                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-1449


FRED LADD; LORETTA SUZANNE LADD,

                Plaintiffs - Appellants,

           v.

RESEARCH   TRIANGLE  INSTITUTE,   a/k/a  Research   Triangle
Institute International, a North Carolina corporation,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:06−cv−00399−BO)


Argued:   May 13, 2009                     Decided:   July 2, 2009


Before KING, SHEDD, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: David Lee Kofoed, Sr., THE KOFOED LAW FIRM, LLC,
Centennial, Colorado, for Appellants.    Clifton L. Brinson,
SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, LLP,
Raleigh, North Carolina, for Appellee. ON BRIEF: Mark A. Ash,
SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, LLP,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Research Triangle Institute (“RTI”) contracted to rebuild

municipal water and sewage facilities in Iraq following the 2003

U.S.   invasion.         RTI   obtained    Ladd’s        services     as   a   civilian

engineer     by   contract      with      his    direct      employer,         Chemonics

International, Inc. (“Chemonics”).                 Ladd was injured in Iraq

while working on a project directed by RTI.                          He and his wife

(“the Ladds”) subsequently sued RTI.                   The district court awarded

RTI summary judgment and the Ladds appeal.                      Because the Ladds’

suit is barred by the Defense Base Act, 42 U.S.C. § 1651 (“the

DBA”), we affirm the judgment of the district court.



                                          I.

       RTI   contracted        with     the      United     States         Agency     for

International      Development        (“USAID”)    to     provide      reconstruction

services     in   Iraq    following       the     2003    U.S.       invasion.        RTI

subcontracted      with    Chemonics      to    recruit     qualified       personnel.

Chemonics    subsequently       recruited        and    hired    Ladd,     a   civilian

water and sewer engineer.

       In October 2003, while traveling from Al Kut, Iraq, to a

meeting in Noumaniya, Ladd was injured when his vehicle’s left

front tire blew, causing the vehicle to plunge into a canal.

Ladd   suffered    several      serious        injuries    as    a    result     of   the



                                          2
accident.       Despite          several      surgeries,         Ladd   requires       ongoing

physical, mental, and emotional care.

      In October 2005, the Ladds filed a complaint in the United

States District Court for the District of Colorado, where they

lived,   alleging           that       RTI    failed       to    supply       vehicles      for

operations      in        Iraq     consistent        with       those    promised       during

orientation; that Ladd’s driver, allegedly an RTI employee, had

been negligent; and that the vehicle in which Ladd had been

driven was defective or in poor condition.                            RTI filed an answer

in which it denied the Ladds’ claims and raised an affirmative

defense that the suit was barred under the DBA.                               RTI also filed

a motion to dismiss or transfer in which it argued that it was

not   subject        to     personal         jurisdiction        in     the     District     of

Colorado.       In        September      2006,       the    District      Court       for   the

District of Colorado granted RTI’s motion and transferred the

case to the Eastern District of North Carolina.

      In August 2007, RTI filed a motion for summary judgment

arguing, among other things, that Ladd was receiving workers’

compensation     benefits           under      the   DBA,       which    constituted        his

exclusive    remedy.             The    district         court    awarded       RTI    summary

judgment,    finding        that     Ladd     was    a    statutory      employee      of   RTI

under the borrowed servant doctrine and holding that his suit

was barred under the DBA.                    The Ladds filed a timely notice of

appeal and we have jurisdiction under 28 U.S.C. § 1291.

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                                    II.

      The Ladds argue that the district court erred in applying

the   borrowed   servant   doctrine       to   find   Ladd     was    a   statutory

employee of RTI under the DBA. 1      2
                                           This Court reviews an award of

summary judgment de novo.          E.g., Moore v. Williamsburg Reg'l

Hosp., 560 F.3d 166, 171 (4th Cir. 2009).

      The DBA provides that “the provisions of the Longshore and

Harbor Workers’ Compensation Act [33 U.S.C. 901 et seq. (“the

LHWCA”)] shall apply in respect to the injury or death of any

employee   engaged   in    any   employment      .    .   .   under   a    contract


      1
        At oral argument, the Ladds argued that the borrowed
servant doctrine is an affirmative defense which RTI had failed
to plead in its answer and thereby waived.    RTI responded that
the borrowed servant doctrine is merely a legal theory under
which the DBA applies to the relationship between Ladd and RTI,
and that RTI had properly pleaded the DBA as an affirmative
defense in its answer.   RTI also contended the DBA divests the
district court of subject-matter jurisdiction over the Ladds’
claims and questions relating to subject-matter jurisdiction
cannot be waived.
     We do not address this argument because the Ladds did not
argue in the district court or on brief that the borrowed
servant doctrine was an affirmative defense or that RTI had
waived it through a failure to plead.     Accordingly, under the
well-settled rule in this Circuit, the issue is waived.     E.g.,
United States v. Chase, 466 F.3d 310, 314 n.2 (4th Cir. 2006);
Evans v. Metro. Life Ins. Co., 358 F.3d 307, 311 n.4 (4th Cir.
2004) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 241
n.6 (4th Cir. 1999)).
     2
       The Ladds also appeal from the district court’s denial of
their motion to re-open discovery and designate an expert to
testify about the condition of the vehicle’s tires. Because we
affirm the district court’s determination that the DBA bars the
Ladds’ suit as a matter of law, we do not reach this issue.



                                      4
entered into with the United States . . . where such contract is

to be performed outside the continental United States . . . .”

42 U.S.C.A. § 1651(a)(4) (West 2003).    In White v. Bethlehem

Steel Corp., 222 F.3d 146 (4th Cir. 2000), we determined that

the borrowed servant doctrine applies under the LHWCA to provide

immunity from suit both to an employee’s general or contract

employer and to other “employers who ‘borrow’ a servant from”

that employer.   Id. at 149.

    A person can be in the general employ of one company
    while at the same time being in the particular employ
    of another “with all the legal consequences of the new
    relation.” See Standard Oil Co. v. Anderson, 212 U.S.
    215, 220 [(1909)].   In order to determine whether an
    employee is a borrowed servant, courts “must inquire
    whose is the work being performed . . . by
    ascertaining who has the power to control and direct
    the servants in the performance of their work.”    Id.
    at 221-22.    The Supreme Court noted, however, the
    importance of "distinguishing between authoritative
    direction and control, and mere suggestion as to
    details or the necessary cooperation.” Id. at 222.
         The authority of the borrowing employer does not
    have to extend to every incident of an employer-
    employee relationship; rather, it need only encompass
    the servant’s performance of the particular work in
    which he is engaged at the time of the accident. See
    id. at 220; McCollum v. Smith, 339 F.2d 348, 351 (9th
    Cir. 1964).    When the borrowing employer possesses
    this authoritative direction and control over a
    particular act, it in effect becomes the employer. In
    that situation, the only remedy of the employee is
    through the LHWCA.
         . . . .
         In order to determine direction and control, a
    court may look at factors such as the supervision of
    the employee, the ability to unilaterally reject the
    services of an employee, the payment of wages and
    benefits either directly or by pass-through, or the
    duration of employment.     Ultimately, any particular

                               5
     factor only informs the primary inquiry--whether the
     borrowing employer has authoritative direction and
     control over a worker.

Id. (emphasis added).

     In this case, it is clear that RTI exercised the requisite

“authoritative     direction         and    control”     over    Ladd.        Ladd’s

contract with Chemonics expressly stated that, “[w]hile in Iraq,

[Ladd]    will   report    directly        to   RTI’s   Chief   of   Party,   Peter

Benedict, or any successor appointed by RTI.                    Mr. Benedict is

responsible for monitoring employee performance under the terms

of the contract.”         (J.A. 11.)        The contract also provided that

Ladd’s salary was subject to approval by RTI.                   The relationship

between Ladd and RTI was also explored in Ladd’s deposition,

where he stated that RTI had control over him in Iraq, that RTI

had the power to have him fired, and that RTI could reassign him

to different parts of Iraq.

     In response to RTI’s request for admissions, Ladd admitted

that “he was required to report directly to RTI’s Chief of Party

and was to follow the instructions and orders of RTI in the

performance of his work.”             (J.A. 249.)       Further, Ladd admitted

that on the day of the accident “it was RTI that ordered and

arranged the trip.”            Id.    Finally,      the Ladds admitted RTI’s

control   over   Ladd     in   Iraq   in    their   initial     complaint,    which

stated that “Ladd would report directly to RTI, his salary would



                                           6
be dependent upon the approval of RTI, and . . . RTI could amend

the duties to be performed . . . .”           (J.A. 2.)

     Because   the       facts    clearly      show   that      RTI     exercised

“authoritative direction and control” over Ladd in Iraq, the

district   court   did   not     err   in   concluding   that    Ladd    was   the

borrowed servant of RTI for the purposes of fulfilling its USAID

contract there.      As a borrowed servant, Ladd was a statutory

employee of RTI under the LHWCA and the DBA.                 Accordingly, the

Ladds’ suit is barred by the DBA as a matter of law and we

affirm the judgment of the district court.

                                                                         AFFIRMED




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