Delorice Bragg v. US
Filing
OPINION/ORDER CERTIFYING QUESTION to state court in West Virginia. Originating case number: 2:10-cv-00683 Copies to all parties and district court. [998896342] [11-1342]
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UNPUBLISHED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Unpublished Order of Certification of a question of law to the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.
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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,
interpretation
controlling
of
Appellants
West
appellate
challenge
Virginia’s
decision,
the
tort
district
court’s
law.
Finding
no
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
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This
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Court
acknowledges
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that
the
West
Virginia
Court of Appeals may reformulate this question.
§ 51-1A-4.
51-1A-6,
record
See W. Va. Code
In accordance with the requirement in W. Va. Code §
we
and
Supreme
identify
the
unrepresented
names
parties
and
as
addresses
of
counsel
of
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
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alleged in the complaint.”
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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
malfunctioning
of
functioning
communications
CO
detectors,
equipment,
that
Israel
Bragg
(“Bragg”)
and
well
delayed
the miners of the danger and delayed evacuation.
Don
as
as
warning
J.A. 9.
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.
finding
a
personnel
workers
attempted
to
In the dark, the miners had difficulty
door
that
utilize
was
unmarked.
breathing
4
devices
Although
called
the
Self-
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Contained Self-Rescuers to deal with the smoke, they lacked the
training necessary to operate these devices.
coal
miners
managed
to
escape
from
the
Ultimately, ten
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
operator to take corrective actions.”
J.A. 13.
personnel
Agency
“failed
to
follow
explicit
the
mine
Likewise, MSHA
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
Section 103(i) inspections.”
to
appropriately
conduct
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
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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.”
that
“[a]n
monitoring
J.A. 14.
The MSHA investigation also revealed
adequate
inspection
system
(“AMS”)]
by
MSHA
would
[of
have
the
atmospheric
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
stoppings.”
other
.
J.A. 15.
contributing
“inadequate”
“ineffective
.
of
would
have
factors
to
the
of
MSHA’s
the
conveyor
enforcement
citations for accumulated coal dust.
MSHA’s
internal
identified
the
missing
The MSHA investigation also revealed that
inspection
use
.
report
fire
including
belts
authority”
and
in
its
its
issuing
J.A. 16.
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:
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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.
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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.”
§ 1346(b)(1).
28 U.S.C.
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
8
is
never
situated
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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)
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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
Supreme
not
Court
importance
been
of
of
squarely
addressed
by
the
West
In
addition,
we
recognize
West
Virginia
Appeals.
allowing
the
Supreme
Virginia
Court
the
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
importance
whether
conclude
for
the
that
appears
West
West
Virginia.
Virginia
claims
to
by
be
In
Supreme
miners
a
matter
of
exceptional
short,
we
are
Court
of
Appeals
against
private
uncertain
would
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.
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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
Certification,
of
this
together
Court,
with
the
a
copy
original
of
or
this
Order
copies
of
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
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