Left Fork Mining Company, Inc. et al v. Hooker et al

Filing 22

OPINION & ORDER: Defendants' motion to dismiss (DE 12 ) is GRANTED and this matter is DISMISSED. A judgment shall be issued contemporaneously with this order. Signed by Judge Karen K. Caldwell on 3/17/2014.(RBB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
LEFT FORK MINING CO., et al.,

CIVIL ACTION NO. 6:13-08-KKC

Plaintiffs,
V.

OPINION & ORDER

IRVIN HOOKER, et al.,
Defendant.

*** *** ***
This matter is before the Court on the defendants’ motion to dismiss for failure to state
a claim for relief under Rule 12(b)(6) (DE 12).1 For the following reasons, the defendants’
motion will be granted.
***
Left Fork Mining Company operates a coal mine in Bell County, Kentucky under a lease
agreement with Manalapan Land Company, Ltd. and Black Star Land and Mining
Company, Ltd. Under the agreement, Left Fork pays Manalapan and Black Star royalties
for the coal mined on their property. Left Fork then supplies the coal to Cumberland River
Energies, LLC, who sells the coal to various third-party purchasers. Bennett Resources,
LLC leases mining equipment to Left Fork. Collectively, these companies make up the
plaintiffs in this case.

On December 9, 2013, three of the plaintiffs filed a suggestion of bankruptcy indicating they are
seeking relief under Chapter 7 of the bankruptcy code. (DE 19, 20, and 21). In their filings, the
plaintiffs mistakenly assert that the present litigation is subject to the bankruptcy law’s automatic
stay. The automatic stay applies only to proceeding brought against the debtor. 11 U.S.C. § 362(a)(1)
(emphasis added). It does not apply to proceedings, such as the present litigation, where the plaintiff
has filed for bankruptcy because the judicial proceeding is not being brought against the debtor.
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The plaintiff companies bring suit against six employees of the Federal Mine Safety &
Health Administration (MSHA) District 7, alleging that the actions of these six employees
led to the destruction of their property—including the mine itself and the valuable
equipment inside. They assert a violation of their constitutional rights under the Fifth
Amendment and various state-law tort claims brought through supplemental jurisdiction.
In considering whether to grant a motion to dismiss, the court must view the allegations
in the complaint in the light most favorable to the plaintiff, treating all well-pleaded facts
as true. See Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009)
(citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009)). According to the complaint,
the events leading to the present action began on March 22, 2011. On this date, several
MSHA representatives issued Citation No. 8353801 due to an elevated methane reading
observed during a routine inspection. This citation permitted Left Fork the opportunity to
abate the condition by submitting a remedial plan to MSHA. In addition to the citation,
however, the MSHA inspector issued an order pursuant to § 107(a) of the Mine Act. This
order declared that an imminent danger existed throughout the mine. It directed an
immediate evacuation of all personnel. MSHA representatives also issued Order No.
8353802 pursuant to § 103(k) of the Mine Act, which prohibited all Left Fork
representatives from entering or performing any work in the mine due to the methane
reading around its seals. The two orders combined to prevent any Left Fork employees from
entering the Mine.
Following the issuance of these orders, mine rescue teams entered the mine and reinstalled a fallen ventilation curtain, which allowed the methane levels to return to normal.
Despite this, the MSHA employees would not permit employees of Left Fork to reenter the
mine, instead requiring that they submit a plan to repair a crack found in the strata above
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the seal. Left Fork submitted an abatement plan the next day, on March 23. On March 29,
2011, MSHA issued Order No. 8353807-01 pursuant to § 104(b) of the Mine Act due to Left
Fork’s alleged failure to abate prior Citation No. 8353801. This order (the “Original B”
order) claimed that Left Fork failed to submit an abatement plan despite the March 23
proposal. According to the complaint, the plaintiffs attempted to abate the order on
numerous occasions but were unable to do so because the defendants refused to grant Left
Fork access the mine.
On or about May 17, 2011, Left Fork submitted a plan to abandon the Straight Creek
Seam by installing “water seals.” (DE 1, ¶ 40–41). This plan was withdrawn in June of 2011
and Left Fork submitted a conventional seal plan—all at the defendants’ request. In July,
the defendants requested that the plaintiffs withdraw their conventional seal plan and
submit a new one, which the plaintiffs did. Over the next few months, this interaction
between the plaintiffs and defendants continued: the defendants requested changes to the
plan, the plaintiffs complied, and the defendants responded by requesting more changes.
The back and forth between the parties culminated in January 2012, when the plaintiffs
allege that the defendants finally approved the conventional seal plan but advised them
that they had only three days to begin construction. If the plaintiffs did not meet this short
timeline, the MSHA employees threatened to shut the mine down.
During this time, Defendant Dannie Lewis issued a modification to the Original B order
on January 11, 2012 (the “Modified B Order”). This modification required Left Fork to deenergize the entire mine, which caused the mine to immediately begin flooding as the
electric water pumps shut down. In light of the Modified B Order, the plaintiffs began
discussing with the defendants ways in which it could restore power and prevent further
flooding. These discussions ultimately proved fruitless, and although MSHA eventually
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approved a conventional seal plan on January 13, 2012, they refused to allow Left Fork to
take action to stop the flooding or retrieve any equipment that could be salvaged.
This eventually led Left Fork to seek relief from the Federal Mine Safety and Health
Review Commission, which bears responsibility for reviewing orders and citations issued by
MSHA. Left Fork filed a Notice of Contest with the Commission seeking expedited review of
the Modified B Order, and the claim was heard on January 30 and 31, 2012. On April 3,
2012, the Administrative Law Judge ruled in the plaintiffs favor, finding that both the
Original and Modified B Orders were invalid. Because the ALJ ruled in their favor, no
further appeal was necessary.
Despite the favorable ruling by the ALJ, the plaintiffs experienced significant property
damage and allege that to this day they are unable to de-water the mine and retrieve their
equipment. They now bring this action for damages against six agents of MSHA whom they
believe were involved in constitutional violations and state law torts that led to the
destruction of their property.
ANALYSIS
The plaintiffs’ complaint can be divided into two parts. First is the constitutional claim
that the defendants violated the plaintiffs’ Fifth Amendment rights by causing the
destruction of their property without due process of law. Second, the plaintiffs bring a
series of state tort claims, including trespass, civil conspiracy, abuse of process, intentional
interference with contract, and a claim for punitive damages. The Court will analyze these
two sets of claims in turn.
A. Plaintiffs’ Constitutional Claim
The Fifth Amendment protects individuals from being “deprived of life, liberty, or
property without due process of law.” U.S. Const., Amend. V. In their complaint, the
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plaintiffs allege that the defendants—who are agents of the United States acting under
color of federal law—deprived them of their property without due process by issuing illegal
orders to vacate their mine and shut down its power while knowing that the mine would be
destroyed by flooding before any review of the orders could be heard. Because there is no
federal counterpart to § 1983 of the Civil Rights Act permitting individuals to seek damages
against federal officials who violate their constitutional rights, the plaintiffs’ claim is
brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971). Under Bivens, individuals can bring a damages suit against federal
employees for violating their constitutional rights in a set of very limited circumstances.
The primary thrust of the defendants’ motion to dismiss is that the Mine Act’s intricate
statutory scheme precludes the plaintiffs from relying on Bivens in this case.2
A Bivens remedy is not available simply whenever an individual claims a federal official
violated the constitution and caused him damages. Rather, the Supreme Court has
narrowed its applicability to only a few set of circumstances, and in most cases the Court
has refused to expand the doctrine any further. See Schweiker v. Chilicky, 487 U.S. 412,
421–422 (1988) (“Our more recent decisions have responded cautiously to suggestions that
Bivens remedies be extended into new contexts.”); United States v. Stanley, 483 U.S. 669,
681 (1987) (refusing to recognize a new Bivens remedy); Bush v. Lucas, 462 U.S. 367, 368
(1983) (unanimously refusing to recognize a Bivens remedy for First Amendment violations
“aris[ing] out of an employment relationship that is governed by comprehensive procedural
and substantive provisions giving meaningful remedies against the United States”). See
also Jones v. Tennessee Valley Authority, 948 F.2d 258, 264 (6th Cir. 1991) (finding no
The defendants submit two alternative arguments for dismissal. First, they contend that the
plaintiffs’ allegations do not amount to a constitutional violation, and second, that the defendants
are entitled to qualified immunity. Because the Court finds that the plaintiffs cannot bring suit
under Bivens, it is unnecessary to address these alternative claims.
2

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Bivens remedy available where relief under the Civil Service Reform Act and Energy
Reorganization Act was available).
In a recent opinion, the Supreme Court explained that courts are generally guided by a
two-step process to determine whether or not a new Bivens remedy is necessary. See Wilkie
v. Robbins, 551 U.S. 537, 550 (2007). First, courts consider “whether any alternative,
existing process for protecting the interest amounts to a convincing reason for the Judicial
Branch to refrain from providing a new and freestanding remedy in damages.” Id. (citing
Bush, 462 U.S. at 378). Second, if no such remedial scheme exists, “the federal courts must
make the kind of remedial determination that is appropriate for a common-law tribunal,
paying particular heed, however, to any special factors counseling hesitation before
authorizing a new kind of federal litigation.” Id. (citing Bush, 462 U.S. at 378). It is the first
of these steps on which the defendants ground their motion.
“The Court has not created additional Bivens remedies where the design of a
government program suggests that Congress provided what it considered adequate
remedial mechanisms for constitutional violations that may occur in the course of its
administration.” Jones, 948 F.2d at 263. In these circumstances, “Congress is in a better
position to decide whether or not the public interest would be served by creating a new
substantive legal liability.” Id. at 263 (citing Bush, 462 U.S. at 390). Further, courts will not
“decide whether or not it would be good policy to permit a [plaintiff] to recover damages” for
an alleged constitutional violation because such a determination is more appropriately
reserved for Congress. Bush, 462 U.S. at 390. For this reason, the Supreme Court has
generally refused to recognize a new Bivens action where Congress has devised a remedial
structure where claimants can pursue relief.

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The Mine Act’s extensive and comprehensive review process is the kind of remedial
structure precluding a judicially-created remedy. Under the Mine Act, mine operators may
appeal citations or orders issued under § 814 within thirty days. See § 815(a), (d). Such
challenges are heard by an administrative law judge, who is appointed by the Federal Mine
Safety and Health Review Commissioner. See § 823(d); § 823(a). If a party is unsatisfied
with the ALJ’s ruling it may seek discretionary review from the Commission under 30
U.S.C. § 823(d)(2)(A)(ii)(V), and the Commission may review—on its own initiation—any
decision “contrary to law or Commission policy” or in which “a novel question of policy has
been presented.” 30 U.S.C. § 823(d)(2)(B). Moreover, the Commission has the power to
grant both temporary relief and expedited review. See § 815(b)(2), (d).
Finally, the Mine Act prescribes specific circumstances under which judicial review of
the administrative proceedings is permitted. Under § 816(a)(1), “[a]ny person adversely
affected or aggrieved by an order of the Commission issued under this chapter may obtain
review of such order in any United States court of appeals for the circuit in which the
violation is alleged to have occurred or in the United States Court of Appeals for the
District of Columbia Circuit.” The court of appeals has “exclusive jurisdiction” and any
judgment rendered “shall be final” subject to review by the Supreme Court of the United
States. § 816(a)(1). Notably, district courts are granted jurisdiction in only two limited
cases: to enjoin habitual operator violations of health and safety standards and to enforce
payment of civil penalties. See 30 U.S.C. § 818(a); 30 U.S.C. § 820(j). Both of these
circumstances involve cases where the federal officials bring suit. “Mine operators enjoy no
corresponding right [to sue] but are to complain to the Commission and then to the court of
appeals.” Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 209 (1994).

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In Thunder Basin Coal Co v. Reich, the Supreme Court considered whether “the Mine
Act precludes district court jurisdiction over [ ] pre-enforcement challenge[s].” Id, at 207.
Although the case did not concern the availability of a Bivens remedy, the Court evaluated
whether Congress had created a statutory scheme and remedial structure sufficient to
allow “meaningful review” of a party’s claims. Id. The Supreme Court analyzed the review
process described above and concluded that the Act “establishes a detailed structure for
reviewing violations of ‘any mandatory health or safety standard, rule, order, or regulation
promulgated under the Act.’” Id. (quoting 30 U.S.C. § 814(a)). In fact, the ruling went so far
as to examine the legislative history, and the Supreme Court found “persuasive evidence
that Congress intended to direct ordinary challenges under the Mine Act to a single review
process.” Id. at 211 (emphasis added) (describing how Congress rejected an amendment to
the Mine Act that would have authorized de novo district court review of penalty
assessments). Significantly, the Court considered whether the statutory remedies in the
Mine Act provided meaningful relief to parties claiming constitutional errors and noted that
both the Commission and the court of appeals were capable of addressing potential
constitutional issues that might arise. Id. at 215 (noting that “[t]he Commission has
addressed

constitutional

questions

in

previous

enforcement

proceedings”

and

“constitutional claims [ ] can be meaningfully addressed in the Court of Appeals”).
Considering the Supreme Court’s approving review of the Mine Act’s remedial process
by which individuals may seek redress in the face of contested orders or citations along
with this Court’s own examination of its terms, the Court finds that the Mine Act precludes
recognition of a Bivens remedy in this case. The Mine Act provides aggrieved parties
multiple opportunities for review, including expedited review and temporary relief. It is
exactly the kind of statutory scheme where Congress’s intent to prescribe the available
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remedies for claimants precludes recognition of a new cause of action for damages—even
when damages are not among the available statutory remedies. See Bush, 462 U.S. at 388;
Jones, 948 F.2d at 263–64 (explaining that “courts must give appropriate deference to
indications that congressional inaction has not been inadvertent and should not create
Bivens remedies when the design of a government program suggests that Congress has
provided what it considers to be adequate remedies for constitutional violations”).
The Court is mindful that in this case the Mine Act’s remedial structure might have
been insufficient to prevent loss to the plaintiff’s property or subsequently make them
whole. Here, administrative review of the unlawful order did not prevent flooding to the
mine, and because the plaintiffs prevailed before the ALJ they had no grounds for appellate
review in the court of appeals. Moreover, the Mine Act does not provide a damages remedy
to claimants when an MSHA employee’s order is subsequently deemed invalid. But none of
these facts justify recognition of a new Bivens remedy in the face of the Mine Act’s statutory
structure. The Supreme Court has made it clear that the lack of money damages for
constitutional torts is insufficient to give rise to a new Bivens remedy when “the existence
of statutory mechanisms giv[e] meaningful remedies against the United States, even though
those remedies do not provide ‘complete relief’ to the claimant.” Schweiker, 487 U.S. at 413
(emphasis added). Congress granted plaintiffs a remedy by allowing administrative review
of unlawful orders, which the plaintiffs sought and ultimately prevailed on. The fact that
the plaintiffs cannot seek relief in the form of damages is insufficient for this Court to
second-guess the remedial scheme devised by Congress by creating a new freestanding
claim for damages. See Jones, 948 F.2d at 263–64.
Finally, the plaintiffs mistakenly contend that Mine Act cannot preclude a Bivens
remedy in this case because Left Fork is the only plaintiff who had standing to pursue
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administrative relief. The other plaintiffs, all of whom have claimed damage, were not the
direct subjects of the invalid orders and thus could not contest them. Under 29 C.F.R.
§ 2700.4(b)(2), however, non-miner parties are permitted to intervene in administrative
challenges to protect their relevant interests. The plaintiffs’ claim that they lacked standing
is therefore without merit.
For these reasons, the defendants’ motion to dismiss the constitutional claims brought
pursuant to Bivens will be granted.
B. Plaintiffs State Tort Claims Must Be Dismissed
The second half of the plaintiffs’ complaint arises in the form of several tort actions
brought pursuant to this Court’s supplemental jurisdiction. The defendants contend that
these counts must be dismissed due to the fact that torts against federal officials must be
brought pursuant to the Federal Tort Claims Act and must name the United States as the
defendant, neither of which have been done here.
The defendants are correct that the plaintiffs’ claims fail to satisfy the requirements of
the Federal Tort Claims Act and therefore must be dismissed. Federal employees are
accorded absolute immunity from common-law tort claims “arising or resulting from the
negligent or wrongful act or omission of any employee of the Government while acting
within the scope of his office or employment.” See 28 U.S.C. § 2679(b)(1) (stating that the
remedy against the United States is exclusive and precludes “[a]ny other civil action or
proceeding . . . against the employee”). Rather than bringing suit against the employee,
plaintiffs must name the United States as the defendant and a failure to do so deprives the
court of subject-matter jurisdiction. See Allgeier v. United States, 909 F.2d 869, 871 (6th
Cir. 1990) (“Failure to name the United States as defendant in an FTCA suit results in a
fatal lack of jurisdiction.”). The plaintiffs concede that they have not named the United
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States as a defendant and have no intention of doing so (DE 15, at 28). Accordingly, the
state tort claims brought against the defendants, all of whom are employees of the federal
government and sued for acts taken in the course of their employment, must be dismissed.
CONCLUSION
Accordingly, and for the above-stated reasons, the defendants’ motion to dismiss (DE
12) is GRANTED and this matter is DISMISSED. A judgment shall be issued
contemporaneously with this order.
Dated this 17th day of March, 2014.

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