several prison guards at a Federal Correctional Institution sought enhanced backpay for
exposure to second-hand tobacco smoke, which they argued was a toxic chemical covered by
Appendix A. Adair, 497 F.3d. at 1249. The Federal Circuit affirmed the lower court’s dismissal
under RCFC 12(b)(6) on the grounds that, although second-hand tobacco smoke contains toxic
chemicals, it did not fall within § 5545(d) or the implementing regulations for several reasons.
5
Id. First, the Court explained that § 5545(d) provides for differential pay only for duties
involving “unusual physical hardship or hazard,” but that second-hand smoke is not “unusual”
within the meaning of the statute. Id. at 1252–53 (emphasis in Court’s opinion). Second, the
Court explained that Appendix A only covers “toxic chemical materials when there is a
possibility of leakage or spillage.” Id. at 1256 n.6 (citing 5 C.F.R. Pt. 550, Subpt. I, App. A)
(emphasis in Court’s opinion). It observed that second-hand smoke is a “byproduct of cigarette
burning—it does not have a possibility of leaking or spilling from cigarettes.” Id. at 1256
(emphasis in original). Third, the Court determined that the dangers of second-hand smoke could
“be adequately alleviated by protective or mechanic devices, such as ventilation (under the
definition of ‘duty involving physical hardship’) and because it does not constitute an ‘accident’
(under the definition of ‘hazardous duty’).” Id. at 1255. Therefore, the Federal Circuit concluded
second-hand tobacco smoke did not fall within either the plain meaning of § 5545(d) or the
implementing regulations of Appendix A. Id. at 1255–56.
The United States argues that in interpreting § 5343(c)(4) (for environmental differential
pay) and its implementing regulations, the Federal Circuit narrowed the phrase “working with or
in close proximity [to toxic chemicals]” to mean “‘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[.]’” (Def.’s Mot. at 17 (quoting Adair, 497 F.3d at 1258)). The United States
draws an analogy to virulent biologicals to maintain that the only way the Plaintiffs in this case
could state a claim with respect to the first element is if Plaintiffs pled they were working
directly with COVID-19 or containers that held the virus as part of the job assignment. (Id. at
17–18). Plaintiffs aptly point out that such a narrow reading would produce absurd results:
[I]f the Government’s interpretation is accepted, it is likely no one would be
entitled to hazardous duty pay for exposure to virulent biologicals at all. Only
those people who were working with and handling virulent biologicals on a
regular basis would be eligible for hazardous duty, but through their routine
exposure, this hazard would have been taken into account in the classification
of their position, making them ineligible for the hazardous duty pay. The
Government’s limiting definition would therefore swallow the rule, rendering
Appendix A’s reference to virulent biologicals superfluous.
(Pls.’ Opp. at 15). The crux of the United States’ argument is that working with infected objects,
surfaces, and persons is not working with or in close proximity to the virus itself, which it claims
is what is required to state a claim for hazardous duty pay. (Def.’s Mot. at 17–18). However, the
Court agrees with Plaintiffs that “[t]he added specificity of ‘objects, surfaces, and/or individuals
infected with’ COVID-19 in the Complaint merely clarifies how Plaintiffs have been working
‘with or in close proximity to’ COVID-19.” (Id. at 11).
The United States further argues that the Complaint does not sufficiently connect the
Plaintiffs to an infected employee or inmate, identify specific job assignments of the Plaintiffs or
specify where the Plaintiffs came into contact with an object, surface, or individual infected.
(Def.’s Mot. at 21). However, these are matters for discovery, and potentially, summary
judgment. Plaintiffs’ Opposition is well stated: “[J]ust because Plaintiffs do not explicitly state,
for example, that ‘on X date, plaintiff Y was assigned to work and did work with and in close
proximity to inmate Z, who tested positive for COVID-19 the same day,’ it does not mean they
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have failed to apprise the government that such facts exist.” (Pls.’ Opp. 22). Plaintiffs have
alleged sufficient facts that state a plausible claim for relief: they were correctional workers at
the time of COVID-19 outbreaks at FMC Lexington and were exposed to COVID-19 through the
course of their assigned duties. The Complaint gives the United States fair notice of Plaintiffs’
claims. Plaintiffs need not include “detailed factual allegations” in the Complaint, they must
simply “raise a right to relief above the speculative level on the assumption that all of the
complaint’s allegations are true.” Twombly, 550 U.S. at 545. The Court finds that Plaintiffs have
done so here.
ii. Plaintiffs Have Sufficiently Alleged Entitlement to Environmental Differential
Pay Under 5 U.S.C. § 5343To state a claim for environmental differential pay under § 5343, the parties agree that
either two or three elements must be pled, depending on the severity of the hazard presented by
the micro-organism. (Def.’s Mot. at 10; Pls.’ Opp. at 13). To demonstrate entitlement to
environmental differential pay for low-degree hazardous exposure, the Plaintiffs must plead:
(1) The employee worked with or in close proximity to COVID-19; and
(2) COVID-19 is a micro-organism for which safety devices, equipment, and other
measures have not practically eliminated the potential for personal injury.
5 C.F.R. § 532.511(d); 5 C.F.R. Pt. 532, Subpt. E, App. A. If the Plaintiffs claim their exposure
presented a “high degree hazard,” they must plead a third element:
(3) The work involves potential personal injury such as death, or temporary, partial, or
complete loss of facilities or ability to work due to acute, prolonged, or chronic
disease.
5 C.F.R. § 532.511(d); 5 C.F.R. Pt. 532, Subpt. E, App. A.
Like its earlier counterpart, Count II sufficiently states a plausible claim for relief under
§ 5343 to survive a motion to dismiss. Plaintiffs allege they were correctional workers assigned
to work with or in proximity to COVID-19. (Compl. ¶¶ 7, 25, 28, 30, 36). They have alleged
COVID-19 is a micro-organism that has the potential to cause personal injury, (Compl. ¶¶ 18,
19), and safety measures do not afford complete protections, (Compl. ¶¶ 20–24, 25, 27).
Plaintiffs have also pled that the virus is a high degree hazard, pointing out data from public
health institutions that indicate the virus can cause “mild . . . to severe illness and death.”
(Compl. ¶¶ 18, 19). On its review of the Complaint, the Court finds that Plaintiffs have
sufficiently pled facts that, taken as true, support entitlement to environmental differential pay
and thus “allow[] the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 662. Thus, Count II survives the United States’ Motion
to Dismiss.
The United States’ arguments to the contrary are unpersuasive. As explained in Section
II(A)(i) supra, the United States’ theory that Plaintiffs must allege they were actually handling
vials or test tubes containing micro-organisms to state a claim for working “with or in proximity
to” hazardous micro-organisms is too narrow. The United States’ additional arguments are based
7
on examples that attempt to illustrate the regulations and guidance from OPM contained in a
now-defunct Federal Personnel Manual. (Def.’s Mot. at 17–18). However helpful these examples
and guidance may be, the United States acknowledges that they are non-exhaustive, and not
binding on the Court. (Id. at 18; Def.’s Reply at 8, ECF No. 12). Therefore, reliance on these
sources would be inappropriate at this stage of litigation. Under § 5343, Plaintiffs have stated a
claim for relief that rises “above the speculative level[.]” Twombly, 550 U.S. at 545. Thus, the
United States’ Motion to Dismiss with respect to Count II must be denied.
iii. Plaintiffs Have Sufficiently Alleged Entitlement to an Adjustment to
Overtime Compensation Under the FLSA
The parties agree that Count III is derivative of Counts I & II in that it alleges Plaintiffs’
overtime pay was miscalculated because their regular rate of pay failed to take environmental
differentials or hazard pay into account. (See Compl. ¶ 57; Def.’s Reply at 17). The United
States’ Motion to Dismiss Count III is entirely premised on its arguments that Counts I & II are
not viable. (Def.’s Mot. at 23 (arguing that “because Count III is dependent upon the viability of
Counts I and II, and Counts I and II fail to state a claim, Count III should also be dismissed.”)).
Because the Court finds Counts I & II to be viable at this stage, Count III remains viable as well.
Therefore, the United States’ Motion to Dismiss is denied with respect to Count III.
B. Motion for a More Definite Statement
In addition to its Motion to Dismiss, the United States, in the alternative, moved for a
more definite statement under RCFC 12(e). (Def.’s Mot. at 24–26). Under RCFC 12(e), “[a]
party may move for a more definite statement of a pleading to which a responsive pleading is
allowed but which is so vague or ambiguous that the party cannot reasonably prepare a
response.” But RCFC 8(a)(2) only requires “a short and plain statement of the claim showing
that the pleader is entitled to relief[.]” Thus, a motion under RCFC 12(e) “must point out the
defects complained of and the details desired.” Other judges of this Court have explained that
RCFC 12(e) is “designed to remedy unintelligible pleadings, not to correct for lack of detail.”
Goodeagle v. United States, 111 Fed. Cl. 716, 722 (2013) (internal citations and quotations
omitted); see also Whalen v. United States, 80 Fed. Cl. 685, 693–94 (2008) (finding that
“[d]iscovery should resolve any complications” arising from facts pertaining to employment
records omitted from the Complaint).
In support of its Motion, the United States includes a laundry list of information it wishes
Plaintiffs had included in the Complaint. (Def.’s Mot. at 25). Primarily, the United States argues
that Plaintiffs were required to include detailed (and largely repetitive) information about each of
the 115 employees that have brought claims, including the nature of their position and the
incidents at the facility which may have exposed them to COVID-19. (Id. at 24). The Court
agrees with the Plaintiffs that it “strains credulity” that the Complaint is “so vague or ambiguous
that the [United States] cannot reasonably prepare a response.” (See Pls.’ Opp. at 25
(persuasively arguing that the United States’ “detailed motion to dismiss” shows that the United
States clearly “understands Plaintiffs’ complaint.”)). The majority of the information that the
United States seeks is either in its possession as the employer of the Plaintiffs or would be
readily produced in discovery. See Whalen, 80 Fed. Cl. 685, 694 (finding a more definite
statement unnecessary where the “government has custody of the relevant employment
8
documentation . . . and can resolve any uncertainty regarding any particular individual’s claim
through discovery.”); Fed. Air Marshals v. United States, 74 Fed. Cl. 484, 488 (2006) (denying a
RCFC 12(e) motion in a case with more than one thousand plaintiffs because the government
had control over the relevant records and could easily access those documents during discovery).
As discussed above, Plaintiffs are not required to prove their claims at the motion to
dismiss stage, and RCFC 12(e) is not designed “to correct [a pleading] for lack of detail[.]”
Goodeagle, 111 Fed. Cl. at 722 (2013) (internal citations and quotations omitted). Plaintiffs’
claims here establish a plausible basis for relief and are sufficiently intelligible to permit the
United States to respond.
III. CONCLUSION
Counts I and II plausibly state claims for relief that are not so vague and ambiguous that
the United States is unable to prepare a response. Likewise, Count III, which is derivative of
Counts I and II, plausibly states a claim entitling Plaintiffs to relief. Therefore, the Court orders
the following:
1. The United States’ Motion to Dismiss, (ECF No. 9), is DENIED.
2. The United States’ Motion for a More Definite Statement is DENIED.
3. The United States is ORDERED to file an Answer on or before December 28,
2020.
4. On or before January 11, 2021, the parties are ORDERED to file a Joint
Preliminary Status Report consistent with Appendix A of the RCFC. This status
report shall contain a proposed schedule for further proceedings.
IT IS SO ORDERED.
s/ David A. Tapp
DAVID A. TAPP, Judge
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