Delorice Bragg v. United States , 488 F. App'x 672 ( 2012 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 11-1342
    DELORICE BRAGG, as Administratrix of the Estate of; DON
    ISRAEL BRAGG; FREDA HATFIELD, as Administratrix of the
    Estate of; ELLERY HATFIELD,
    Plaintiffs - Appellants,
    v.
    UNITED STATES OF AMERICA,
    Defendant - Appellee.
    Appeal from the United States District Court for the Southern
    District of West Virginia, at Charleston.  John T. Copenhaver,
    Jr., District Judge. (2:10−cv−00683)
    Argued:   May 17, 2012                     Decided:   July 17, 2012
    Before AGEE, DAVIS, and WYNN, Circuit Judges.
    Unpublished Order of Certification of a question of law to the
    West Virginia Supreme Court of Appeals.
    ARGUED:   Bruce  E.   Stanley,  REED   SMITH,  LLP,   Pittsburgh,
    Pennsylvania, for Appellants.    Benjamin Seth Kingsley, UNITED
    STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
    ON BRIEF: Colin E. Wrabley, Alicia M. Schmitt, Lucas Liben, REED
    SMITH, LLP, Pittsburgh, Pennsylvania, for Appellants.        Tony
    West, Assistant Attorney General, Mark B. Stern, UNITED STATES
    DEPARTMENT OF JUSTICE, Washington, D.C.; R. Booth Goodwin II,
    United States Attorney, Charleston, West Virginia, for Appellee.
    PER CURIAM:
    As   representatives      of   the   estates   of    two   deceased    coal
    miners, Appellants brought this negligence and wrongful death
    action against the United States under the Federal Tort Claims
    Act (“FTCA”), 
    28 U.S.C. § 1346
    (b).           Appellants alleged that the
    negligence of the Mine Safety and Health Administration (“MSHA”)
    in its safety inspections of the Aracoma Coal Company’s Alma
    Mine (“Mine”) contributed to a fire that resulted in the death
    of the miners.      The district court dismissed the action because,
    in its view, under West Virginia law, a private person under
    like circumstances to those alleged against the United States
    would not be liable in a negligence action for the wrongful
    death of the miners.
    On   appeal,     Appellants     challenge      the    district   court’s
    interpretation   of     West    Virginia’s     tort      law.     Finding     no
    controlling   appellate     decision,      constitutional       provision    or
    statute of West Virginia resolving the determinative issue in
    this matter, we certify the following question of law to the
    West Virginia Supreme Court of Appeals pursuant to the Uniform
    Certification of Questions of Law Act, 
    W. Va. Code § 51
    -1A, et.
    seq.:
    Whether a private party conducting inspections of a
    mine and mine operator for compliance with mine safety
    regulations is liable for the wrongful death of a
    miner resulting from the private party’s negligent
    inspection?
    2
    This      Court      acknowledges        that    the        West    Virginia   Supreme
    Court of Appeals may reformulate this question.                            See 
    W. Va. Code § 51
    -1A-4.         In accordance with the requirement in 
    W. Va. Code § 51
    -1A-6,      we     identify     the    names      and     addresses       of    counsel   of
    record    and      unrepresented        parties       as    follows:       (1)    Counsel   of
    record for Appellants is Alicia M. Schmitt, Bruce E. Stanley,
    and   Colin     E.    Wrabley,     Reed    Smith,          LLP,    Suite    1200,    225    5th
    Avenue, Pittsburgh, PA 15222; (2) Counsel of record for Appellee
    is Benjamin Seth Kingsley, United States Department of Justice,
    Civil    Division,         Appellate     Staff,       Room    7261,       950    Pennsylvania
    Avenue, NW, Washington, DC 20530−0000; and Charles T. Miller and
    Fred B. Westfall, Jr., Office of the United States Attorney,
    Suite 4000, Southern District of West Virginia, 300 Virginia
    Street, East, P. O. Box 1713, Charleston, WV 25326−1713.
    I.
    Pursuant        to    
    W. Va. Code § 51
    -1A-4,        this    “certification
    order must contain: the facts relevant to the question, showing
    fully the nature of the controversy out of which the question
    arose.”       In complying with this requirement, we note that the
    district      court’s       dismissal      was      for      want    of    subject    matter
    jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and,
    consequently, “we must assume the truth of the material facts as
    3
    alleged in the complaint.”               White v. United States, 
    53 F.3d 43
    ,
    44 (4th Cir. 1995).
    On January 19, 2006, an over accumulation of combustible
    coal dust in the Mine caused a deadly fire.                           Although attempts
    were made to extinguish the fire and contain the smoke, these
    attempts were stymied by inadequate safety measures including,
    for example: a fire hose rendered useless because “the threads
    on the fire hose coupling did not match the threads on the
    outlet”; a lack of water because “the main water valve had been
    closed at the source, cutting off water to the area where the
    fire     had        started”;      inadequate      ventilation           controls        and
    ventilation safety barriers that failed to warn the miners of
    the danger and allowed smoke to flow “in the wrong direction,
    deeper into the mine . . . flooding the emergency escapeways”;
    and     the       absence   of    functioning      CO     detectors,         as   well    as
    malfunctioning         communications       equipment,      that       delayed       warning
    the miners of the danger and delayed evacuation.                        J.A. 9.
    Don         Israel    Bragg       (“Bragg”)        and      Ellery           Hatfield
    (“Hatfield”), together with ten other coal miners, were trapped
    in     the    underground        blaze   and     smoke.         Due     to    the     faulty
    ventilation system, smoke from the fire flooded the escape route
    and reduced visibility.              In the dark, the miners had difficulty
    finding       a    personnel     door    that    was    unmarked.            Although    the
    workers       attempted     to    utilize      breathing    devices          called   Self-
    4
    Contained Self-Rescuers to deal with the smoke, they lacked the
    training necessary to operate these devices.                             Ultimately, ten
    coal    miners    managed       to   escape       from    the    Mine,    but     Bragg    and
    Hatfield were killed by carbon monoxide intoxication.
    MSHA’s    investigation        of    the     Mine       fire    revealed    numerous
    violations of the Mine Safety and Health Act (“Mine Act”), 
    30 U.S.C. § 801
    , et. seq., by Aracoma Coal Company (“Aracoma Coal”)
    that contributed to the cause and severity of the fatal fire.
    MSHA’s investigation also revealed the inadequacies of its own
    previous inspections of the Mine.                    For example, by late 2005,
    MSHA inspectors issued 95 citations to Aracoma Coal for safety
    violations but failed to “identify and cite numerous violations
    that    were     in   existence,      neither       did        they    require    the     mine
    operator to take corrective actions.”                         J.A. 13.    Likewise, MSHA
    personnel      “failed     to    follow    explicit           Agency    policy    regarding
    Section 103(i) inspections [i.e., spot inspections]” by failing
    to     “undertake       reasonable     efforts           to    detect    mine     hazards”,
    through a “gross misallocation of inspector resources,” and by
    exhibiting       “a     lack    of   initiative           to    appropriately       conduct
    Section 103(i) inspections.”               J.A. 14.
    Accordingly, MSHA determined that its own inspectors were
    at fault for failing to identify or rectify many obvious safety
    violations       that    contributed        to     the        fire.      In   relation     to
    training, MSHA concluded that its inspector “assigned to inspect
    5
    the [Mine] did not determine whether the [atmospheric monitoring
    system] operator[, who ignored the CO alarms during the fire,]
    was adequately familiar with his duties and responsibilities,
    even though this determination was required of and understood by
    the inspector.”       J.A. 14.          The MSHA investigation also revealed
    that    “[a]n   adequate       inspection          by   MSHA    [of     the   atmospheric
    monitoring      system         (“AMS”)]            would      have    identified          the
    deficiencies with the AMS, including the fact that no alarm unit
    had been installed.”           J.A. 14.            In relation to the ventilation
    controls, the MSHA investigation confirmed that its inspectors,
    “demonstrated a lack of initiative to identify basic violations
    . . . even though the unmarked doors and missing stoppings were
    obvious and easily identifiable. . . . [such that] an adequate
    MSHA    investigation      .    .   .    would       have     identified      the    missing
    stoppings.”     J.A. 15.        The MSHA investigation also revealed that
    other     contributing         factors         to       the    fire      including        its
    “inadequate”     inspection             of     the      conveyor      belts         and   its
    “ineffective    use   of       MSHA’s        enforcement       authority”      in    issuing
    citations for accumulated coal dust.                    J.A. 16.
    MSHA’s   internal        report         speculated        that      conflicts      of
    interest may have contributed to its inspectors’ inadequate and
    ineffective inspection and enforcement of the Mine’s compliance
    with mine safety regulations:
    6
    The internal review team has concluded that mine
    inspectors neglected to issue citations in some
    situations in which citations were justified and that
    mine inspectors on occasion underestimated [Aracoma
    Coal’s] negligence and/or the gravity of the hazardous
    conditions when violations were cited. . . . The
    failure to propose more significant civil penalties
    likely interfered with the deterrent value that civil
    penalties are designed to have under the Mine Act. . .
    . [The internal review team believes that some of the
    identified deficiencies may have stemmed from the
    relationship that MSHA developed with Massey Energy
    Company representatives in early 2001. . . . [U]sing
    enforcement personnel in this manner to assist the
    Aracoma Coal Company with its compliance efforts may
    have created a conflict of interest that, over time,
    may have affected the level of scrutiny MSHA provided
    at [the Mine] during subsequent mine inspections.]
    J.A. 17.
    In    light   of   its   extensive   findings   of   inadequacy   and
    ineffectiveness in its inspections, supervision and enforcement
    at the Mine, MSHA’s internal investigation concluded as follows:
    It is the internal review team’s conclusion that, in
    the year before the January 19, 2006, fatal fire at
    the [Mine], MSHA did not conduct inspections in a
    manner that permitted us to effectively identify
    hazardous conditions at the mine, and did not utilize
    the Mine Act to effectively enforce health and safety
    standards promulgated to provide miners with the
    protections afforded by the statute. The Aracoma Coal
    Company’s indifference to health and safety conditions
    at the [Mine] and MSHA’s failure to more effectively
    enforce the Mine Act allowed significant hazards, many
    of which otherwise might have been identified and
    addressed, to continue in existence prior to the fatal
    fire. The Agency’s culpability rests with all persons
    who directly or indirectly were responsible for
    administering the Mine Act at the [Mine], from the
    inspectors who conducted the mine inspections through
    the headquarters office personnel who ultimately were
    responsible for overseeing MSHA activities throughout
    the Nation.
    7
    J.A. 19-20.
    II.
    Appellants, the widows of Bragg and Hatfield, instituted
    this action on April 28, 2010, invoking the federal district
    court’s jurisdiction pursuant to the FTCA.             The FTCA waives the
    sovereign immunity of the United States for torts committed by
    federal employees acting within the scope of their employment
    “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.”                 
    28 U.S.C. § 1346
    (b)(1).     Under the FTCA, the United States is liable “in
    the same manner and to the same extent as a private individual
    under like circumstances.”         
    28 U.S.C. § 2674
     (emphasis added);
    Kerns v. United States, 
    585 F.3d 187
    , 194 (4th Cir. 2009) (“An
    action under the FTCA may only be maintained if the Government
    would be liable as an individual under the law of the state
    where the negligent act occurred.”); see also United States v.
    Olson, 
    546 U.S. 43
    , 46 (2005) (explaining that the “words ‘like
    circumstances’ do not restrict a court’s inquiry to the same
    circumstances, but require it to look further afield” (quotation
    omitted)); Carter v. United States, 
    982 F.2d 1141
    , 1144 (7th
    Cir.     1992)   (“The    national    government      is      never       situated
    8
    identically to private parties.       Our task is to find a fitting
    analog under private law.”).
    The district court dismissed Appellants’ complaint on the
    basis that West Virginia law would not hold a private analogue
    to the MSHA inspectors liable for negligence resulting in the
    wrongful death of the miners.     In doing so, the district court
    rejected theories of liability based upon: (1) West Virginia’s
    general negligence principles as identified in Aikens v. Debow,
    
    208 W. Va. 486
    , 
    541 S.E.2d 576
     (2000), because “[i]rrespective
    of the foreseeability of risk” to the miners that may flow from
    the MSHA’s negligent inspection, J.A. 233, “overriding public
    policy concerns caution against imposing a legal duty upon the
    MSHA inspectors,” J.A. 233; and (2) West Virginia’s “special
    relationship” theory identified in Aikens because “based upon
    the relevant West Virginia case law, it does not appear that a
    private analogue to the MSHA inspectors would be held liable to
    the decedent miners under a special relationship theory.”      J.A.
    239.
    On appeal, Appellants contend that the district court erred
    in its analysis of both West Virginia’s general principles of
    negligence and its special relationship theory. *
    *
    The district court also rejected a theory of liability
    based upon West Virginia’s “voluntary undertaking” theory.   The
    district court concluded that the West Virginia Supreme Court of
    (Continued)
    9
    III.
    Several factors justify certification.                             We find no clear
    controlling West Virginia precedent to guide our decision.                                     At
    this stage of the litigation, there are no disputed fact issues,
    and the question presented is a pure question of state law,
    which    has    not     been    squarely      addressed            by   the    West    Virginia
    Supreme     Court      of    Appeals.         In     addition,          we     recognize      the
    importance       of    allowing        the   West        Virginia       Supreme       Court    of
    Appeals to decide questions of state law and policy with such
    far-reaching impact.            The question of whether a private party is
    liable to miners for their negligent safety inspection of a mine
    and     mine    operator       appears       to     be    a    matter         of   exceptional
    importance       for    West     Virginia.          In     short,       we     are    uncertain
    whether     the       West     Virginia      Supreme       Court        of    Appeals    would
    conclude       that    claims     by    miners      against         private        parties    for
    negligent safety inspections should be dismissed for failure to
    state a claim.
    Therefore, because no controlling West Virginia appellate
    decision,       constitutional          provision,            or    statute        appears     to
    address the precise question presented in this case, and the
    Appeals “would not hold a private analogue to the MSHA
    inspectors liable based on a ‘voluntary undertaking’ theory of
    liability.”   J.A. 231.   Appellants, however, have not advanced
    the “voluntary undertaking” theory on appeal.
    10
    answer to the certified question is potentially determinative of
    this appeal, the question is properly subject to review by the
    West Virginia Supreme Court of Appeals on certification.
    IV.
    Accordingly, pursuant to the privilege made available by 
    W. Va. Code § 51
    -1A-3, we respectfully hereby ORDER: (1) that the
    question stated above be certified to the West Virginia Supreme
    Court of Appeals for answer; (2) that the Clerk of this Court
    forward to the West Virginia Supreme Court of Appeals, under the
    official   seal   of   this    Court,      a   copy    of    this   Order    of
    Certification,    together    with   the    original    or   copies   of    the
    record before this Court to the extent requested by the West
    Virginia Supreme Court of Appeals; and (3) that the Clerk of
    this Court fulfill any request for all or part of the record
    simply upon notification from the Clerk of the West Virginia
    Supreme Court of Appeals.
    QUESTION CERTIFIED
    11
    

Document Info

Docket Number: 11-1342R1

Citation Numbers: 488 F. App'x 672

Judges: Agee, Davis, Per Curiam, Wynn

Filed Date: 7/17/2012

Precedential Status: Non-Precedential

Modified Date: 8/5/2023