U.S. ex rel Stone v. Rockwell Intern. Corp.

• Citation: 282 F.3d 787
• Decision Date: 04 March 2002
• Docket Number: No. 99-1352.,No. 99-1351.,No. 99-1353.,99-1351.,99-1352.,99-1353.
• Parties: UNITED STATES of America, ex rel. James S. STONE, and United States of America, Plaintiffs-Appellees and Cross-Appellants, v. ROCKWELL INTERNATIONAL CORP., and Boeing North American, Inc., Defendants-Appellants and Cross-Appellees. American Hospital Association, National Defense Industrial Association, Electronic Industries Alliance, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

282 F.3d 787

UNITED STATES of America, ex rel. James S. STONE, and United States of America, Plaintiffs-Appellees and Cross-Appellants, v. ROCKWELL INTERNATIONAL CORP., and Boeing North American, Inc., Defendants-Appellants and Cross-Appellees.

American Hospital Association, National Defense Industrial Association, Electronic Industries Alliance, Amici Curiae.

No. 99-1351.

No. 99-1352.

No. 99-1353.

United States Court of Appeals, Tenth Circuit.

March 4, 2002.

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Christopher J. Koenigs (Michael A. Williams and Michael B. Carroll, with him on the briefs) of Williams, Youle & Koenigs, P.C., Denver, CO, for the Appellants/Cross-Appellees Rockwell International Corp. and Boeing North American, Inc.

Maria L. Vullo (Robert E. Montgomery, Jr., Matthew Chavez, Jeannie S. Kang, Paul, Weiss, Rifkind, Wharton & Garrison, New York, NY; Hartley D. Alley, Wheat Ridge, CO, with her on the briefs) of Paul, Weiss, Rifkind, Wharton & Garrison, New York, NY, for Appellee/Cross-Appellant James S. Stone.

Peter R. Maier, Civil Division, Appellate Staff, U.S. Department of Justice, Washington, DC, (David W. Ogden, Acting Assistant Attorney General, Douglas N. Letter, Civil Division, Appellate Staff, U.S. Department of Justice, Washington, DC; Thomas L. Strickland, United States Attorney, Denver, CO, with him on the briefs), for the Appellee/Cross-Appellant United States of America.

Herbert L. Fenster, C. Stanley Dees, Mark R. Troy, McKenna & Cuneo, L.L.P., Denver, Colorado; Maureen D. Mudron, American Hospital Association, Washington DC, filed a brief on behalf of the Amici Curiae, American Hospital Association, National Defense Industrial Association, Electronic Industries Alliance.

Before BRISCOE, HOLLOWAY and POLITZ,^* Circuit Judges.

ORDER ON REHEARING

HOLLOWAY, Circuit Judge.

The petition for rehearing en banc of Defendants-Appellants Rockwell International Corp. and Boeing North American, Inc., was circulated to the members of the panel and all circuit judges of the court in regular service. There having been no request for a poll on the suggestion of rehearing en banc, that suggestion is denied.

The petition for rehearing by the panel has been considered by the panel and it has been determined that rehearing is granted for the limited purpose of modifying the opinion and ordering a limited remand to the district court as provided herein. The limited remand to the district court is for the purpose of that court making findings of fact and conclusions concerning the issue of disclosure prior to filing of this action in accordance with the False Claims Act, concerning the saltcrete, pondcrete and irrigation matters and any further proceedings in the district court which the District Judge deems necessary in connection therewith.

Upon completion of those proceedings, a supplemental record will be transmitted to this court containing the additional findings and conclusions made on this limited remand, and this court will otherwise retain jurisdiction of this cause. See Penteco Corp. Limited Partnership v. Union Gas System, Inc., 929 F.2d 1519, 1522 (10th Cir.1991). On all other issues except that requiring the additional factual findings and conclusions on the saltcrete, pondcrete and irrigation matters, the rulings made previously in our opinion are undisturbed. Upon receipt of the supplemental record of the proceedings below, final disposition of these appeals will be made.

The court's opinion as modified on rehearing by the panel is being filed along with this order.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

(D.C. NO. 89-M-1154)

This appeal comes to us from the latest round of litigation arising from environmental violations that occurred during the 1980s at the Rocky Flats nuclear weapons plant ("Rocky Flats"), near Golden, Colorado. Previously, we considered related appeals in United States ex rel. Stone v. Rockwell Int'l Corp., No. 94-634 (10th Cir.); United States v. Rockwell Int'l Corp., No. 96-1530, 124 F.3d 1194 (10th Cir.1997); United States ex rel. Stone v. Rockwell Int'l Corp., No. 97-1015 (10th Cir.); In re Special Grand Jury, 143 F.3d 565 (10th Cir.1998); United States ex rel. Stone v. Rockwell Int'l Corp., No. 98-1283 (10th Cir.); and United States ex rel. Stone v. Rockwell Int'l Corp., 173 F.3d 757 (10th Cir.1999). The instant appeal concerns False Claims Act claims, 31 U.S.C. §§ 3729 et seq. (FCA), brought by the Government and James S. Stone, a qui tam relator, against Rockwell International Corporation and Boeing North American, Inc. ("Rockwell"), as well as breach of contract and common law fraud claims brought by the Government alone. After careful consideration, on rehearing by the panel we make a limited remand for further findings and conclusions and affirm the remaining rulings.

I

From 1975 through 1989 Rockwell operated the Rocky Flats facility for the Department of Energy ("DOE") under a Management and Operating contract. Under this arrangement, Rockwell was compensated on a "cost-plus" fee basis, whereby Rockwell was reimbursed by DOE for "allowable costs" incurred in operating the plant and, once per year, received a "base fee" calculated at a pre-determined percentage of the overall value of the contract. In addition, the most significant portion of Rockwell's compensation for its management of Rocky Flats came in the form of an "award fee," a bonus paid every six months. The amount of this bonus was based on DOE's evaluation of Rockwell's performance in such areas as general management, production, and (critically for purposes of this appeal) environmental, safety and health operations.

James Stone began working at Rocky Flats as a Principal Engineer in the Facilities, Engineering and Construction Division, on November 10, 1980. He was promoted to the position of Lead Principal Engineer for Rocky Flats' Utility Design Department, Facilities Engineering Division, where he worked until March 1986, when he was laid off.

On June 25, 1987, after he had been laid off by Rockwell, Stone informed Special Agent Jon S. Lipsky of the Federal Bureau of Investigations about environmental crimes that had allegedly occurred at Rocky Flats during Stone's tenure there. Explaining to Agent Lipsky that he had had "unlimited access" at Rocky Flats, Stone related a variety of allegations, including, inter alia, that contrary to public knowledge, Rocky Flats accepted hazardous and nuclear waste from other DOE facilities; that Rockwell employees were "forbidden from discussing any controversies in front of a DOE employee"; that although Rocky Flats' fluid bed incinerators failed testing in 1981, the pilot incinerator remained on line and was used to incinerate wastes daily since 1981, including plutonium wastes which were then sent out for burial; that Rockwell distilled and fractionated various oils and solvents although the wastes were geared for incineration; that Stone believed that the ground water was contaminated from previous waste burial and land application, and that hazardous waste lagoons tended to overflow during and after "a good rain," causing hazardous wastes to be discharged without first being treated. II App. at 457-59.

Using the information he had learned from Stone, Agent Lipsky sought and received a search warrant to search Rocky Flats. III App. at 778-787 (Lipsky Affidavit). Pursuant to this search warrant, on June 6, 1989, seventy five FBI and EPA agents conducted a search of Rocky Flats. Three days after Rocky Flats had been searched, Agent Lipsky's affidavit was unsealed, prompting intense media coverage of the environmental violations alleged therein. See, e.g., Bruce Finley & Thomas Graf, "Rocky Flats illegally burned, dumped waste, U.S. claims," Denver Post, June 10, 1989; Sue Lindsay & Janet Day, "FBI: Flats burned waste secretly," Rocky Mountain News, June 10, 1989.

Availing himself of the qui tam provision of the False Claims Act, 31 U.S.C. § 3730(b)(1) ("A person may bring a civil action for a violation of section 3729 for the person and for the United States government. The action shall be brought in the name of the Government."), on July 5, 1989 Stone filed the complaint that forms the basis for this appeal. The complaint, filed in camera and under seal, stated an FCA claim alleging that Rockwell, while managing Rocky Flats, concealed environmental, safety, and health problems from DOE throughout the 1980s. I App. at 81. It alleged that from at least as early as November 1980, Rockwell had been legally required to comply with certain federal and state regulations, statutes, laws, and agreements, including, inter alia: DOE Order 5483.1, as superseded by 5483.1A, for Occupational Safety and Health Program for Government Owned Contractor-Operated facilities; DOE Order 6430.1, the DOE General Design Criteria Manual, and DOE Order 5480.2; Colorado statutes, including Hazardous Substances, Colo.Rev. Stat. §§ 25-5-501 et seq., the Air Quality Control Program, Colo.Rev.Stat. §§ 25-7-101 et seq., Asbestos Control, Colo.Rev. Stat. §§ 25-7-501 et seq., the Colorado Hazardous Waste Act, Colo.Rev.Stat. §§ 25-15-101 et seq., the Water Quality Control Act, Colo.Rev.Stat. §§ 25-8-201 et seq., Radiation Control, Colo.Rev.Stat. §§ 25-11-101 et seq., Hazardous Substance Incidents, Colo.Rev.Stat. §§ 29-22-101 et seq., and other specific provisions defining prohibited acts and reporting requirements with respect to hazardous substances, including, Colo.Rev.Stat. §§ 25-5-503, 25-8-506 & 608, 25-15-08, 309, 310, 29-22-101 & 108; federal statutes, including the Occupational Safety and Health Act, 29 U.S.C. §§ 651 et seq., the Atomic Energy Act of 1954, as amended, 42 U.S.C. §§ 2011 et seq., the Energy Reorganization Act of 1974, 42 U.S.C. §§ 5801 et seq., the Water Pollution Prevention and Control Act, 33 U.S.C. §§ 1251 et seq., the Clean Air Act, 42 U.S.C. §§ 7401 et seq., the...