UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

STANLEY VERNON,

Plaintiff-Appellant,

v. No. 95-3149

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court

for the District of South Carolina, at Charleston.

David C. Norton, District Judge.

(CA-95-535-2-18)

Argued: September 26, 1996

Decided: March 5, 1997

Before RUSSELL and MICHAEL, Circuit Judges, and MICHAEL,

Senior United States District Judge for the Western District of

Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Mark Lee Archer, North Charleston, South Carolina, for

Appellant. John Harris Douglas, Assistant United States Attorney,

Charleston, South Carolina, for Appellee. ON BRIEF: Margaret B.

Seymour, United States Attorney, Charleston, South Carolina, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Stanley Vernon ("Vernon") appeals a grant of summary judgment

in favor of the United States in his negligence suit against the United

States under the Federal Tort Claims Act ("FTCA").1 Vernon argues

the court erred because the United States does not qualify as a "statutory employer" under the South Carolina Workers' Compensation Law,2

and is not entitled to the "exclusive remedy" defense found in that

law. He further contends that because the South Carolina law is

purely jurisdictional, it cannot serve as the underlying basis of a federal court's decision. The district court found that the United States

is subject to South Carolina law, was Vernon's statutory employer,

and was entitled to assert the exclusive remedy defense. We agree,

and for the reasons that follow, we affirm the district court's grant of

summary judgment.

I.

Vernon worked for Lockheed Missile and Space Corporation

("Lockheed"), at the Navy's Polaris Missile Facility, Atlantic

("Pomflant"), in Charleston, South Carolina. He held a job as a Surface Support Equipment mechanic ("SSE"). SSEs maintained and

repaired missile handling equipment. Lockheed employees and

United States Navy personnel both performed this job. Lockheed was

a contractor of the United States.

At Pomflant, Vernon slipped, fell and was injured. He filed a claim

against Lockheed, and received and accepted benefits under the South

Carolina Workers' Compensation Law. He also sued the United

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1 28 U.S.C. §§ 1346(b), 2401(b), 2671-80 (1994).

2 S.C. Code Ann. tit. 42 (Law. Co-op. 1985 & Supp. 1995).

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States under the FTCA, charging that the negligence of Navy personnel caused his injury.

The United States moved for summary judgment, claiming it was

Vernon's statutory employer, and therefore entitled to assert the

exclusive remedy defense under the South Carolina Workers' Compensation Law.3 The district court found that the United States was

Vernon's statutory employer, it was entitled to the exclusive remedy

defense, and granted the United States summary judgment. This

appeal followed.

II.

Vernon raises two issues on appeal. First, he argues that the United

States was not his statutory employer, and thus not entitled to the

exclusive remedy defense. Second, he argues that the South Carolina

Workers' Compensation Law is purely jurisdictional and cannot form

the underlying basis for a decision by a federal court. These arguments require that we examine the relevant provisions of both the

FTCA and the South Carolina Workers' Compensation Law.

A.

Under certain circumstances, the FTCA allows injured parties to

sue the United States for the negligence of its employees. An action

may only proceed in the same manner and to the same extent as

would an action against a private person under the laws of the state

where the incident occurred.4 There is no dispute that South Carolina

law applies, and so we turn to an examination of South Carolina law.

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3 Id. § 42-1-540.

4 28 U.S.C. §§ 1346(b) & 2674 (1994); Lockheed Aircraft Corp. v.

United States, 460 U.S. 190 (1983); Pendley v. United States, 856 F.2d

699 (4th Cir. 1988).

Congress used different, but consistent language in the two sections

cited above. In 28 U.S.C. § 1346(b), Congress gave jurisdiction to

the district courts . . . on claims against the United States for

money damages, . . . personal injury or death caused by the negligent or wrongful act or omission of any employee of the Gov-

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South Carolina has adopted a comprehensive scheme of workers'

compensation.5 The scheme includes an "exclusive remedy" provision, which provides that when an employer pays and an injured

employee accepts benefits under the Workers' Compensation Law,

the employee gives up all "other rights and remedies . . . as against

his employer, at common law or otherwise, on account of [the] injury."6

If the United States was Vernon's employer, as contemplated by the

Workers' Compensation Law, then it is entitled to the exclusive remedy defense.

Under the Workers' Compensation Law, a "statutory employer" is

someone who hires a contractor or subcontractor to do his work, if

certain conditions are met:

When a person, . . . referred to as "owner," undertakes to

perform or execute any work which is part of his trade, business or occupation and contracts with any other person,

(. . . referred to as "subcontractor") for the execution or performance by or under such subcontractor, . . . the owner

shall be liable to pay to any workman employed in the work

any compensation under this Title which he would have

been liable to pay if the workman had been immediately

employed by him.7

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ernment, . . . under circumstances where the 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.

In 28 U.S.C. § 2674, Congress established liability for the United

States as follows:

The United States shall be liable, respecting the provision of this

title relating to tort claims, in the same manner and to the same

extent as a private individual under like circumstances . . . .

We do not believe it is necessary to examine the different language of

the two sections for the purposes of this appeal.

5 S.C. Code Ann. tit. 42 (Law. Co-op. 1985 and Supp. 1995).

6 S.C. Code Ann. § 42-1-540.

7 S.C. Code Ann. § 42-1-400.

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South Carolina courts use a three-part test to determine when a

statutory employer-employee relationship exists. The courts ask:

(1) Is the activity an important part of the owner's business;

(2) is the activity a necessary, essential, and integral part

of the business; and,

(3) has the identical activity been performed by the

employees of the owner?8

In this case, the district court received an affidavit from Rear

Admiral George P. Nanos, Jr., Director of the Strategic Systems Programs. Admiral Nanos supervised work at Pomflant. Based on Admiral Nanos' affidavit, the district court found that (1) the work Vernon

was performing was an important part of the Navy's business; (2) the

work was a necessary, essential, and integral part of the Navy's business; and (3) Navy personnel were performing identical work. Applying the above test, then, the district court found that the United States

was Vernon's statutory employer.

In Marchbanks v. Duke Power Co.,9 the South Carolina Supreme

Court held that a statutory employer was entitled to the exclusive

remedy of the Workers' Compensation Law. That rule has been followed by state and federal courts in South Carolina ever since.10 The

district court found that the United States, as Vernon's statutory

employer, was allowed to use the exclusive remedy defense, and correctly granted summary judgment in favor of the United States.

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8 Carter v. Florentine Corp., 423 S.E.2d 112, 113 (S.C. 1992) (citations

omitted).

9 2 S.E.2d 825, 836 (S.C. 1939).

10 See, e.g. Corollo v. S.S. Kresge Co., 456 F.2d 306 (4th Cir. 1972)

(applying exclusive remedy defense to statutory employer); Wheeler v.

Morrison Machinery Co., 438 S.E.2d 264 (S.C. Ct. App. 1993) (same).

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B.

Vernon first argues that the United States cannot use the exclusive

remedy defense, because it is not subject to the South Carolina Workers' Compensation Law. He is correct in noting that the South Carolina Workers' Compensation Law specifically does not apply to

employees of the federal government. The law clearly states, "This

Title shall not apply to: (1) casual employees, . . . and Federal

employees in this State."11 From this point, Vernon proceeds to propose that because federal employees are exempt, and neither Vernon

nor the United States followed the statutory procedure to waive that

exemption,12 then the law does not apply and the defense is not available to the United States.

However, Vernon starts with the wrong premise, and so ends up

with the wrong conclusion. The proper starting place is the FTCA,

which provides that "[t]he United States shall be liable, respecting the

provision of this title relating to tort claims, in the same manner and

to the same extent as a private individual under like circumstances

. . . ."13

Thus, to find liability under the FTCA, the United States first must

be placed in the shoes of a hypothetical private person. In this case,

the United States is the statutory employer. It is the "owner" identified

in the South Carolina law at section 42-1-400. From there, the analysis proceeds under South Carolina law. It is clear from both state and

federal cases (applying state law) that a statutory employer in these

circumstances is fully entitled to assert the exclusive remedy defense.14

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11 S.C. Code Ann. § 42-1-360.

12 S.C. Code Ann. § 42-1-380. An exempt employer "may come in

under the terms of this Title and receive the benefits and be subject to

the liabilities of this Title by filing with the Commission a written notice

of his desire to be subject to the terms and provisions of this Title."

13 28 U.S.C. § 2674 (1994) (emphasis added).

14 See, e.g. Corollo, 456 F.2d 306; Wheeler, 438 S.E.2d 264 (applying

exclusive remedy defense to statutory employer).

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C.

Second, Vernon contends that because the exclusive remedy

defense is purely jurisdictional, it cannot form the substantive basis

for a federal court's decision. We disagree. The FTCA states that the

United States is liable only when a private person would be liable.15

By specifically adopting state law as the underlying law for a claim

under the FTCA, Congress requires each FTCA suit to rest on state

law.

In this case, a private person under like circumstances would not

be liable for Vernon's injuries, so the United States cannot be liable,

either. Vernon would have us find the United States liable under circumstances where a private defendant would not face liability. Such

a result contradicts the clear language of the FTCA. We decline to

adopt Vernon's approach.

III.

For the foregoing reasons, the judgment below is

AFFIRMED.

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15 28 U.S.C. §§ 1346(b) & 2674.

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