Leonard F. Rizzuto, Appellant, v. United States of America, Appellee, 298 F.2d 748 (10th Cir. 1961)

The appellant, Rizzuto, was employed by the Central Base Fund, a nonappropriated fund instrumentality, at Francis E. Warren Air Force Base, Cheyenne, Wyoming, as manager of the bowling alleys operated there for the benefit and pleasure of the members of the armed forces of the United States. Rizzuto was injured in the course of his employment, and received the compensation benefits afforded by the Wyoming Workmen's Compensation laws. Thereafter he brought this action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), seeking additional recovery for the damages resulting from his injuries. This is an appeal from a summary judgment in favor of the United States.

It is admitted that the Central Base Fund at Francis E. Warren Air Force Base paid into an account in the Wyoming Industrial Accident Fund for the purpose of providing workmen's compensation protection for its civilian employees, and that Rizzuto took advantage of the benefits so provided.¹  It is urged: (1) that Rizzuto was not a federal employee, and that he can maintain this action against the United States as a negligent third party; and (2) that the remedy under the Wyoming Workmen's Compensation law is not exclusive under federal law, and the United States cannot rely on the exclusive remedy provision in the state statute because this injury occurred in an area over which the United States has exclusive legislative jurisdiction.

The adjudicated cases hold that the Central Base Fund is an instrumentality of the United States, and that those employed by it are federal employees. Standard Oil Co. of California v. Johnson, 316 U.S. 481, 62 S. Ct. 1168, 86 L. Ed. 1611; United States v. Holcombe, 4 Cir., 277 F.2d 143; United States v. Forfari, 9 Cir., 268 F.2d 29, cert. denied 361 U.S. 902, 80 S. Ct. 211, 4 L. Ed. 2d 157; Aubrey v. United States, 103 U.S.App.D.C. 65, 254 F.2d 768; Lowe v. United States, N.D. Miss., 185 F. Supp. 189, aff'd 5 Cir., 292 F.2d 501. The statute in effect when Rizzuto was injured provided:

"The nonappropriated fund instrumentalities described in the first section of this Act shall provide their civilian employees, by insurance or otherwise, with compensation for death or disability incurred in the course of employment. In the case of employees employed in the continental United States (except Alaska), compensation shall not be less than that provided by the laws of the State (or the District of Columbia) in which the employing activity of any such instrumentality is located. * * *" Act of June 19, 1952, ch. 444, § 2, 66 Stat. 138, 5 U.S.C. § 150k-1 (1952 ed.).

The intent of this statute is to require instrumentalities such as the Central Base Fund to provide protection for their civilian employees to the same extent as other employers in the state where they operate are required to provide compensation for their employees. The statute provided a simple, certain and uniform method for compensation to employees of the Central Base Fund who were injured in the course of their employment and was part of the statutory system providing for remedies against the United States. This compensation was exclusive and precluded recovery under the Federal Tort Claims Act. United States v. Forfari, supra; Aubrey v. United States,²  supra; Lowe v. United States, supra. Cf. Johansen v. United States, 343 U.S. 427, 72 S. Ct. 849, 96 L. Ed. 1051; Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152.

Affirmed.