UNPUBLISHED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Unpublished Order of Certification of a question of law to the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