* District Judge for the Eastern District of Texas, sitting by

designation. UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

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No. 92-3651

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JERRY CHARLES, SR., ET AL.,

Plaintiffs,

JERRY CHARLES, SR.,

Plaintiff-Appellant,

VERSUS

UNITED STATES OF AMERICA, ET AL.,

Defendants-Appellees.

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Appeals from the United States District Court

for the Eastern District of Louisiana

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(February 18, 1994)

Before KI NG and EMILIO M. GARZA, Circuit Judges, and COBB, *

District Judge.

EMILIO M. GARZA, Circuit Judge:

We withdraw our original opinion, reported at 7 F.3d 78, and

reconsider our prior holding in light of the Louisiana Supreme

Court's decision in Brown v. Avondale Industries, Inc., 617 So.2d

482 (La. 1993). We now vacate and remand for further proceedings

consistent with Brown

.

The plaintiff, Jerry Charles, Sr. , sued the United States

under the Federal Tort Claims Act ("FTCA"), see 28 U.S.C. § 1346(b)

(1988), for injuries he suffered while working on a painting and1 Intervenor McDermott, Inc. also appeals, adopting the brief submitted

by Charles. For the sake of convenience, we refer only to Charles in discussing

the arguments raised on appeal.

-2- sandblasting crew which was constructing a ship for the United

States Navy. The district court granted summary judgment in favor

of the government, see Fed. R. Civ. P. 56, on the grounds that the

government was Charles's employer, and therefore it was immune from

suit unde r the Louisiana worker's compensation statute. S ee La.

R ev. Stat. Ann. § 23:1032 (West Supp. 1993). Charles appeals, 1

arguing that the government is not immune because he has received

benefits, procured by his employer McDermott, Inc., under the

Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C.

§§ 901-950 (1988).

Charles left the Navy vessel on which he was working and was

walking across McDermott's shipyard when a Navy employee ran into

him with a Navy van. The FTCA makes the United States liable in

tort

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 acting within the

scope of hi s office or employment, under circumstances

where t he United States, if a private person, would be

liable to the claimant in accordance with the law of the

place where the act or omission occurred.

28 U.S.C. § 1346(b). The district court granted the government's

motion for summary judgment on the grounds that the l aw of the

place whe re the alleged act or omission occurred ) ) the law of the

state of Louisiana )) immunized the government from suit even though

Charles had received benefits under the LHWCA. The government is

immune from suit under the Louisiana law because cons truction of2 In Thomas v. Calavar Corp., 679 F.2d 416 (5th Cir. 1982), we stated:

Under the law of Louisiana

. . . the principal for whom a contractor

is performing work is not liabl e in tort for negligent injuries

suffered by the contractor's employees if the work is part of the

principal's "trade, busine ss, or occupation." In those

circumstances, the principal, as the "statutory employer " of the

i njured employees, is liable to them only under Loui siana's

Workmen's Compensation Law. This rule applies . . . to the United

States . . . .

Id. at 419 (citing La. Rev. Stat. Ann. § 23:1032) (other citations omitted). On

the day of the accident Charles was working on a torpedo test craft which

McDermott was constructing for the Navy. According to the affidavit of a Navy

official, vessels of that kind are "essent ial to the Navy's mission of

constructing and deploying modern weapons systems to def end the United States

from attack, as required by 10 U.S.C. § 7310." S ee 10 U.S.C. § 7310 (West Supp.

1993) (directing the Navy to "develop plans and programs for the construction and

deployment of weapons systems . . . that are more survivable, less costly, and

more effective than those in the Navy on October 20, 1978").

3 See 33 U.S.C. § 905(a) (providing that "the liability of an employer

prescribed in [the LHWCA] shall be exclusive and in place of all other liability

of such employe r to the employee"); i d. § 904 (providing that "every employer

shall be liable for and shall secure the payment to his employees" of

compensation payable under the LHWCA). The government does not contend that it

is Charles' employer under the LHWCA, or that it is entitled to immunity from

suit under that Act.

-3- the ship on which Charles was working was part of the Navy's trade,

business or occupa tion. 2 However, under the LHWCA the government

is not Charles' employer, and therefore is not immune from suit. 3

In granting summary judgment, the district court relied on several

decisions of the Louisiana courts of appeals which gave effect to

Louisiana's statutory immunity defense even t hough the plaintiff

had received benefits under the LHWCA. See Griffis v. Gulf Coast

Pre-Stress Co., Inc., 563 So.2d 1254, 1254-55 (La. App. 1st Cir.),

writ denied, 568 So.2d 1054 (1990); Crater v. Mesa Offshore Co.,

539 So.2d 88, 90-91 (La. App. 3d Cir.), writ denied, 542 So.2d 1382

(La.), writ denied, 543 So.2d 4 (La.), cert. denied, 493 U.S. 905,

110 S. Ct. 264, 107 L. Ed. 2d 214 (1989); Lewis v. Modular

Quarters, 508 So.2d 975, 980-82 (La. App. 3d Cir.), writ denied,4 "Generally, unless a decision specifies otherwise, it is given both

retrospective and prospective effect." S uccession of Clivens, 426 So.2d 585, 587

(La. 1982). The Supreme Court of Louisiana did not specify in Brown that that

decision should be applied only prospectively. B rown applies to this case, which

was pending on appeal when Brown was decided.

-4- 514 So.2d 127 (La. 1987), cert. denied, 487 U.S. 1226, 108 S. Ct.

2886, 101 L. Ed. 2d 920 (1988).

While this appeal was pending, however, the Supreme Court of

Louisiana overruled those decisions, holding in Brown v. Avondale

Industries, Inc. that immunity under the Louisiana worker's

compensation statute is not available to an employer where its

employee has elected to receive benefits under the LHWCA:

Because the employee elected benefits under the [LHWCA],

the state Act was not implicated. Defendant, even if it

would be a statutory employer under the state Act, cannot

claim the tor t immunity provided to principals by that

Act, beca use the conflicting provisions of the federal

Act selected by the employee control.

Id.

, 617 So.2d 482. Since B rown, the law of the State of Louisiana

no longer provides statutory immunity in cases such as this one. 4

The government contends that Brown does not represent the law

of the place where the act or omission occurred because "the FTCA

adopts state law without regard to whether that state law conflicts

with, or has been preempted by, any other federal law," such as the

LHWCA. According to the government, the "law of the place" to

which the FTCA refers is the state law immunity provision, and not

any conflicting federal law which the Louisiana courts may apply in

its stead. We disagree. In R ichards v. United States, 369 U.S. 1,

82 S. Ct. 585, 7 L. Ed. 2d 492 (1962), the Supreme Court held that

the law of the place referred to by the FTCA is "the whole law of-5-

the State where the act or omission occurred." I d. at 11 , 82 S.

Ct. at 592. The plaintiffs in R ichards were the personal

representatives of individuals killed in an American Airlines crash

in Missouri. I d. at 3, 82 S. Ct. at 588. They sued the United

States under the FTCA in federal district court in Oklahoma,

alleging that the government, through the Civ il Aviation Agency,

negligently failed to enforce federal laws and regulations at

American Airlines' overhaul depot in Tulsa. I d. The question

arose whether the "law of the place" referred to in the FTCA was

the Oklahoma Wrongful Death Act or the Missouri Wrongful Death Act.

See id. at 3- 4, 82 S.Ct. at 588. Oklahoma courts would have

applied the Missouri law under Oklahoma's choice of law rules

because Missouri was the place where the alleged negligence had its

operative eff ect. S ee id. at 4, 82 S. Ct. at 588. The R ichards

Court held that the "law of the place" referred to by the FTCA is

the whole law of the state, including the state's choi ce of law

rules, such that Missouri law controlled the case. Id. at 16, 82

S. Ct. at 594-95. The Court relied on the FTCA's command that the

government be held liable "under circum stances where the United

States, if a private person, would be liable," and reasoned that

application of the state's choice of law rules would be most

consistent with that mandate. Id. at 11-12, 82 S. Ct. at 592.

B y the same token, if the government is to be liable "under

circumstances where the United States, if a private person, would

be liable," we must apply the LHWCA's immunity rule if that is the

rule which the courts of Louisiana would apply. S ee Caban v.5 In Johnson v. United States, 576 F.2d 606 (5th Cir. 1978), we held

that, despite Richards ' holding that the whole law of the state applies under the

FTCA, federal courts in FTCA cases should apply federal rules of res judicata and

collateral estoppel in determining the preclusive effect of a prio r federal

judgment. See id. at 612. We distinguished Richards on the grounds that "its

holding

. . . concerned conflicts of laws principles )) principles that affect the

substantive liability of parties to an action." Id. at 611. We further noted

that, "while it has been widely held

. . . that state law governs the liability

of the parties in Federal Tort Claims actions, these cases overwhelmingly concern the elements of causes of action, defenses, or damages that a party may claim,

rather than issues of internal court procedure or the relati onships between

courts." I d. Because the issue in this case concerns the availability of

statutory immunity from suit, which plainly "affect[s] the substantive liability"

of the parties, we are guided by Richards rather than Johnson

.

-6- United States, 728 F.2d 68, 72 (2nd Cir. 1984) ("Applying the

state's `whole law' requires that we look to whatever law,

including federal law, the state courts would apply in like

circumstances involving a private defendant." (citations

omitted)). 5 Therefore, in light of the Supreme Court's holding in

Richards that "the whole law of the state" mu st be applied under

the FTCA, the Louisiana Supreme Court's holding in Brown represents

the law of the place where the act or omission occurred. Because

the district court's decision granting summary judgment in favor of

the government is inconsistent with Brown, we vacate and remand for

further proceedings.