UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 "statu-
tory 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 fed-
eral 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 Sur-
face 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 person-
nel 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' Com-
pensation 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 argu-
ments 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 neg-
          ligent 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" provi-
sion, 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 rem-
edy 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, busi-
        ness or occupation and contracts with any other person,
        (. . . referred to as "subcontractor") for the execution or per-
        formance 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 busi-
          ness;

          (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 Pro-
grams. Admiral Nanos supervised work at Pomflant. Based on Admi-
ral 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 busi-
ness; and (3) Navy personnel were performing identical work. Apply-
ing 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 fol-
lowed 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 cor-
rectly 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 Work-
ers' Compensation Law. He is correct in noting that the South Caro-
lina 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 pro-
pose 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 avail-
able 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 analy-
sis 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 cir-
cumstances 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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