Opposition Brief — Stewart v. United States

Supreme Court brief1984

Ask Donna

What actually matters in this document.

Text

Qttice -Supreme Court, U.S.

Kk I LED

No. 84-287 OGT 22 1984

"—SCEXANDER CT. STEVAS,

CLERK

In The

Supreme Court of the United States

October Term, 1984

tf).

LEROY STEWART,

Petitioner,

Vs.

UNITED STATES OF AMERICA, GARY NUSS and

ROCKWELL INTERNATIONAL CORPORATION,

Respondents.

ra’

RESPONDENTS’ CPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

fay

JAMES E. Eviort, JR.

Brice A. ToNDRE

THE ELLIOTT LAW OFFICES

4465 Kipling Street, Suite 200

Wheat Ridge, Colorado 80033

Telephone: (303) 424-5319

Attorneys for Respondents

Gary D. Nuss

Rockwell International Corporation

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

” BEST AVAILABLE COPY I

QUESTIONS PRESENTED FOR REVIEW

I. Does the Workmen’s Compensation Act of Colorado

(hereinafter the Act) apply to emplovees of Rockwell

International Corporation (hereinafter Rockwell) at the

Rocky Flats Plant?

II. If the Act is so applicable. vas summary judgment in

favor of Respondents, Rockwell and Nuss, and against

Petitioner Stewart proper?

III. If the Act is so applicable, does the United States

qualify as a statutory employer under its provisions, and

is it thereby entitled to immunity from suit under the

Federal Tort Claims Act?

IV. Were Petitioner Stewart and Respondent Nuss in

fact employed by the same employer, and is the Petitioner

thereby precluded from bringing suit against a co-em-

ployee under the Act?

TABLE OF CONTENTS

Pages

Table of Authorities ........... iil

Opinions Below 1

Jurisdiction 1

Demeneeh. 2E the Cae) incite eee Peg

Reasons For Denying The Writ 6

PIL, sicsicssscncincosonunikonoal 30

Appendices :

Appendix A: Affidavit of Herman E. Roser, Man-

ager of the Albuquerque Operations

Office of the Office of the United

States Department of Energy

(DOE) App. 1

Appendix B: Affidavit of James A. Stout, Coun-

sel for ERDA at the Rocky Flats

Area Office in May, 1976 0. App. 6

Appendix C: Excerpts from the Deposition of

Plaintiff, LeRoy Stewart 0... App. 8

Appendix D: Affidavit of James R. Nicks, Assist-

ant Area Manager, United States De-

partment of Energy, Rocky Flats

Plant App. 13

Appendix E: Affidavit of S.G. Thomas, Plant Pro-

tection Manager, Rockwell Internat-

ional Corporation, Rocky Flats

Plant . App. 15

Appendix F: 1919 Colorado Session Laws, Chap-

ter 210, Sections 6, 7, 8(b), 9(b), 12,

13, 15, 18, 49 ...... App. 18

Appendix G: Material Statutory Provisions ........... App. 23

ill

TABLE OF AUTHORITIES

CASES: Pages

Begay v. Kerr-McGee Corp., 682 F.2d 1311 (9th Cir.

1982) 7

Berry’s Coffee Shop, Inc. v. Palomba, 161 Colo. 369,

423 P.2d 2 (1967) 13, 14, 16

Campbell v. Black Mountain Spruce, 677 P.2d 379

(Colo. App. 1983), cert. denied (1984) 26

Campbell v. Gates Rubber ~ 526 P.2d 679 (Colo.

App. 1974) 11,19

Capetola et al. v. Barclay White Co., 139 F.2d 556 (3d

Cir. 1943), cert. denied, 321 U.S. 799 | re 7,8

Carson v. Roane-Anderson Co., 342 U.S. 232 (1952) ... 27

City and County of Denver District No. 1 v. Industrial

Commission, 196 Colo. 131, 581 P.2d 1162 (1978) .. 9

Colorado Civil Air Patrol v. Hagans, 662 P.2d 194

(Colo. App. 1983) eet 15, 16

Deterts v. Times Publishing Co., 38 Colo. App. 48, 552

P.2d 1033 (1976), cert. dented (1976) ne 8, 14, 16

Edwards v. Price, 191 Colo. 46, 550 P.2d 856 (1976),

appeal dismissed, 429 U.S. 1056 (1977) . oe

Finn v. Industrial Commission, 165 Colo. 106, 437 P.2d

542 (1968) _ 17

Frohlick Crane Service, Inc. v. Mack, 182 Colo. 34,

510 P.2d 891 (1973) 8, 9,19

Kandt v. Evans, 645 P.2d 1300 (Colo. 1982) —......-. 17,18

Kitchens v. Department of Labor and Employment, 29

Colo. App. 374, 486 P.2d 474 — cert. denied

(1971) 11, 12,13

Matter of Welham, 653 P.2d 760 (Colo. App. 1982)

a 10, 15, 16

Mineral County v. Industrial Commission, 649 P.2d

728 (Colo. App. 1982), cert. denied (1982) —....-.._ 15

TABLE OF AUTHORITITIES—Continued

Pages

Olveda v. United States, 508 F. Supp. 255 (E.D. Tex.

1981) 19, 24

Prescott v. United States, 523 F. Supp. 918 (D.C. Nev.

1981), aff'd on other grounds, 731 F.2d 1388 (9th

Cir. 1984) — o .

Richardson v. United States, 577 F.2d 133 (10th Cir.

1978) 21, 22, 23

Roelofs v. United States, 501 ¥.2d 87 (Sth Cir.

1974)... eee 21, 22, 23, 25

Scanlon v. U.S., Civil No. 78-F-509 (D.Colo. June 21,

1979) 24

Sieck v. Trueblood, 29 Colo. App. 482, 485 P.2d 134

EAEALD . sivnssieitsicnalamnctinmsadasibiianaciens 19

Stacey v. United States, 270 F. Supp. 71 (E.D. La.

1967) 26

State Compensation Insurance Fund v. Walter, 148

Colo. 556, 354 P.2d 591 (1960) 9,11, 12

Stewart v. United States, 716 F.2d 755 (10th Cir.

1982) passim

Travelers Insurance Co. v. Cardillo, 141 F.2d 362 (D.

C. Cir. 1944)

United States v. Gliatta, 580 F.2d 156 (5th Cir. 1978) . 6

United States v. Lewisburg Area School District, 539

F.2d 301 (3d Cir. 1976) 6

Varsity Amusement Co. v. Butters, 155 Colo. 330, 394

P.2d 603 (1964) 19

Woodruff World Travel, Inc. v. Industrial Commis-

sion, 38 Colo. App. 92, 554 P.2d 705 (1976), cert.

denied (1976) 9,12

TABLE OF AUTHORITIES—Continued

Pages

STATUTES :

C.R.S. Section 8-41-106(1) (a) (1) (A) 16

C.R.S. Section 8-42-102 | 9, 19, 21, 24

C.R.S. Section 8-48-101 20, 26

C.R.S. Section 8-48-102 20

1919 Colo. Session Laws, Chapter 210, Sections 6, 7,

8(b), 9(b), 12, 18, 15, 18, 49 8

5 U.S.C. Section 8101 et seq. 30

28 U.S.C. Section 1346(b) 4, 20

28 U.S.C. Section 2101(¢) 1

28 U.S.C. Section 2671 et seq. 4

SO eee. I I tease neinbciidiicheticciseicanincentlamk 20

40 U.S.C. Section 290 ... 1, 23, 29

42 U.S.C. Section 2061 .... 27, 28

42 U.S.C. Section 2061(b) ...... 28

42 U.S.C. Section 2121 1

42 U.S.C. Section 2201(k) 28, 29

42 U.S.C. Section 5814 ew)

42 U.S.C. Section 7151 2

OPINIONS BELOW

The opinion of the United States District Court tor

the District of Colorado, Stewart v. United States, Civil

No. 78-K-1061 (D.Colo. March 3, 1980), is set forth in the

Petition For Writ Of Certiorari at page 63. The opinion

of the United States Court of Appeals for the Tenth Cir-

cuit, Stewart v. United States, 716 F.2d 755 (10th Cir.

1982), is similarly set forth at page 26. The Order Deny-

ing Petition for Rehearing, Stewart v. United States, No.

80-1329 (10th Cir., May 23, 1984), is set forth at page 62

of the Petition.

ra’

JURISDICTION

The Respondents do not contest the jurisdiction of

this Court pursuant to 28 U.S.C. Section 2101(c).

— r=

STATEMENT OF THE CASE

The Rocky Flats Plant, a sixty five hundred (6,500)

acre tract located near Golden, Colorado, is the see of

the injury which is the subject of this litigation. It is

owned in fee simple by the United States Government and

is operated solely for the purpose of manufacturing nu-

clear weapons components, Stewart v. United States, 716

F.2d at 759; (Petition p. 6), pursuant to the statutory

authority of the Atomic Energy Act of 1954, as amended

(hereinafter the A. E. Act). 42 U.S.C. Section 2121

(1958). The authority relative to the production of

atomic weapons was originally conferred upon the

Atomic Energy Commission (hereinafter AEC) in 1946.

However, in 1974, the AEC was abolished and, from

1974 to 1977, the Energy Research and Development Ad-

ministration (hereinafter ERDA) was responsible for the

administration of the A. FE. Act. 42 U.S.C. Section 5814

(1974). ERDA was, therefore, the existing responsible

agency at the time of the accident on May 20, 1976. Since

October 1, 1977, this authority has been vested in the

Secretary of Energy pursuant to the Department of En-

ergy Organization Act, Section 301(a). 42 U.S.C. Section

7151. (Affidavit of Herman E. Roser, Manager of the Al-

buquerque Operations Office of the United States Denart-

ment of Energy [DOE], Appendix A).

In June, 1975, pursuant to the authority of the A. F.

Act, the United States executed a contract with the Rock-

well International Corporation (hereinafter Rockwell)

for the operation of the Rocky Flats Plant. Under the

cost-plus-fixed-fee contract, Rockwell was charged with

the responsibility of managing, staffing, maintaining and

operating the Rocky Flats Plant on a day-to-day basis.

The contract also provided that persons employed by

Rockwell would not be deemed employees of the Govern-

ment. In addition, it required Rockwell to obtain, at Gov-

ernment expense, workmen’s compensation coverage for

its employees at the Rocky Flats Plant. Stewart, 716 F.2d

at 759-760; (Petition, p. 37). Such coverage was obtained

and in force on the date of the accident. (Affidavit of

James A. Stout, Counsel for ERDA at the Rocky Flats

Area Office in May, 1976, Appendix B).

At the Rocky Flats Plant, a perimeter fence encloses

a secured area where work buildings, parking areas and

related structures are located. Parking Lot +50, where

Petitioner LeRoy Stewart was accustomed to parking

(Deposition of Plaintiff, LeRoy Stewart, pp. 25-26, Ap-

pendix C), is located within this area. (Affidavit of James

R. Nicks, Assistant Area Manager for Administration,

DOE, Rocky Flats Area Office, Appendix D).

At the time of the accident which is the subject of this

litigation, the Petitioner was employed by Rockwell as a

probe and cable fabricator. Stewart, 716 F.2d at 759; (Pe-

tition, p. 34). On the morning of May 20, 1976, Stewart

and his two car pool members drove to the east gate of

the enclosed plant grounds, showed their employee badges

to the guard at the guard house, and proceeded to Parking

Lot +50 where Stewart parked his car. 7d. at 759; (Peti-

tion, p. 34); (Deposition of Plaintiff, LeRoy Stewart, p.

11, Appendix C). Petitioner’s only reason for being in

the parking lot was to go to work at the Plant that morn-

ing. (Deposition of Plaintiff, LeRoy Stewart, p. 73, Ap-

pendix C).

Stewart normally worked the 7:30 a.m. shift. His

supervisor at the time of the accident, Rockwell employee

Chuck Johnson, expected Stewart and the other employees

to be ready to start work at 7:30 a.m. with their overalls

and work boots on. Stewart, 716 F.2d at 759, note 8 at

762; (Petition, pp. 34, 44, 59-60). Arriving at the Plant

at approximately 7:08 a.m. was Stewart’s usual procedure

in order to be able to start work at 7:30 a.m. (Deposition

of Plaintiff, LeRoy Stewart, pp. 15-16, Appendix C). He

would normally enter Building 750 where a enard would

again examine his employee hadge, proceed to Build-

ing 778 to change clothes in the locker room, and then enter

Building 776 where he performed his work. (Deposition

of Plaintiff, LeRoy Stewart, pp. 27-28, Appendix C).

At approximately 7:08 a.m., as Petitioner stood beside

his parked car, he was struck and injured by a vehicle

operated by a Rockwell employee “ary D. Nuss. Peti-

tioner was pinned between the two vehicles, and suffered

severe injury to both legs. In 1979, his right leg was am-

putated below the knee, a procedure necessitated by os-

teomyelitis. Stewart, 716 F.2d at 759; (Petition, p. 35).

Nuss, a Rockwell security guard under the supervision

and control of the Rockwell Plant Protection Department

(Affids it of S.G. Thomas, Plant Protection Manager,

Rockwell International Corporation, Rocky Flats Plant,

Appendix E), was making his final security check for the

midnight shift as he drove through Parking Lot +50.

It is undisputed that he was acting within the scope and

course of his employment at the time of the accident.

Stewart, 716 F.2d at 759; (Petition, pp. 35-36).

After the accident, Stewart received payments under

workmen’s compensation from The Travelers Insurance

Company, the insuror of Rockwell at the Rocky Flats

Plant. Jd. at 759; (Petition, p. 36). In October, 1976,

Stewart filed an Accidental Injury Claun For Compen-

sation with the Department of Labor and Iimployment

and, on November 8, 1978, after commencing his action in

the federal court, Petitioner signed an Election of Rem-

edies, not only listing Reckwell International as the em-

ployer, but also stating that he elected to take compen-

sation as provided in C.R.S. 1963, Chapter 81, as amended.

(Deposition of Plaintiff, LeRoy Stewart, pp. 53, 74, Ap-

pendix C). Petitioner also applied for and received Social

Security Disability Benefits. (Deposition of Plaintiff, Le-

Roy Stewart, p. 97, Appendix C).

At all times pertinent to the workmen’s compensation

procedures in this case, Petitioner has been represented

by attorneys or other representatives oj his selection.

This action was commenced by the filing on October

12, 1978, of a Complaint against the United States invok-

ing the jurisdiction of the United States District Court

based upon the Federal Tort Claims Act, 28 U.S.C. Section

1346(b) and Section 2671 et seq. In February, 1979, Plain-

tiff amended his Complaint to include Gary D. Nuss and

Rockwell International Corporation as party Defendants,

alleging negligence on the part of all three Defendants.

Res»ondents, Rockwell and Nuss, moved for summary

judgment on the basis that the action was barred by the

exclusive remedy provision of the Workmen’s Compensa-

tion Act of Colorado. Stewart, 716 F.2d at 760; (Petition,

p. 38). The United States also moved for summary judg-

ment on the basis that it was entitled to immunity as a

statutory employer under the relevant provisions of that

Act. Id. at 760; (Petition, p. 38). The District Court grant-

ed summary judgment in favor of Respondents, Nuss and

Rockwell, on March 3, 1980 and subsequently dismissed

the suit against the United States. Jd. at 760; (Petition,

pp. 38, 66-67). On appeal, the Tenth Circuit Court of Ap-

peals affirmed, treating the Motion To Dismiss under

Rule 12(b) (6), Fed. R. Civ. P., as one for summary judg-

ment. Stewart, 716 F.2d, note 4 at 760; 766 (Petition, pp.

57, 56). The Petition For Rehearing was denied on May

23, 1984. (Petition, p. 62). On August 20, 1984, the Peti-

tion For Certiorari was docketed with the Clerk of the

Supreme Court of the United States.

ray

REASONS FOR DENYING THE WRIT

I. The Workmen’s Compensation Action of Colorado

does apply to employees of Rockwell International Cor-

poration at the Rocky Flats Plant, owned in fee simple

by the United States government.

As part of his argument that the Workmen’s Com-

pensation Act of Colorado should not apply to Rockwell

employees, petitioner assumes that the Rocky Flats Plant

site is an area under exclusive federal jurisdiction. (Peti-

tion, p. 19). In fact, this is not the case. In order to secure

exclusive or concurrent jurisdiction of property within a

state’s political boundaries, the federal government must

either comply with constitutional requirements relating to

ie |

Congressional power to exercise exclusive jurisdiction

over purchased property by obtaining the consent of the

state legislature, or it must obtain a cession of legislative

authority from the state in which the land is located.

Umited States v. Gliatta, 580 F.2d 156, 158 (5th Cir. 1978).

In addition, since 1940, Congress has required that the

United States give its affirmative assent to the transfer

of exclusive or concurrent jurisdiction before such juris-

diction becomes effective. Jd. at 158. Where the United

States government desires to acquire land within a state

by purchase or condemnation, it does not need the consent

of the state; absent such consent, however, the United

States takes title as an ordinary proprietor and does not

obtain exclusive or concurrent jurisdiction. /d. at 158.

At the Rocky Flats Plant, the United States govern-

ment enjoys the status o/ a proprietor. The land on which

the injury occurred was acquired by condemnation in

1951, and there is no evidence that any consent or cession

of jurisdiction was ever acquired from or granted by the

State of Colorado. In addition, there is nothing in the

record to indicate the federal government has ever given

its consent to accept a transfer of exclusive or concurrent

jurisdiction at the Rocky Flats Plant. Absent the state’s

consent, or a cession of jurisdiction, the state’s jurisdiction

over the land is not limited, except that the state may not

exercise jurisdiction directly over the United States or

its instrumentalities. United States v. Lewisburg Area

School District, 539 F.2d 301, 307 (3rd Cir. 1976). Thus,

the jurisdiction of the State of Colorado would extend to

the employees of a private contractor, here Rockwell, en-

gaged in work at the Rocky Flats site, and the Work-

men’s Compensation Act of Colorado would be effective

as to those employees.

However, even if the site were under the exclusive

jurisdiction of the federal government, the Workmen’s

Compensation Act of Colorado would still apply to the

employees of Rockwell at the Rocky Flats Plant pursuant

to 40 U.S.C. Section 290. The text of 40 U.S.C. Section

290 is set forth in the Petition at page 68. As noted in

Begay v. Kerr-McGee Corp., 682 F.2d 1311, 1319 (9th Cir.

1982), ‘‘[t]he language of 40 U.S.C. Section 290 unambigu-

ously permits application of state worker’s compensation

laws to all United States territory within the state.” Fur-

thermore, the operation of the statute requires no affirm-

ative act on the part of a state legislature as suggested by

Petitioner. Capetola et al. v. Barclay White Co., 139 F.2d

556, 559 (3d Cir. 1943), cert. denied, 321 U.S. 799 (1944).

The Capetola court also distinguished the effect of

the statute froin one seeking to impose federal law upon

the states:

It is, of course, patent from a reading of the Act of

1936 that Congress did not thereby adopt State Com-

pensation Acts as federal law applicable to federal

territories within the exterior boundaries of the States.

But it is our opinion that the purpose and effect of

the congressional Act was to free State workmen’s

compensation laws from the restraint upon their en-

forcement theretofore existing by reason of the ex-

elusive federal jurisdiction of lands within the States

...Id. at 559 (emphasis added).

To the same effect is Travelers Insurance Co. v. Car-

dillo, 141 F.2d 362, 363 (D.C. Cir. 1944). Thus, pursuant

to 40 U.S.C. Section 290, the Colorado Workmen’s Com-

pensation Act would apply to employees of a private cor-

poration engaged in work on lands under the exclusive

jurisdiction of the United States government in Colorado.

Finally, even if the Rocky Flats Plant were under

exclusive federal jurisdiction, 40 U.S.C. Section 290 would

not have been a necessary prerequisite to the enforceability

of the Workmen’s Compensation Act at the Rocky Flats

Plant. Relevant sections of the Act were passed in sub-

stantially their current form in 1919. 1919 Colo. Sess.

Laws, Chapter 210, Sections 6, 7, 8(b), 9(b), 12, 13, 15, 18,

49. (Appendix F). The United States acquired the Rocky

Flats site in 1951 and operations commenced in 1952. (Af-

fidavit of Herman E. Roser, Appendix A). It is true that,

after a state has ceded land to the exclusive jurisdiction

of the United States, the area lies beyond a per se appli-

cation of state law. Capetola v. Parclay White Co., 139

F.2d at 558. However, ‘‘... local laws in effect at the

time of the cession of jurisdiction to the United States

continue in force im the ceded territory as federal laws

except where they are inappropriate to the changed situa-

tiou or are inconsistent with federal law.” Jd. at 558

(emphasis added). Here, there were no changed circum-

stances or inconsistencies with federal law which would

have precluded the continuing applicability of the Work-

men’s Compensation Act to activities upon this property

had exclusive jurisdiction been transferred to the federal

government.

II. Under the Workmen’s Compensation Act of Colorado,

the Petitioner’s injury was compensable and such compen-

sation under the Act is Petitioner’s exclusive remedy.

Therefore, summary judgment in favor of Respondents,

Nuss and Rockwell, was proper.

The purpose of the Workmen’s Compensation Act

(hereinafter the Act) is to provide timely compensation

to injured employees for work-related injuries, regardless

of fault, Frohlick Crane Service, Inc. v. Mack, 182 Colo.

34, 510 P.2d 891, 893 (1973), and case law has consistently

held that the Act should be liberally construed to effect

its humanitarian purposes. Deterts v. Times Publishing

Co., 38 Colo. App. 48, 552 P.2d 1033 (1976), cert. denied

(1976). In return, the employer who is responsible under

the Workmen’s Compensation Act is granted immunity

from common-law claims. C.R.S. Section 8-42-102; see

also, Frohlick Crane Service, Inc., 510 P.2d at 893.

In this case, the Act worked exactly as intended. The

United States contracted with Rockwell for the manufac-

ture of nuclear weapons components. As a part of the

operating agreement, it required Rockwell to obtain work-

men’s compensation insurance for Rockwell’s employees,

and this expense was reimbursed by the United States as

an allowable operating cost. Rockwell did obtain such

insurance and it was in force at the time of Stewart’s in-

jury. While represented by counsel, Stewart accepted and

received compensation benefits under the Act. The pay-

ment of compensation to Pet:tioner was proper, and the

Petitioner’s acceptance of such benefits precludes any

statutory or common law action against his employer or

statutory employer.

A. Petitioner’s injury is compensable under the Act

because, on the undisputed facts before the Court, tt arose

out of and in the course of his employment.

1. Injuries incurred going to and from work are

compensable where special circumstances create a causal

relationship between the employee’s injury and the em-

ployment. Woodruff World Travel, Inc. v. Industrial

Commission, 38 Colo. App. 92, 554 P.2d 705, 707 (1976),

cert. denied (1976). Furthermore, the totality of the cir-

cumstances must be examined to determine if a sufficient

nexus of this type exists. City & County of Denver School

District No. 1 v. Industrial Commission, 196 Colo. 131,

581 P.2d 1162, 1163 (1978). In State Compensation Insur-

ance Fund v. Walter, 143 Colo. 556, 354 P.2d 591 (1960),

the Supreme Court of Colorado observed:

An accident arises out of and in the course of employ-

ment of a workman when there is apparent to the ra-

tional mind, upon consideration of all the circum-

stances, a causal connection between the conditions

under which the work is to be performed and the

resulting injury. Jd. at 592.

As indicated by the Tenth Cireuit in its opinion, the

facts recited by Petitioner before that Court, Stewart,

716 F.2d at 761, and restated in this Petition (Petition, p.

8), are simply not persuasive that a factual issue remains

as to whether compensation was proper under the Act.

The undisputed facts of this case, viewed in their

totality, indicate that it clearly falls within recognized ex-

ceptions to the “going and coming” rule which permit

recovery under the Act. At the time of the accident, Pe-

titioner and his two carpool partners had passed one se-

curity check-point on the site and had entered the portion

of the plant which was within a perimeter security fence.

Then they traveled down a restricted access road and

parked in a parking lot owned by the United States and

principally used by Rockwell employees, with the knowl-

edge and approval of Rockwell. All three employees had

exited the vehicle and were preparing to walk to the build-

ing where they worked. While standing beside the vehicle,

Petitioner Stewart was struck by a vehicle driven by a co-

employee, Gary Nuss, who was performing a routine check

of the parking lot in his capacity as a Security Guard for

Rockwell. Stewart, 716 F.2d at 759. Although the occur-

rence of an injury in a parking lot is not determinative of

compensability, see generally, Matter of Welham, 653 P.2d

760 (Colo. App. 1982), the Colorado courts have found the

applicable law generally favors compensation where the

lot is on the employer’s premises and is used at the ex-

press or implied direction of the employer. Jd. at 762.

After reviewing the approaches taken by the courts of

other jurisdictions, the Supreme Court of Colorado has

adopted the trend favoring compensability:

Our . . . consideration of the holdings in other states

reveals that the main line of American decisions is

to the effect that accidents oceurring in or en route

to parking maintained on its premises or provided by

the employer for the benefit of its employees, are

compensable as arising out of and in the course of

employment, even though they may occur while the

employee is on his way to or from his place of em-

ployment and even though they occur on a _ public

roadway dividing the place of employment from the

parking lot. State Compensation Insurance Fund v.

Walter, 354 P.2d at 593.

This rationale is valid even if the employer was not

obliged by the contract of employment to furnish a park-

ing lot, and the employee was not obliged to come to work

in an automobile. Jd. at 594.

These rules have permitted compensation to be af-

firmed in cases presenting far less compelling facts than

the instant case. See, e.g., Campbell v. Gates Rubber Co.,

526 P.2d 679 (Colo. App. 1974) (where worker was in-

jured after completing her shift for the day in a slip and

fall accident which occurred while walking down a public

sidewalk toward her car parked in a lot owned and main-

tained by employer for convenience of its employees, the

injury was compensable under the Workmen’s Compensa-

tion Act, and was her sole remedy); and Kitchens v. De-

partment of Labor & Employment, 29 Colo. App. 374, 486

P.2d 474 (1971), cert. denied (1971) (where an employee

was shot while waiting in a parking lot before working

hours for a vehicle provided by the employer to transport

employees to logging operations; though the injury re-

sulted from the accidental discharge of a hunting rifle

brought by a co-employee and not required for work, it

was held to arise in the course of employment as a matter

of law.)

The positional risk approach of the Kitchens court

was succinetly stated: |

[I]n cases involving injuries of an origin not common

to a particular type of employment, if an employee’s

work positions him where he was when injured, and

if it is demonstrated that his injury would not have

occurred but for that fact, the required causal con-

nection between the employment and the injury has

been established. Jd. at 476 (emphasis in original).

Finally, in |i oodruf/ World Travel, Inc., 554 P.2d at

(07, the court extended the rule articulated in the Stale

Compensation Insurance Fund v. Walter case, and found

that, where a parking lot was owned by the employer’s

landlord, who provided free parking for the tenants’ em-

ployees, and such parking constituted an obvious fringe

benefit of which the employer was aware, an einployee

leaving work who slipped and fell on some ice while cross-

ing the parking lot was entitled to workmen’s compensa-

tion. The court ordered compensation to be paid even

though the injury occurred off the employer’s premises.

Considered in the light of these well developed excep-

tions to the “going and coming” rule, Petitioner’s injuries

are clearly compensable under the Act. The circumstanc-

es surrounding the injury present a strong and rational

causal connection to the conditions of the employment,

which placed the Petitioner in the position where he sus-

tained his injury.

2. Secondly, Petitioner has raised objections to the

award of compensation based upon the fact that Petition-

er had arrived at work early (at approximately 7:08 a.m.)

and would not be compensated for work until 7:30 a.m.

However, it is undisputed that Petitioner arrived at work

early because his supervisor expected employees to be

dressed and ready for work at 7:30 a.m. Stewart, 716 F.2d

at 762. Not only was he conferring a benefit on the em-

ployer by his early arrival, but also his conduct was

necessitated by the express instruction of the employer.

The Colorado Supreme Court has held that:

Injuries which occur to an employee while going to

or from work may be compensable when it appears

that at the time of such injuries he is engaged in do-

ing an act, or performing a duty, which he is def-

initely charged with doing as a part of his contract

of service, or under the express or implied direction

of his employer. Berry’s Coffee Shop, Inc. v. Palom-

ba, 161 Colo. 369, 423 P.2d 2, 5 (1967).

The court observed this rule had been applied even before

or after customary working hours. I/d. at 5; accord, Kit-

chens, 486 P.2d at 476.

The applicability of the Workmen’s Compensation Act

to injuries occurring on the employer’s premises prior to

the formal commencement of work was also confirmed in

Sieck v. Trueblood, 29 Colo. App. 482, 485 P.2d 134 (1971).

There an employee had arrived at his employer’s prem-

ises approximately 15 minutes before starting time. As

he was driving his own automobile across a large truck

yard in order to warm up his truck motor, he was struck

by a truck driven by a co-employee. Although there was

no company policy requiring an early vehicle warm-up, the

court held that Sieck’s injuries were compensable exclu-

sively under the Act, barring a suit against his co-em-

ployee. The court found that Sieck was acting within

the course of his employment:

‘‘The course of employment, for employees having a

fixed time and place of work, embraces a reasonable

nterval before and after official working hours while

the employee is on the premises engaged im prepara-

i |

tory or incidental acts. The rule is not confined to

activities that are necessary; it is sufficient if they|

can be said to be reasonably incidental to the work.”

Id. at 135 (emphasis added).

The court also found that Sieck’s activity fell within

the ‘‘dual purpose doctrine’’ which provides that, where

an employee performs an act of mutual benefit to himself

and his employer, it cannot be regarded as purely per-

sonal and wholly unrelated to his employment. Therefore,

even though the advantage to the employer is slight, an

injury resulting from such activity will generally be held

to he compensable, as it arises out of and in the course of

employment. /d. at 135, citing Berry’s Coffee Shop, Inc.,

423 P.2d at 5.

The court has liberally construed the ‘‘dual purpose

doctrine.” See, e.g., Deters v. Times Publishing Co., 38

Colo. App. 48, 552 P.2d 1033 (1976), cert. denied (1976).

In Deterts, the plaintiff, an afternoon newspaper carrier,

stored his bicycle in the basement of the newspaper of-

fices to prevent vandalism and theft during school hours,

a practice recognized and approved by the respondent em-

ployer. One morning when the Plaintiff was returning

from the basement where he had stored his bicycle for the

day, his foot was caught and injured in the freight ele-

vator. Reversing a denial of benefits by the referee, the

court found that bicycles were essential to the speedy de-

livery of the newspaper, and that the Times derived a

benefit by ensuring the bicycles of its carrier were secure

from theft. Jd. at 1036. In addition, the Claimant was

involved in an activity which he might reasonably be ex-

pected to undertake during the course of his employment,

and he was at a place where he could reasonably be ex-

pected to be. Jd. at 1036. Particularly apropos to this

ease is the following language of the opinion:

If an employee goes upon the premises of the em-

ployer at a reasonable time before he is to begin his

day’s work and is performing acts which have a causal

connection with his duties and from which the em-

ployer will benefit, and is injured while so engaged,

he is entitled to recover compensation. Jd. at 1037.

The recent cases cited by Petitioner, Mineral County

v. Industrial Commission, 649 P.2d 728 (Colo. App. 1982),

cert. denied (1982), Matter of Welham, 653 P.2d 760 (Colo.

App. 1982) and Colorado Civil Air Patrol v. Hagans, 662

P.2d 194 (Colo. App. 1983), all involve injuries found to

be compensable, and consistently illustrate a broad and

liberal application of the rules discussed above.

In the Mineral County case, Mineral County sought

review of a final order of the Industrial Comuinission

which awarded death benefits and funeral expenses to the

wife of the decedent, the only member of the Mineral

County Sheriff’s Department. The Industrial Commis-

sion found that special circumstances pertaining to the

decedent’s employment precluded application of the “going

and coming” rule, which normally would have barred re-

covery of benefits. Although the decedent was not actively

engaged in his official duties at the time of the accident

and, in fact, had just completed a personal errand, the

Colorado Court of Appeals found the injury compensable

and affirmed the award of the Industrial Commission for

the following reasons, inter alia: (1) the decedent was

considered to be on duty twenty-four (24) hours every

day, did not have a specified work shift, and could be

reached at home or work by a sheriff’s radio or telephone

at any time of the day or night; (2) at the time of the

accident, he was returning to an official car furnished by

the employer; and (3) the decedent was in uniform, an ap-

parent necessity in view of the unique circumstances of his

employment. 649 P.2d at 730.

a i

In the Matter of Welham case, the Petitioner sought

review of the final order of the Industrial Commission

which awarded death benefits and burial expenses to the

Claimant, the widow of a deceased employee. In order to

insure that parking would be available for customers of

the store, the employer required his employees to park in

private parking lots at some distance from the business

location. The employee, who suffered from a total hearing

loss, was struck and killed by a train as he crossed railroad

tracks while walking to the store from such a parking lot.

The court found that, due to directions from the employer,

the hazard of travel from the parking lot became a hazard

of the employment as well. The evidence presented also

indicated that, on certain occasions, the decedent had at-

tempted to park closer to the store as a result of his de-

clining health, but was reprimanded for doing so by the

employer. As a consequence, the decedent’s act of park-

ing in the municipal parking lot could not be regarded as

a “purely personal” act “wholly unrelated to his employ-

ment”; rather the employer’s parking policy brought the

act within the “dual purpose” rule articulated in the Berry’s

Coffee Shop, Inc. and Deterts cases. The court held that

a causal connection between the employee’s death and the

conditions of his employment had thereby been established,

entitling the Claimant to compensation.

The Colorado Civil Air Patrol v. Hagans case is an-

other in which special circumstances were found to pre-

clude the application of the “going and coming” rule. The

decedent was a volunteer member of the Colorado Civil Air

Patrol and was killed while traveling in a small, privately -

owned aircraft to a regularly scheduled Civil Air Patrol

meeting. Since, by statute, all members of the Civil Air

Patrol are considered to be employees, see C.R.S. Section

8-41-106(1)(a)(I)(A), the decedent was subject to the

Colorado Workmen’s Compensation Act. The Colorado

Court of Appeals concluded that among the special cir-

cumstances which would permit compensability was the

condition that an employer might agree, expressly or

impliedly, that the employment relation would continue

during the period of travel to and from work. Because

the commander of the squadron had approved the dece-

dent’s flying to such meetings, and the sole purpose of

the airplane trip was to attend the meeting, such an agree-

ment was inferred in this case, even though the travel

time and expense were not compensated by the employer.

The decedent was considered to be performing a duty

with which he was charged as a part of his contract for

service, under the express or implied direction of his em-

ployer.

Collectively, these summarized cases cited by the Peti-

tioner do not add any impetus to his arguments that the

injury was not properly compensable, but, rather, are con-

sistent with the notion that, under the circumstances of

this case, his injury arose out of and in the course of his

employment, and compensation under the Act is his sole

remedy.

Finally, the Petitioner asserts that the decisions of

the lower courts in this case erroneously presumed causal

connection under the law. In support of this proposition,

he notes two recent cases which stress that the burden of

proof is on the claimant to show a direct causal relation-

ship between the conditions of employment and the in-

jury, citing Finn v. Industrial Commission, 165 Colo. 106,

437 P.2d 542 (1968) and Kandt v. Evans, 645 P.2d 1300

(Colo. 1982). However, neither of these cases provides

support for Petitioner’s arguments. In the Jinn case, the

Claimant was found lying unconscious at his place of work

and surmised that ke had been struck by a forklift truck.

Although he had sustained several injuries, he did not

know what had happened to cause such injuries and was

unable to produce any evidence as to what had occurred.

Under those circumstances, clearly distinguishable from

the instant case, the Industrial Commission found that the

Claimant had failed to carry his burden of proof to show

the required causal relationship between the conditions of

employment and the injury, and the court affirmed the

Commission’s denial of an award.

In the Kandt case, the court considered the appli-

eability of the Workmen’s Compensation Act where an

employee brought an action against her employer for an

intentional tort committed by a co-employee. The court

held that the Workmen’s Compensation Act remained the

exclusive remedy available to the employee unless the ac-

tion constituting the tort was found to lie outside of the

co-employee’s scope of employment. However, the Plain-

tiff had failed to allege that the Defendant was acting

outside the scope of his employment. In fact, she had al-

leged in the complaint that all of Defendant’s acts were

within the scope of employment and the complaint was

never amended. Therefore, the court found that it could

not reach the issue on the merits. Kandt, 645 P.2d at 1305.

The mere fact that such an employment relationship had

been alleged by the Plaintiff was sufficient to allow the

court to affirm dismissal of the case.

In the instant case, a similar circumstance exists. Al-

though the Petitioner asserts that his injury is not com-

pensable under the Act because he and Nuss were not co-

employees, he has alleged in his Amended Complaint, and

Respondents have admitted that, at all times material to the

action, the Respondent Nuss was an employee of Rockwell.

See infra at pp. 28-29. Thus, a tort action against Nuss and

Rockwell is clearly precluded by the exclusivity provisions

of the Act if the injury is otherwise compensable under

the Act. As discussed in this section, the injury is clearly

compensable under the Act and interpretive case law.

B. Because Petitioner’s injuries were compensable

under the Act, the exclusivity provision bars any action

against the employer, Rockwell International, and Peti-

tioner’s co-employee, Gary Nuss.

C.R.S. Section 8-42-102 provides:

An employer who has complied with the provisions

of articles 40 to 54 of this title, including the provi-

sions relating to insurance, shall not be subject to the

provisions of section 8-42-101; nor shall such em-

ployer or the insurance carrier, if any, insuring the

employer’s liability under said articles be subject to

any other liability for the death of or personal injury

to any employee, except as provided in said articles;

and all causes of action, actions at law, suits in equity,

proceedings, and statutory and common law rights

and remedies for and on account of such death of or

personal injury to any such employee and accruing

to any person are abolished except as provided in said

articles.

See, e.g., Frohlick Crane Service, Inc., 510 P.2d at 893;

Campbell v. Gates Rubber Company, 526 P.2d at 680-81;

and Olveda v. United States, 508 F.Supp. 255, 258-59 (KE.

D. Tex. 1981). Petitioner simply had no option to elect

to sue the employer, Varsity Amusement Company v. But-

ters, 155 Colo. 330, 394 P.2d 603, 605 (1964), or his co-em-

ployee, Sieck v. Trueblood, 485 P.2d at 135, under the

Wor':men’s Compensation Act of Colorado.

Therefore, summary judgment entered in favor of

Respondents, Rockwell and Nuss, based on undisputed

facts before the Court, was proper. No resolution of dis-

puted facts was necessary for the Court to reach its de-

cision. See, e.g., Edwards v. Price, 191 Colo. 46, 550 P.2d

856, 857-858 (1976), appeal dismissed, 429 U.S. 1056 (1977)

(summary judgment is proper, even when factual matters

are involved, if the record indicates that factual matters

are not in dispute).

III. The United States, as a statutory employer of the

Petitioner, is entitled to immunity from suit under the

Federal Tort Claims Act pursuant to C.R.S. Section

8-48-101.

Petitioner bases his argument that the United States

does not qualify for statutory immunity on his assumption

that the Workmen’s Compensation Act of Colorado does

not apply to employees of Rockwell at the Rocky Flats

Plant, (Petition, p. 18), an assumption previously dis-

cussed in this brief, supra at pp. 5-6. He also suggests that

the United States must “elect” coverage under the stat-

ute. Not only was there no requirement under C.R.S. See-

tion 8-48-102 that the United States make such an elec-

tion, but also an amendment by the Colorado Legislature

in 1976 made it clear that no election requirement was

intended. The section, which prior to the amendment had

read, “An employer who has elected to comply and has

complied with the provisions of articles 40 to 54 of this

title,” was changed to read simply, “An employer who has

complied with the provisions of articles 40 to 54 of this

title.’ The amendment removing the reference to election

was effective on May 20, 1976, the date of the subject ac-

cident. Consequently, no election by the United States

was required.

The Federal Tort Claims Act (FTCA), 28 U.S.C. at

Section 1346(b) and Section 2674, provides that the Unit-

ed States shall be liable in the same manner and to the

same extent as a private individual under like cireum-

stances. Based on this statute, and applying the Colorado

Workmen’s Compensation Act, it is clear that the United

States, treated as a private individual, would still retain

the immunity afforded by C.R.S. Section 8-42-102. Fur-

thermore, although Petitioner asserts that there is confu-

sion regarding the liability of the United States under the

FTCA and state workmen’s compensation acts (Petition,

p. 18), careful examination of the cases reveals that,

though the results may vary from state to state, the dif-

ference is due to variation in state law, and not to any in-

consistency in the application of federal law. The two

cases cited by Petitioner, Roelofs v. United States, 501

F.2d 87 (5th Cir. 1974), and Richardson v. United States,

577 F.2d 133 (10th Cir. 1978), are perfect illustrations of

this premise. In both of these cases, an injury occurred

on federally owned land and the injured party brought an

action under the Federal Tort Claims Act.

The facts in Roelofs are similar to those in the in-

stant case. The plaintiffs were employees of the Sperry-

Rand Corporation which operated the Louisiana Army

Ammunition plant pursuant to a contract with the United

States Army. Sperry-Rand was responsible for hiring

the employees, preparing and loading the products for

shipping and, in general, performing all jobs necessary to

operate the plant. The cost-plus-fixed-fee contract obli-

gated Sperry-Rand to maintain workmen’s compensation

for the plant employees and the premiums for the insur-

ance were reimbursed by the government as a regular

contract expense.

The Roelofs court found that the United States did

qualify for immunity as a ‘‘statutory employer” under

Louisiana law, thereby enabling it to raise a defense of

nonliability under the FTCA. Furthermore, the court

held that the United States should be granted such im-

munity, even though Louisiana could not legally impose

an obligation on the United States to procure compensa-

tion insurance or to pay compensation benefits:

If we approach this with literalism the Government

cannot prevail. This is so because Louisiana cannot

impose on it a legal obligation either to procure com-

pensation insurance or to pay compensation benefits.

But this is not the history of FTCA or its generous

development by the Supreme Court. That act is

given a broad interpretation to effectuate the legisla-

tive aim of putting citizen and national sovereign in

tort claims suits on a footing of equality as between

private parties within that state. Jd. at 92.

The court found that a proper result depended upon

an examination of the purposes both of the Federal Tort

Claims Act and of the Louisiana Workers’ Compensation

statutes:

Sperry Rand, the contractor, maintain[ed] at the

Government’s expense, workmen’s compensation. Not

only was it done in fact, but presumably it was done

in accordance with established policies which have the

effect of not only relinquishing any claim to federal

territorial sovereignty over lands of the Federal en-

clave but carrying out the substantive policies of Sec-

tion 290... to assure privately employed workers on

Federal projects equal treatment with other indus-

trial laborers in the state. Thus the goals of Louisi-

ana and the United States are mutually met. The

workers have the protection in fact, that they would

have if, in addition to Sperry Rand’s insurer, they

would have the direct obligation of the Government.

On the other hand, with this assured in fact, the Gov-

ernment, having seen to it that compensation by the

contractor is afforded at the Government’s expense,

is, as would be a private Louisiana statutory employer,

entitled to the section 6 immunity ... The key finally

is the existence of adequate imsurance required and

paid for by the government. Id. at 93 (emphasis

added).

In Richardson v. United States, the Plaintiff was in-

jured while working on a federal military installation for

a subcontractor responsible for doing sand blasting at the

reservation. Both the subcontractor and the general con-

tractor were required by the United States to maintain

workmen’s compensation insurance which could not be

cancelled without prior notice to the United States. In

Plaintiff’s action against the United States brought under

the Federal Tort Claims Act, the court found that the

Florida law of workmen’s compensation would control the

action pursuant to 40 U.S.C. Section 290. However, the

Court held that, under Florida law, the exclusivity defense

of the workmen’s compensation laws would be availiable

only to one who had a duty to provide workmen’s com-

pensation coverage and, secondly, that the United States

in this case had no such duty, because it was neither an

employer nor a contractor within the meaning of the

Florida statutes controlling the action. Richardson, 577

F.2d at 135-136. The United States was not a direct em-

ployer of the plaintiff, nor was it a contractor under the

statute because it had no direct contractual relationship

with plaintiff’s employer, a subcontractor for the job.

Rather, under the Florida statute, the United States was

an ‘‘owner’’ who could be sued by an injured workman if

the owner were alleged to be a third-party tortfeasor;

thus, an action by the plaintiff under the Federal Tort

Claims Act was proper. In addition, the Richa~!son court

distinguished the case of Roelofs v. Umited States, noting

that the Louisiana workers’ compensation act was much

broader than the Florida statute being considered by the

Tenth Circuit.

Colorado, like Louisiana, can impose no legal obliga-

tion on the United States to procure insurance or to pay

compensation benefits. Nonetheless, the United States

has chosen to comply with the Act by requiring that its

contractor, Rockwell, insure its liability for compensation

as required under the Act. The Act specifies no require-

ment that the contracting party have a duty to insure to

obtain the benefit of the statutory-employer immunity. It

simply says that such a party shall be construed to be an

employer, and shall insure and keep insured its liability,

or require its contractor to do so. Having complied with

this insurance provision, without any requirement for

election, the employer is granted immunity under the sta-

tute. C.R.S. Section 8-42-102.

Prior cases have consistently held that the United

States qualifies as a statutory employer under C.R.S. Sec-

tion 8-42-102. Scanlon v. U.S., Civil No. 78-F-509 (D.

Colo., June 21, 1979) as discussed in Olveda v. United

States, 508 F.Supp. at 259. Both of these cases involved

injuries to employees of the prior contractor at the Rocky

Flats Plant. In both cases the United States had pur-

chased workmen’s compensation insurance through the

Plaintiff’s employer, the contractor, as an allowable and

required expense pursuant to the terms of the operating

agreement between the United States and the contractor.

And in both eases, the United States was held to be im-

mune as a statutory employer from the tort suit filed by

the Plaintiff because it had complied with the require-

ments of state law, and could not, if it were a private

individual, be held liable under like circumstances. /d.

at 259-260. Indeed, the Olveda court observed that the

purposes of protecting the injured employee from the

financial insolvency or the uninsured status of the con-

tractor had been fulfilled by the compliance of the United

States with the Workmen’s Compensation Act and con-

cluded :

There is no reason in law or logic to treat the United

States any differently [than a private general con-

tractor entitled to immunity] and the Colorado Courts

have so held. Jd. at 260.

Although Petitioner argues that the United States

should not enjoy the immunity of a statutory employer,

the Court of Appeals found that he had failed to state any

reason for such a result. Stewart, 716 F.2d at 765. In-

deed, his arguments would appear to lead to inconsistency

and confusion in the application of the state workmen’s

compensation laws to federal enclaves. If it is the ‘‘very

nature of the production of nuclear weapons which man-

dates that respondent United States be the employer with

control over production, facilities and personnel” (Peti-

tion, p. 19), by what criteria can the United States predict

which of its multifarious activities will subject it to dis-

qualification as a statutory employer? Rather the key

fact here, as suggested by the Court in Roelofs, is the

existence of adequate insurance required and paid for by

the government.

Petitioner also asserts that there is no authority

which indicates that the United States would be directly

liable to pay benefits if no compensation coverage were

provided by the contractor. However, at least one court

has held that, where the United States and its contractor

at a nuclear site failed to secure compensation coverage

for occupational disease, the employee could assert his

‘‘statutory-employee” status offensively and sue the

United States under the Federal Tort Claims Act. Pres-

cott v. United States, 523 F.Supp. 918, 929-933 (D.C. Nev.

1981), aff’d on other grounds, 731 F.2d 1388 (9th Cir.

1984). Resolution of this question was based on construc-

tion of the applicable Nevada workmen’s compensation

laws and occupational disease acts, and a finding by the

court that the specialized activities of the United States,

such as nuclear testing, should not preclude normal appli-

cation of the Federal Tort Claims Act and applicable

state laws. Id. at 929.

The United States does qualify as a statutory em-

ployer under the requirements imposed by the statute,

C.R.S. Section 8-48-101(1) which provides that ‘‘. . . any

person engaged in or conducting any business by leasing

or contracting out any part or all of the work thereof

to any lessee, sub-lessee, contractor or sub-contractor...

shall be construed to be an employer as defined in articles

40 to 54 of this title.” Nowhere is a narrow definition of

the term, ‘‘person”, prescribed. To the contrary, the Colo-

rado courts have focused on requirements that the work

so contracted must be (1) a part of the normal business

of the person or company contracting out such business

and (2) business which the company would ordinarily ac-

complish with its own employees; that is, whether, absent

the contractor’s services, the service would of necessity

be provided by the employer’s own employees. Campbell

v. Black Mountain Spruce, 677 P.2d 379 (Colo. App. 1983),

cert. denied (1984).

The fact that the production of nuclear weapons com-

ponents is a highly specialized and regulated manufactur-

ing process does not preclude it from qualifying as a

normal part of the business of the United States govern-

ment. See generally, Prescott v. United States, 523 F.

Supp. at 929. Clearly, Congress has provided for such

production as a validly exercised governmental function

of the United States and, absent the use of private sec-

tor contractors, employees of the United States would

undoubtedly be required to perform these services. Stacey

v. United States, 270 F.Supp. 71, 74 (E.D. La. 1967). The

United States has complied with all applicable require-

ments of the statute and the purposes of the Workmen’s

Compensation Act of Colorado are best served by finding

that the United States does qualify as a statutory em-

ployer.

Petitioner also argues that the United States could

not enter into a “normal contract” (Petition, p. 19) due

to the nature of the production involved, citing 42 U.S.C.

Section 2061. The contract between Rockwell and the

United States Government, in effect at the Rocky Flats

Plant at the time of the injury, has been described as a

government-owned, contractor-operated management con-

tract. This type of contract, though admittedly unique, has

been recognized since the time of the enactment of the

Atomic Energy Act of 1946. In fact, in reporting the bill,

the Senate Committee noted:

Whenever possible, the Committee endeavors to rec-

oncile Government monopoly of the production of

fissionable material with our traditional free-enter-

prise system. Thus the bill permits management con-

tracts for the operation of Government-owned plants

so as to gain the full advantage of the skill and ex-

perience of American industry.

S. Rep. No. 1211, 79th Cong. 2d Sess. 15 (1946).

Moreover, the utilization of the management contract

concept has been rezognized by the United States Supreme

Court. In the case of Carson v. Roane-Anderson Co., 342

U.S. 232 (1952), the Court noted:

The use of private contractors is therefore one of the

ways in which [the AEC] is authorized to manage its

affairs. Its activities may, in other words, be per-

formed by it directly or through the agencies of pri-

vate enterprise. 342 U.S. at 235.

The Court also observed the following:

Congress uses the word ‘‘activities” in various sec-

tions of the Act, and seems each time ¢a give it a broad

sweep... . In none of these sections do we find any

suggestion that ‘activities’ is used in a narrow sense

to describe less than all of the functions of the Com-

mission. The meaning of ‘activities’ as applied either

to an individual or to a government agency may be

broad enough to include what is done through inde-

pendent contractors as well as through agents. Cer-

tainly where the pattern of conduct visualized by the

Act is the use of independent contractors or agents

from the field of private enterprise, the inference

is strong that ‘“‘activities” means all authorized meth-

ods of performing the governmental function. 342

U.S. at 235-236.

Examination of the cited statute, 42 U.S.C. Section

2061, reveals that it provides specifically for the Atomic

Energy Commission (now the Department of Energy,

herein DOE) ‘‘to produce or to provide for the produc-

tion of special nuclear material in its own production

facilities through contracts with persons obligating them

to produce special nuclear material in facilities owned by

the Commission.” 42 U.S.C. Section 2061(b). Nothing

in the statute indicates that the term, “contracts”, should

be given a meaning which would negate or impair the ob-

ligations of a contractual relationship between the United

States and Rockwell.

IV. The United States was not the employer of Gary D.

Nuss but, assuming for the sake of argument that it

were, still the Petitioner would not be entitled to pursue

a Federal Tort Claims Act suit.

The Petitioner has alleged (Amended Complaint, p.

3) and Respondents have admitted (Answer to Amended

Complaint, p. 2) that “at all times material herein, De-

fendant Gary D. Nuss was an employee of Defendant

Rockwell International Corporation and at the time of

this occurrence was acting within the course and scope of

his employment.” However, Petitioner argues that the

special powers conferred on Nuss pursuant to 42 U.S.C.

Section 2201(k) make him an express employee and agent

for the Respondent United States. The question raised by

Petitioner’s argument is whether his status as an employee

of Rockwell is materially altered by these powers, and

whether the purposes of the Workmen’s Compensation Act

of Colorado would be furthered by such a finding.

The provision cited by Petitioner clearly distinguishes

between ‘‘members, officers and employees” of the Atomic

Energy Commission (now DOE) and “employees of its

contractors engaged in the protection of property owned

by the United States.” 42 U.S.C. Section 2201(k). Congress

clearly intended to differentiate between the two types of

employees, a distinction which Petitioner would ask this

Court to override on the basis of neither cited precedent

nor compelling public policy. Furthermore, such a blur-

ring of employment status would defeat one of the main

purposes of the Colorado Workmen’s Compensation Act,

namely, to provide timely compensation benefits, by cre-

ating a need for litigation to determine the employment

status of private contractors’ employees on federal lands

or enclaves. Such an outcome would also inhibit the ef-

fectiveness of 40 U.S.C. Section 290, the purpose of which

was to ensure that the employees of private contractors

working on federal reservations are qualified to receive

the same compensation under a state’s workmen’s com-

pensation act that they would receive if they were working

on property not owned by the federal government.

Finally, if, as Petitioner argues, the “very nature of

the production” (Petition, p. 19) mandates that the Re-

spondent United States be deemed the employer, the logi-

cal conclusion would be that the United States was the

direct employer not only of Gary Nuss, but also of pro-

duction workers, including Leroy Stewart. In that case,

Petitioner Stewart’s remedies would be under the appro-

priate federal statute covering injuries to federal em-

ployees, for example, the Federal Employees’ Compensa-

tion Act, 5 U.S.C. Section 8101 et seq., rather than an

action under the FTCA.

ry.

CONCLUSION

There was no error in the rulings made by the dis-

trict court or in the affirmance of those determinations

by the Tenth Cireuit Court of Appeals. The Petition for

a Writ of Certiorari is without merit and should be denied.

Respectfully submitted,

James E. Expiott, Jr.

Brice A. Tonpre

THE ELLIOTT LAW OFFICES

4465 Kipling Street, Suite 200

Wheat Ridge, Colorado 80033

Telephone: (303) 424-5319

Attorneys for Respondents

Gary D. Nuss

Rockwell International Corporation

App. 1

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 78-K-1061

LEROY STEWART,

Plaintiff,

vs.

UNITED STATES OF AMERICA, GARY D. NUSS

AND ROCKWELL INTERNATIONAL

CORPORATION, a Delaware Corporation,

Defendants.

AFFIDAVIT IN SUPPORT OF DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT

State of New Mexico

County of Bernalillo

HERMAN E. ROSER, being first duly sworn, de-

poses and says:

1. Since June 16, 1975, I have been Manager of the

Albuquerque Operations Office (ALO) of the United

States Department of Energy (DOE), formerly the En-

ergy Research and Development Administration (ERDA),

formerly the Atomic Energy Commission (AEC). From

September 1, 1972, until June 16, 1975, I served in the

position of Deputy Manager, ALO. From November 1, _

1968, until September 1, 1972, I was assistant Director

of the Division of Military Application in the Washington

Headquarters of the AEC, the predecessor agency to

App. 2

ERDA and DOE. From 1961 until November 1, 1968, I

held, in succession, the positions of Assistant Area Man-

ager for Communxity Affairs, Deputy Manager and Area

Manager in the Los Alamos Area Office of AEC, a field

office under ALO. From 1948 until joining AEC in 1961,

I was employed by the Zia Company, a management con-

tractor of AEC in Los Alamos, New Mexico.

2. AEC was created as an independent agency of

the United States Government by the Atomic Energy Act

of 1946 (Public Law 79-585) and continued under the

Atomic Energy Act of 1954 (Public Law 83-703; 42 U.S.

C.A. §§ 2011-2021). Under the Energy Reorganization Act

of 1974, Public Law 93-438, AEC was abolished and certain

of its functions, including all of the activities of ALO,

were transferred to ERDA. The effective date of the

transfer of functions from AEC to ERDA was January

19, 1975. Under the Department of Energy Organization

Act, Public Law 95-91, ERDA was abolished and all of its

functions, ineluding all of the activities of ALO, were

transferred to DOE. The effective date of the transfer

of functions from ERDA to DOE was October b, 3977.

The primary function of ALO under AEC, under ERDA,

and now under DOE, has been and is the conduct of re-

search, development, and production of nuclear weapons

for national defense to the extent authorized by the Pres-

ident of the United States in accordance with Section 6

of the Atomic Energy Act of 1946 and Section 91 of the

Atomic Energy Act of 1954 (42 U.S.C.A. § 2121).

3. In 1951, the United States acquired in fee simple

approximately 2,500 acres of land located near the town

of Golden in Jefferson County, Colorado, and caused to be

constructed thereon certain production facilities and re-

——————————

App. 3

lated buildings and structures commonly known and here-

inafter referred to as the “Rocky Flats Plant.” Subse-

quent to 1951 and continuing until the present time, the

United States has caused additional production facilities

and related structures to be added to the Rocky Flats

Plant. At the present time, as the result of Government

acquisition and construction programs, the Rocky Flats

Plant consists of approximately 6,500 acres of land and

approximately 95 buildings and structures, all of which

are owned in fee simple by the United States.

4. In 1952, AEC entered into a “management con-

tract” or “operating contract” with the Dow Chemical

Company under which contract Dow managed and op-

erated the Rocky Flats Plant for AEC from July 1, 1952,

through June 30, 1975. Beginning July 1, 1975, and con-

tinuing until the present time, Rockwell International has

operated the Rocky Flats Plant under contract with

ERDA/DOE. Contract No. AT(29-2)-3533 with Rock-

well International is attached hereto as Exhibit A*, a

true and correct copy of the provisions of Articles I-XL,

Appendix B*—“SCOPE OF WORK,” and Appendix C*—

“SPECIAL BANK ACCOUNT AGREEMENT.”

5. The administration of the AEC/ERDA manage-

ment contract with Rockwell International is the respon-

sibility of ALO, acting through the Rocky Flats Area Of-

fice, a subordinate AEC/ERDA/DOE field office located

at the Rocky Flats Plant. The contract administration

activities of the Rocky Flats Area Office are carried out

by approximately 60 Government employees under the

* Exhibits A, B and C, which are voluminous, are not included

here.

App. 4

general supervision of the Area Manager who reports di-

rectly to the Manager, ALO.

6. Under the Contract, Rockwell International is

obligated to manage, staff, and operate the Rocky Flats

Plant for the purpose of developing and producing weap-

ons components, assemblies, and ancillary equipment, as

well as other work related to the mission of the Rocky

Flats Plant. (Appendix B—“SCOPE OF WORK”.) Ar-

ticle XXV of the Contract provides that the Contractor is

responsible for safeguarding Restricted Data, Formerly

Restricted Data, and other classified information and pro-

tecting against sabotage, espionage, loss, and theft of ma-

terial in the Contractor’s possession. Under the Atomic

Energy Act of 1954, as amended, 42 U.S.C.A. § 2201(i),

the United States has the authority to prescribe such

regulations or orders as it may deem necessary to guard

against the loss or diversion of special nuclear material

such as is handled by Rockwell International at the Rocky

Flats Plant.

7. The Government provided directly from the Unit-

ed States Treasury through a method known as “ad-

vanced funding,” all of the funds necessary for the per-

formance of the work at the Rocky Flats Plant under the

Contract. No funds were provided or required to be pro-

vided by Rockwell International. As consideration for

performance of their obligations under the Contract, the

Government paid Rockwell International a fixed fee. All

tangible personal property of every kind and description

used in the performance of the work under the Contract

was the property of the Government and no property of

Rockwell International was used or required to be used

in the work.

App. 5

8. AKC/ERDA had the contract right to exercise

varying degrees of control over the management of the

production and development activities at the Rocky Flats

Plant through the issuance of appropriate plans, specifi-

cations, standards, and directives in various functional

areas as provided in the Contract, including but not lim-

ited to property management, safety, health, and fire pro-

tection, security guidelines, personnel policies, and rec-

ords management. The day-to-day supervision of em-

ployees and management of the Rocky Flats Plant was

the responsibility of Rockwell International under the

Contract.

/s/ Herman E. Roser

SUBSCRIBED AND SWORN TO before me this 30th

day of August, 1979.

/s/ Laverne EK. Scorr

Notary Public

My Commission Expires

December 14, 1980

App. 6

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 78-K-1061

LEROY STEWART,

Plaintiff,

vs.

UNITED STATES OF AMERICA, GARY D. NUSS

AND ROCKWELL INTERNATIONAL

CORPORATION, a Delaware Corporation,

Defendants.

AFFIDAVIT IN SUPPORT OF DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT

State of New Mexico

County of Bernalillo

JAMES A. STOUT, being first duly sworn, on oath

states:

1. I am currently Assistant Chief Counsel in the

Office of Chief Counsel of the Albuquerque Operations

Office (ALO) of the United States Department of En-

ergy. In 1976, at the time of the accident which is in

question, I was the Counsel for the Government, at that

time, the Energy Research and Development Adminis-

tration (ERDA), at the Rocky Flats Area Office.

2. In my capacity as Counsel at the Rocky Flats

Area Office, I was familiar with the contract between

the United States and Rockwell International for the

management and operation of the Rocky Flats Plant. Un-

der the terms of the contract and applicable AEC Pro-

curement Regulations, Rockwell International was re-

App. 7

quired to carry workmen’s compensation insurance for

the protection of its employees. A true and correct copy

of Policy Number TW-UB-1327851-9-75, the Workmen’s

Compensation and Employers’ Liability Policy with the

Travelers Insurance Companies, is attached hereto as

Exhibit A*. The policies of the Atomic Energy Commis-

sion concerning the requirements applicable to cost-type

management contractors, such as Rockwell International,

pertaining to workmen’s compensation coverage are set

forth in the Atomic Energy Commission Procurement Reg-

ulations (AECPR) Subpart 9-12.53 et seq., which are at-

tached hereto as Exhibit B.*

3. Coverage under Policy Number TW-UB-133T

851-9-75 was in effect in 1976 at the time of the subject

accident. Claims made for work-related accidental in-

juries were processed under the policy with Rockwell In-

ternational by The Travelers Insurance Companies.

/s/ James A. Stour

SUBSCRIBED AND SWORN TO before me this 7th day

of September, 1979.

/s/ R. A. Marquez

Notary Public

My Commission Expires

9-23-81

* Exhibits A and B are not included.

App. 8

APPENDIX C

EXCERPTS OF THE DEPOSITION OF PLAINTIFF

LEROY STEWART TAKEN AUGUST 3, 1979

1. Pp. 25-26 (begin Line 20)

Q. In your Answers to Interrogatories, you indicate

that you and your car pool members had generally agreed

to park in parking lot 50 because it was the closest park-

ing lot to your place of work; is that correct?

A. Yes, to everybody’s in the pool, car pool.

2. P.11 (begin Line 19)

Q. And did you go on Indiana to the entrance for the

east entrance to the plant?

A. Yes.

Q. Okay. And I take it, then, you entered the plant

on that particular morning through the east gate?

A. Yes.

3. P.73 (begin Line 3)

Q. Okay. On May 20th, 1976, your only reason for

being in parking lot 50 was because of your employment

at Rocky Flat, is that correct? You had no other purpose,

in other words, for going out there on that given morn-

ing?

A. No.

Q. Is that correct?

A. Yes.

4. Pp. 15-16 (begin Line 2)

App. 9

Is that correct?

A. When I looked at my watch, it was about 7:08.

Q. 7:08?

A. Right.

Q. And then you—

A. That’s the time I arrived at the parking lot.

Q. Was 7:08?

A. Yes.

Yes. I generally look at my watch before I go—

Q. Was this pretty much the time that you and mem-

bers of your car pool generally arrived at the plant in the

mornings when you were driving in your car pool ar-

rangement?

A. Approximately.

Q. Okay. So this was nothing out of the ordinary on

that particular day, it was about the time, give or take a

few minutes, that you would have arrived in the car pool?

Is that a fair statement?

A. I would say it was close.

5. Pp. 27-28 (begin Line 13)

Q. Okay. Let me ask the question this way, perhaps

we can get it: If the accident had not occurred on May

20th of 1976, can you describe for us, including the identi-

fication of the buildings and the other identification of

areas you would have entered, what you would have done,

what your routine was that you would have followed if

you hadn’t been in the accident?

App. 10

A. Okay I would have gone through the 750 guard-

post—

Q. That’s the 750 building?

A. Right.—to the locker room of 78 to get dressed,

through 78 building to 76 to my—to where the work area

was.

Q. All right.

6. P.53 (begin Line 15)

Q. All right At the time of—strike that. On Oc-

tober 2nd of 1976, Mr. Stewart, the records of the Depart-

ment of Labor and Employment, Division of Labor, Work-

man’s Compensation Section, indicate that you filed an

Accidental Injury Claim For Compensation. Number one,

did you file such a claim for compensation on or about

that day?

A. May I see the claim?

Q. Yes, sir, certainly.

A. Yes.

7. Pp. 74-75 (begin Line 16)

Q. Okay. Mr. Stewart, I’m going to hand you De-

fendants’ Deposition Exhibit I, which purports to be a

document called And Election of Remedies, and it’s also a

two-page document in that attached to Exhibit I is a letter

transmitting that Election of Remedies to a Mr. Martinez

at Travelers Insurance Company, and I’d ask you to look

at both those documents and then I’ll ask you questions

concerning them. Have you had a chance to examine

those documents comprising Exhibit I, Mr. Stewart?

A. Yes.

App. 11

Q. The first document entitled ‘‘Election of Reme-

dies,’’ that is, the first page of Exhibit I, is—has the same

heading, that is, the name Leroy Stewart versus Rockwell

International and the Travelers Insurance Company, as

your Workman’s Compensation case, does it not?

A. Yes.

Q. And the information contained in that indicates

that you were electing, at the time this document was pre-

pared, to take compensation and such other benefits, in-

cluding death benefits, as provided by the Compensation

Act, is that correct?

A. Yes.

Q. All right. And under the blank, “The name and

address of persons who caused the accident are,’’ colon,

there is inserted the name Gary D. Nuss, is that correct?

A. Yes. : t

Q. And tht gives his address as ‘‘Care of Rockwell

International, Rocky Flats Plant,’’ correct?

A. Yes.

Q. And the date of this document is November 8th,

of 1978, is that correct?

A. Yes.

8. P.97 (begin Line 13)

Q. Mr. Stewart, in your testimony, you indicated

that you did apply for and you received Social Security

disability benefits, is that correct?

A. Yes.

App. 12

Q. According to the documents in the file, they de-

termined your disability as of November, 1976, and indi-

cated that you would be receiving on a monthly basis at

that time a payment of $457.50. Do you recollect that as

being the monthly amount that you received from Social

Security?

A. That seems approximately right.

App. 13

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 78-Ix-1061

LEROY STEWART,

Plaintiff,

¥.

UNITED STATES OF AMERICA, GARY D. NUSS,

AND ROCKWELL INTERNATIONAL

CORPORATION, a Delaware Corporation,

Defendants.

AFFIDAVIT IN SUPPORT OF DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT

State of Colorado

County of Jefferson

JAMES R. NICKS, being first duly sworn, deposes

and says:

1. Since December, 1973, until the present, I have

been employed as Assistant Area Manager for Adminis-

tration by the U.S. Department of Energy and its pre-

decessor agencies at the Rocky Flats Plant. From July,

1973, until December 1973, when I assumed my present

position, I was Chief, Administrative Branch for the

Atomie Energy Commission at Rocky Flats.

2. My duties as Assistant Area Manager for Ad-

ministration require that I oversee the day-to-day admin-

istration of the contract activities of the various con-

tractors at the Plant site. I am well acquainted with the

Contract (Contract No. AC04-76DP-03533 between the

App. 14

United States and the Rockwell International Corporation

for the management and operation of the Rocky Flats

Plant.

3. Under the provisions of the Atomic Energy Act

of 1954, as amended, Section 43, (42 U.S.C. 2063) the

Atomic Energy Commission was authorized to purchase

any interest in facilities for the production of special

nuclear materials, or in real property on which such facil-

ities were located. In pursuance of this authority, the

United States has acquired approximately 6,500 acres of

land in Jefferson County, Colorado, since 1951. This

area comprises the Rocky Flats Plant site.

4. I am familiar with the facts of the accident in-

volving LeRoy Stewart on May 20, 1976, in the parking

area No. 50 which is adjacent to Building 750. The park-

ing area in question is included within the Rocky Flats

Plant perimeter fence. It was part of the original land

acquisition made in 1951. As such, it constitutes a part

of the Rocky Flats Plant premises.

5. Rockwell employees, U.S. Government employees

and other contractor employees at the plant site all utilize

the parking areas provided on the plant premises. Rock-

well, however, as the management contractor under its

contract with the United States, is responsible for the

day-to-day administration of the parking areas.

/s/ James R. Nicks

SUBSCRIBED AND SWORN TO before me this 7th day

of September 1979.

/s/ Evetyn R. Peacock

My Commission expires

November 2, 1981

App. 15

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 78-K-1061

LEROY STEWART,

Plaintiff,

UNITED STATES OF AMERICA, GARY D. NUSS,

AND ROCKWELL INTERNATIONAL

CORPORATION, a Delaware Corporation,

Defendants.

AFFIDAVIT IN SUPPORT OF DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT

State of Colorado

County of Jefferson

SAMUEL G. THOMAS, being first duly sworn, de-

poses and says:

1. Since August 12, 1974 to the present, I have been

employed as Manager of Plant Protection by the Dow

Chemical Company from August, 1974 to July, 1975 and

by Rockwell International Corporation since it became the

operating contractor in July, 1975 at the Rocky Flats

Plant, Jefferson County, Colorado.

2. From July, 1969 to August 12, 1974, I was em-

ployed as security operation supervisor by the Dow Chem-

ical Company at the Rocky Flats Plant, Jefferson County,

Colorado. Prior to July, 1969, I was manager of plant

security at ACF Industries, Albuquerque, New Mexico.

iis

App. 16

3. My duties in both positions described in para-

graphs 1 and 2 above have required that I be involved in

the planning and coordinating of all plant security opera-

tions, including both the day-to-day activities as well as

the special plant security activities such as those related

to demonstrations which have occurred at the Rocky Flats

Plant from time to time during my tenure there.

4. In my capacity as Manager of Plant Protection

for Rockwell International, I am familiar with the Con-

tract (Contract No. AT(29-2)-3533) between Rockwell In-

ternational and the United States Government concerning

the management and operations of the Rocky Flats Plant.

I am aware that as a provision of the Contract Rockwell

International is responsible for the employment of all per-

sonnel engaged by Rockwell to perform its work under the

Contract at Rocky Flats. Persons employed by Rockwell

International at the Rocky Flats Plant are employees of

Rockwell International, and are not employees of the

United States Government.

). Asa term of the Contract, Rockwell International

is responsible for the security of the Rocky Flats Plant.

While there are general ERDA/DOE guidelines for the

qualifications and training of security guards, Rockwell

International is responsible for the management and per-

formance of the security operations at the Plant. A true

and correct copy of the ‘‘Rockwell International Plant

Protection Department, Security Inspector Training

Plan’’ is attached hereto as Exhibit A.* All security per-

sonnel charged with protecting facilities and material at

Rocky Flats are employees of Rockwell International.

* Exhibit A, because of its voluminous nature, is not included.

——————

App. 17

They are under the day-to-day supervision and control of

Rockwell supervisory personnel. Daily guard schedules

and guard routes are planned and implemented by Rock-

well International personnel in conformance with the gen-

eral policy of Plant security.

6. Gary D. Nuss, a Rockwell Security Guard at the

Rocky Flats Plant, was performing duties for the Rock-

well International Plant Protection Department at the

time of the accident involving LeRoy Stewart. He was

under the direct supervision of Rockwell Plant Protection

Department employees and was not supervised in any way

by United States Government employees.

/s/ Samvue.t G. THOMAS

SUBSCRIBED AND SWORN TO before me this 7th day

of September 1979.

/s/ LaVonne P. Rents

Notary Public

My Commission expires

1-24-81

App. 18

APPENDIX F

1919 COLORADO SESSION LAWS

CHAPTER 210

WORKMEN’S COMPENSATION

INDUSTRIAL COMMISSION —POWER—DUTIES

Section 6. Te term ‘‘place of employment’’ shall

mean and include every place whether indoors or outdoors

or underground, and the premises, work places, works and

plants appertaining thereto or used in connection there-

with, where either temporarily or permanently any indus-

try, trade or business is carried on, or where any process

or operation directly or indirectly relating to any indus-

try, trade or business is carried on, or where any person

is directly or indirectly employed b y another for direct or

indirect gain or profit, except as otherwise expressly pro-

vided in this act.

Section 7. The term ‘‘employment” shall mean and

include any trade, occupation, job or position, or process

of manufacture or any method of carrying on any such

trade, occupation, job or position or process of manufac-

ture in which any person may be engaged, except as other-

wise expressly provided in this act.

Section 8. The term ‘‘employer’’ shall mean and in-

clude:

(b) Every person, association of persons, firm and

private corporation (including any public service corpora-

tion), personal representative, assignee, trustee or re-

ceiver, who has four or more persons engaged in the same

business or employment (except as otherwise expressly

provided in this act), in service under any contract of

hire, express or implied, and who, at or prior to the time

App. 19

of the accident to the employe for which compensation is

claimed under this act, has elected to become subject to

the provisions of this act, and who shall not, prior to such

accident, have effected a withdrawal of such election in

the manner provided in this act.

Section 9. The term “employe” shall mean and in-

clude:

(b) Every person in the service of any other person,

association of persons, firm, private corporation, includ-

ing any public service corporation, personnel representa-

tive, assignee, trustee, or receiver, under any contract of

hire, express or implied, including aliens and also includ-

ing minors, whether lawfully or unlawfully employed (who

for the purpose of this act shall be considered the same,

and shall have the same power of contracting with respect

to their employment, as udult employes), but not including

any persons who are expressly excluded from this act or

whose employment is but casual and not in the usual

course of trade, business, profession or occupation of his

employer.

ABROGATION OF DEFENSE

Section 12. In an action to recover damages for a

personal injury sustained by an empl ve on and after the

first day of August, 1915, while engaged in the line of his

duty as such, or for death resulting from personal injuries

so sustained, in which recovery is sought upon the ground

of want of ordinary care of the employer, or of the of-

ticer, agent or servant of the employer, it shall not be a

defense:

(a) That the employe, either expressly or impliedly,

assumed the risk of the hazard complained of as due to

the employer’s negligence.

App. 20

(b) That the injury or death was caused, in whole or

in part, by the want of ordinary care of a fellow servant.

in part by the want of ordinary care of the injured em-

ploye where such want of care was not wilful.

Section 13. Any employer who has elected to and has

complied with the provisions of this act, including the pro-

visions relating to insurance, shall not be subject to the

provisions of Section 12 of this act; nor shall such em-

ployer be subject to any other liability whatsoever for the

death of or personal injury to any employe, except as in

this act provided; and all courses of action, actions at law

suits in equity, and proceedings whatever, and all statu-

tory and common law righ‘s and remedies for and on ac-

count of such death or personal injury to any such em-

ploye are hereby abolished except as in this act provided.

RIGHT TO COMPENSATION—EXCLUSIVE WHEN

Section 15. The right to the Compensation provided

for in this act, in lieu of any other liability whatsoever, to

any and all persons whomsoever, for any personal injury

accidentally sustained or death resulting therefrom, on

and after August 1st, 1915, shall obtain in all cases where

the following conditions occur :

(a) Where, at the time of the accident, both em-

ployer and employe are subject to the provisions of this

act; and where the employer has complied with the provi-

sions thereof regarding insurance.

(b) Where, at the time of the accident, the employe

is performing service arising out of and in the course of

his employment.

App. 21

by accident arising out of and in the course of his employ-

ment, and is not intentionally self-inflicted.

Section 18. Any employe may become subject to the

provisions of this act, and shall be deemed to have ac-

cepted, and shall be subject to the provisions thereof, if at

the time of the accident upon which liability is claimed—

(a) His employer is subject to the provisions of this

act and has complied with the requirements thereof, in-

cluding Insurance; and if,

(b) Such employe shall not, at the time of entering

into his contract of hire, expressed or implied with such

employer, have given to his employer notice in writing

that he elects not to be subject to the provisions of this

act.

CONTRACTORS AND LESSEES.

Section 49. Any person, company or corporation op-

erating or engaged in or conducting any business by leas-

ing, or contracting out any part or all of the work thereof

to any lessee, sublessee, contractor or subcontractor, shall

irrespective of the number of employes engaged in such

work, be construed to be and be an employer as defined in

this act and shall be liable as provided in this act to pay

compensation for injury or death resulting therefrom to

said lessees, sublessees, contractors and subcontractors

and their employes, and such employer as in this section

defined shall, before commencing said work insure and

shall keep insured his liability as herein provided and such

lessee, sublessee, contractor or subcontractor, as well as

any employe of such lessee, sublessee, contractor or sub-

contractor, shall each and all of them be deemed employes

App. 22

as defined in this act. Such employer shall be entitled to

recover the cost of such insurance from said lessee, sub-

lessee, contractor, or subcontractor, and may withhold and

deduct the same from the contract price or any royalties

or other money due, owing or to become due said lessee,

sublessee, contractor, or subcontractor; provided, how-

ever, that if said lessee, or sublessee, contractor or sub-

contractor doing any work as in this section provided

shall himself be an employer as defined in this act in the

doing of such work and shall before commencing said

work insure and shall keep insured his liability for com-

pensation as herein provided then and in that case such

person, company or corporation operating, engaged in, or

conducting said business shall not be subject to the provi-

sions of this section.

App. 23

APPENDIX G

MATERIAL STATUTORY PROVISIONS

Colorado Revised Statutes

8-42-102. Liability of employer complying. An em-

ployer who has complied with the provisions of articles

40 to 54 of this title, including the provisions relating to

insurance, shall not be subject to the provisions of section

8-42-101; nor shall such employer or the insurance carrier,

if any, insuring the employer’s liability under said articles

be subject to any other liability for the death of or per-

sonal injury to any employee, except as provided in said

articles; and all causes of action, actions at law, suits in

equity, proceedings, and statutory and common law rights

and remedies for and on account of such death of or per-

sonal injury to any such employee and accruing to any

person are abolished except as provided in said articles.

8-48-101. Lessor or contractor-out deemed employer-

liability-recovery. (1) Any person, company, or corpora-

tion operating or engaged in or conducting any business

by leasing or contracting out any part or all of the work

thereof to any lessee, sublessee, contractor, or subcontrac-

tor, irrespective of the number of employees engaged in

such work, shall be construed to be an employer as de-

fined in articles 40 to 54 of this title and shall be liable

as provided in said articles to pay compensation for in-

jury or death resulting therefrom to said lessees, sub-

lessees, contractors, and subcontractors and their em-

ployees or employees’ dependents. The employer, before

commencing said work, shall insure and keep insured his

liability as provided in said articles, and such lessee, sub-

lessee, contractor, or subcontractor, as well as any em-

App. 24

ployee thereof, shall be deemed employees as defined in

said articles. The employer shall be entitled to recover the

cost of such insurance from said lessee, sublessee, con-

tractor, or subcontractor and may withhold and deduct the

same from the contract price or any royalties or other

money due, owing, or to become due said lessee, sublessee,

contractor, or subcontractor.

(2) If said lessee, sublessee, contractor, or subcon-

tractor is himself an employer in the doing of such work

and, before commencing such work, insures and keeps in-

sured his liability for compensation as provided in articles

40 to 54 of this title, neither said lessee, sublessee, con-

tractor, or subcontractor, its employees, or its insurer

shall have any right of contribution or action of any kind,

including actions under section 8-52-108, against the per-

son, company, or corporation operating or engaged in or

conducting any business by leasing or contracting out any

part or all of the work thereof, or against its employees,

servants, or agents.

United States Code

28 USC § 1346. United States as defendant

(b) Subject to the provisions of chapter 171 of this

title [28 USC §§ 2761 et seq.], the district courts, to-

gether with the United States District Court for the

District of the Canal Zone and the District Court of

the Virgin Islands, shall have exclusive jurisdiction of

civil actions on claims against the United States, for

money damages, accruing on and after January 1,

1945, for injury or loss of property, or personal injury

or death caused by the negligent or wrongful act or

omission of any employee of the government while act-

ing within the scope of his office or employment, under

circumstances where the United States, if a private

App. 25

person, would be liable to the claimant in accordance

with the law of the place where the act or omission

occurred.

28 USC § 2674. Liability of United States

The United States shall be liable, respecting the pro-

visions of this title relating to tort claims, in the same

manner and to the same extent as a private individual

under like cirenmstances, but shall not be liable for

interest prior to judgment or for punitive damages.

If, however, in any case wherein death was caused,

the Yaw of the place where the act or omission com-

»lained of occurred provides, or has been construed

to provide, for damages only punitive in nature, the

United States shall be liable for actual or compen-

satory damages, measured by the pecuniary injuries

resulting from such death to the persons respective-

ly, for whose benefit the action was brought, in lieu

thereof.

40 USC § 290. State workmen’s compensation laws; ex-

tension to buildings and works of United States

Whatsoever constituted authority of each of the sev-

eral States is charged with the enforcement of and

requiring compliances with the State workmen’s com-

pensation laws of said States and with the enforce-

ment of and requiring compliance with the orders,

decisions, and awards of said constituted authority

of said States hereafter shall have the power and

authority to apply such laws to all lands and premises

owned or held by the United States of America by

deed or act of cession, by purchase or otherwise, which

is within the exterior boundaries of any State, and

to all projects, buildings, constructions, improve-

ments, and property belonging to the United States

of America, which is within the exterior boundaries

of any State, in the same way and to the same extent

as if said premises were under the exclusive juris-

diction of the State within whose exterior boundar-

ies such place may be.

App. 26

For the purpose set out in section 1 of this Act [the

first paragraph of this section], the United States

of America hereby vests in the several States within

whose exterior houndaries such place may be, inso-

far as the enforcement of State workmen’s compen-

sation laws are affected, the right, power, and au-

thority aforesaid: Provided, however, That by the

passage of this Act [this section] the United States

of America in nowise relinquishes its jurisdiction for

any purpose over the property named, with the ex-

ception of extending to the several States within

whose exterior boundaries such place may be only

the powers above enumerated relating to the enforce-

ment of their State workmen’s compensation laws as

herein designated: Provided further, That nothing in

this Act [this section] shall be construed to modify

or amend the United States Employees’ Compensa-

tion Act as amended from time to time.

PRODUCTION OF SPECIAL NUCLEAR

MATERIAL

42 USC § 2061. Ownership and operation of production

facilities

(a) Ownership of production facilities. The Com-

mission, as agent of and on behalf of the United

States, shall be the exclusive owner of all production

facilities other than facilities which (1) are useful

in the conduct of research and development activities

in the fields specified in section 31 [42 USC § 2051],

and do not, in the opinion of the Commission, have a

potential production rate adequate to enable the user

of such facilities to produce within a reasonable pe-

riod of time a sufficient quantity of special nuclear

material to produce an atomic weapon; or (2) are

licensed by the Commission pursuant to section 103

or 104 [42 USC §§ 2133, 2134].

App. 27

(b) Operation of the Commission’s production facili-

ties. The Commission is authorized and directed to

produce or to provide for the production of special

nuclear material in its own production facilities. To

the extent deemed necessary, the Commission is au-

thorized to make, or to continue in effect, contracts

with persons obligating them to produce special nu-

clear material in facilities owned by the Commission.

The Commission is also authorized to enter into re-

search and development contracts authorizing the con-

tractor to produce special nuclear materia! in facil-

ities owned by the Commission to the extent that the

production of such special nuclear material may be

incident to the conduct of research and development

activities under such contracts. Any contract entered

into under this section shall contain provisions (1)

prohibiting the contractor from subcontracting any

part of the work he is obligated to perform under the

contract, except as authorized by the Commission;

and (2) obligating the contractor (A) to make such

reports pertaining to activities under the contract to

the Commission as the Commission may require, (B)

to submit to inspection by employees of the Commis-

sion of all such activities, and (C) to comply with all

safety and security regulations/which may be pre-

seribed by the Commission. An¥ contract made un-

der the provisions of this paragraph may be made

without regard to the provisions of section 3709 of

the Revised Statutes, as amended [41 USC § 5], upon

certification by the Commission that such action is

necessary in the interest of the common defense and

security, or upon a showing by the Commission that

advertising is not reasonably practicable. Partial and

advance payments may be made under such contracts.

nuclear material may he produced in the facilities

which under this section are not required to be owned

by the Commission.

42 USC $2121. Authority

(a) Research and development; production of atomic

weapons. The Commission is authorized to—

App. 28

(1) conduct experiments and do research and

development work in the military application of

atomic energy; and

(2) engage in the production of atomic weapons,

or atomic weapon parts, except that such activ-

ities shall be carried on only to the extent that the

express consent and direction of the President

of the United States has been obtained, which

consent and direction shall be obtained at least

once each year.

(b) Delivery of material or weapons to Department

of Defense; acquisition of weapon for military pur-

poses. The President from time to time may direct

the Commission (1) to deliver such quantities of spe-

cial nuclear material or atomic weapons to the De-

partment of Defense for such use as he deems neces-

sary in the interest of national defense, or (2) to

authorize the Department of Defense to manufacture,

produce, or acquire any atomic weapon or utilization

facility for military purposes: Provided, however,

That such authorization shall not extend to the pro-

duction of special nuclear material other than that

incidental to the operation of such utilization facil-

ities.

may authorize the Commission or the Department of

Defense, with the assistance of the other, to coop-

erate with another nation and, notwithstanding the

provisions of section 57, 62, or 81 [42 USC § 2077,

2092, or 2111], to transfer by sale, lease, or loan to

that nation, in accordance with terms and conditions

of a program approved by the President—

(1) nonnuclear parts of atomic weapons provided

that such nation has made substantial progress

in the development of atomic weapons, and other

nonnuclear parts of atomic weapons systems in-

volving Restricted Data provided that such trans-

fer will not contribute significantly to that na-

App. 29

tion’s atomic weapon design, development, or fab-

rication capability; for the purpose of improv-

ing that nation’s state of training and operational

readiness;

(2) utilization facilities for military applications;

and

(3) source, byproduct, or special nuclear material

for research on, development of, production of,

or use in utilization facilities for military appli-

cations: and

(4) souree, byproduct, or special nuclear mate-

rial for research on, development of, or use in

atomic weapons: Provided, however, That the

transfer of such material to that nation is neces-

sary to improve its atomie weapon design, de-

velopment, or fabrication capability: And pro-

vided further, That svch nation has made sub-

stantial progress in the development of atomic

weapons,

whenever the President determines that the proposed

cooperation and each proposed transfer arrangement

for the nonnuclear parts of atomic weapons and atom-

ic weapons systems, utilization facilities or source, by-

product, or special nuclear material will promote and

will not constitute an unreasonable risk to the common

defense and security, while such other nation is partic-

ipating with the United States pursuant to an inter-

national arrangement by substantial and material con-

tributions to the mutual defense and security: Pro-

vided, however, That the cooperation is undertaken

pursuant to an agreement entered into in accordance

with section 123 [42 USC § 2153]: And provided fur-

ther, That if an agreement for cooperation arranged

pursuant to this subsection provides for transfer of

utilization facilities for military applications the Com-

mission, or the Department of Defense with respect

to cooperation it has been authorized to undertake,

may authorize any person to transfer such utilization

facilities for military applications in accordance with

App. 30

the terms and conditions of this subsection and of the

agreement for cooperation.

42 USC $2201. General provisions

In the performance of its functions the Commission is

authorized to—

(k) Carrying of ;irearms, authorize such of its mem-

bers, officers, and employees as it deems necessary in

the interest of the common defense and security to

carry firearms while in the discharge of their official

duties. The Commission may also authorize such of

those employees of its contractors engaged in the pro-

tection of property owned by the United States and

located at facilities owned by or contracted to the

United States as it deems necessary in the interests of

the common defense and security to carry firearms

while in the discharge of their official duties. A per-

son authorized to carry firearms under this subsection

may, while in the performance of, and in connection

with, official duties, make arrests without warrant for

any offense against the United States committed in

that person’s presence or for any felony cognizable

under the laws of the United States if that person has

reasonable grounds to believe that the individual to he

arrested has committed or is committing such felony.

A person granted authority to make arrests by this

subsection may exercise that authority only in the

enforcement of (1) laws regarding the property of the

United States in the custody of the Department of

Energy, the Nuclear Regulatory Commission, or a

contractor of the Department of Energy or Nuclear

Regulatory Commission, or (2) any provision of this

Act that may subject an offender to a fine, imprison-

ment, or both. The arrest authority conferred by this

subsection is an addition to any arrest authority un-

der other laws;

42 USC § 5814. Abolition and tramsfers

(a) Abolition of Atomic Energy Commission. The

Atomic Energy Commission is hereby abolished. Sec-

App. 31

tions 21 and 22 of the Atomic Energy Act of 1954, as

amended (42 U.S.C. 2031 and 2032) are repealed.

(b) Transfer or lapse of functions of Atomic Energy

Commission. All other functions of the Commission,

the Chairman and members of the Commission, and

the officers and components of the Commission are

hereby transferred or allowed to lapse pursuant to

the provisions of this Act.

ferred to Administrator. There are hereby trans-

ferred to and vested in the Administrator all funce-

tions of the Atomic Energy Commission, the Chair-

man and members of the Commission, and the officers

and components of the Commission, except as other-

wise provided in this Act.

42 USC §7151. General transfers

(a) Except as otherwise provided in this Act, there

are hereby transferred to, and vested in, the Secre-

tary all of the functions vested by law in the Admin-

istrator of the Federal Energy Administration or the

Federal Energy Administration, the Administrator

of the Energy Research and Development Adminis-

tration or the Energy Research and Development Ad-

ministration; and the functions vested by law in the

officers and components or either such Administra-

tion.

(b) Except as provided in title IV, there are hereby

transferred to, and vested in, the Secretary the func-

tion of the Federal Power Commission, or of the

members, officers, or components thereof. The Sec-

retary may exercise any power described in section

402(a)(2) to the extent the Secretary determines such

power to be necessary to the exercise of any function

within his jurisdiction pursuant to the preceding sen-

tence.

(Aug. 4, 1977, P. L. 95-91, Title III, 4301, 91 Stat.

577.)

To comply with the requirement of U.S. Sup. Ct.

R. 28.1, the following disclosure on behalf of

Respondent, Rockwell International Corporation, is

made:

*This list contains all direct and indirect active

subsidiaries of Rockwell (other than wholly owned

subsidiaries) and active companies of which

Rockwell directly or indirectly owns between 20

percent and 50 percent. A.C.S. Engineering

Limited, United Kingdom; Arpel S.A., France;

Autonetica, S.A., Mexico; Braseixos S.A., Brazil;

Brasprensas S.A., Brazil; Collins Radio Company of

Japan Limited, Japan; Compagnie Industrielle de

Mecanismes S.A., France; Componentes

Automotrices Rockwell-Standard y Compania

Limitada, Chile; Dina Rockwell Nacional S.A.,

Mexico; Draper de Mexico S.A. de C.V., Mexico;

Ikegai-Goss Co. Ltd., Japan; Industrias Teluo S.A.,

Spain; Metallurgica Carabobo, C.A., Venezuela;

Moligal Productora de Assentos de Automovel,

Limitada, Portugal; Phi-Magnetronics Limited,

United Kingdom; Rockitt, Ltd., U.S.A.; Rockwell

Cerdans, S.A., Spain; Rockwell Standard of

Australia Limited, Australia; Rockwell-Standard de

Venezuela, C.A., Venezuela; Rockwell Valves S.A.,

France; Rockwell Walther Australia Pty. Limited,

Australia; Rubery Owen-Rockwell (Europa) B.V.,

Netherlands; Rubery Owen-Rockwell Limited, United

Kingdom; S.A.S.E.B. AG Eschen, Liechtenstein;

Serrature Auto Ferroviarie Edili S.p.A., Italy;

SETEC, S.p.A., Italy; Tamet Compania Anonima,

Venezuela; Telehoist Humblet, N.V., Belgium;

Telehoist Storer Limited, United Kingdom; USHA

Telehoist Limited, India.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.