Chapter 9. Welcome to Our World: MSHA Vulnerability to Suit Under Federal Tort Claims Act for Negligent Inspection

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1 Chapter 9 CITE AS 34 Energy & Min. L. Inst. 9 (2013) Welcome to Our World: MSHA Vulnerability to Suit Under Federal Tort Claims Act for Negligent Inspection Gretchen M. Callas 1 Jackson Kelly PLLC Charleston, West Virginia Synopsis Introduction Overview of the Federal Tort Claims Act (FTCA) [1] Asserting an FTCA Claim [a] Relevant Time Periods [b] Monetary Restrictions [c] Like Circumstances [2] Discretionary Function Exception [a] Dalehite v. United States [b] Indian Towing Co. v. United States [c] United States v. S.A. Impresa de Viacao Aerea Rio Grandense (Varig Airlines) [d] Berkovitz v. United States [e] United States v. Gaubert [f] Application of the Discretionary Function Exception Application of the FTCA to the Mine Safety and Health Administration (MSHA) [1] Elements to Establish a Claim Against MSHA [2] Myers v. United States [3] Ayala v. United States [4] United States v. Olson [a] Decisions of the District Court and the Court of Appeals [b] The United States Supreme Court Decision Gretchen M. Callas is a member of Jackson Kelly PLLC s Commercial Litigation Practice Group. Her practice focuses on defending coal companies in civil litigation arising from workplace injuries. Ms. Callas wishes to thank Alyssa Baute and Adam Schwendeman for their assistance with this chapter.

2 9.01 ENERGY & MINERAL LAW INSTITUTE The Aracoma Mine Disaster [1] The Fire [2] Findings Regarding the Cause of the Fire [3] MSHA s Role in the Disaster [a] MSHA s Failures [b] The Cause of MSHA s Failures Delores Bragg v. United States [1] United States District Court, Southern District of West Virginia [2] Jurisdiction and the FTCA [3] Discretionary Function Exception [4] United States Court of Appeals, Fourth Circuit [5] The Supreme Court of Appeals of West Virginia Practical Implications of MSHA Liability Introduction. It goes without saying that MSHA s (Mine Safety and Health Administration) involvement in the day to day lives of coal operators has increased dramatically over the last five years. With this level of involvement comes a corresponding level of responsibility and, as we will see over the course of this presentation, accountability. As MSHA s enforcement power increases so does its perceived ability to play a more central role in the prevention of all manner of coal mine accidents. If it is foreseeable that harm to a miner could occur if MSHA does not act, then MSHA s failure to act opens it up to civil liability Overview of the Federal Tort Claims Act. The Federal Tort Claims Act (FTCA) 2 was enacted in 1948 to make the United States tort liability the same as that of a private person under like circumstance, in accordance with local law. 3 Subject to exceptions, the FTCA establishes that the United States is liable for the tortious actions of its employees or, more specifically, 2 Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), S. Rep. No , at 32 (1946). 354

3 MSHA AND CIVIL LIABILITY 9.02 for money damages,... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or 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. 4 The FTCA contains numerous exceptions, exempting the United States from liability, including claims alleging: (1) injuries sustained by military personnel during service; 5 (2) performance of a discretionary function; 6 (3) intentional torts; 7 (4) strict liability; 8 (5) interest prior to judgment or punitive damages; 9 (6) acts or omissions of a federal employee exercising due care in the execution of a statute or regulation; 10 (7) loss, miscarriage, or negligent transmission of letters or postal matter ; 11 (8) tortious assessment or collection of taxes or customs duty; 12 (9) injuries resulting from combatant activity; 13 and (10) claims arising in a foreign country. 14 [1] Asserting an FTCA Claim. United States District Courts have original jurisdiction over FTCA claims. 15 However, in order to file a suit under the FTCA, the claim must first have been presented to the appropriate Federal agency and been finally 4 28 U.S.C. 1346(b)(1) (2011). 5 5 U.S.C. 8116(c) (2000); Feres v. U.S., 340 U.S. 135 (1950) U.S.C. 2680(a) (2006). 7 Id. at 2680(h). 8 Id. at 2680(b)(1) U.S.C (2000). 10 Id. at 2680(a). 11 Id. at 2680(b). 12 Id. at 2680(c). 13 Id. at 2680(j). 14 Id. at 2680(k). 15 Id. at 1364(a) (1987). 355

4 9.02 ENERGY & MINERAL LAW INSTITUTE denied in writing. 16 Upon denial of a claim, a suit may be filed. Suits filed pursuant to the FTCA are tried without a jury. 17 [a] Relevant Time Periods. A claim asserted under the FTCA must be presented to the appropriate federal agency within two years after the claim accrues. 18 If a claim is finally denied by the federal agency within six months of notification, a suit must be filed in federal court within six months. 19 If the claim is not finally denied by the federal agency within six months of notification, such a failure is deemed a final denial of the claim for purposes of this section, 20 but the claimant is not limited to a specific time period in which to file suit in federal court. 21 [b] Monetary Restrictions. Claimants are limited to the amount of the claim as first presented to the federal agency, and may not demand an amount in excess of such figure in actions instituted under the FTCA. 22 Further, federal agencies may not settle FTCA claims for more than $25,000 without the prior written approval of the Attorney General, unless the Attorney General has delegated such authority, 23 and [s]uch delegations may not exceed the authority delegated by the Attorney General to the United States attorneys to settle claims for money damages against the United States. 24 Attorneys fees for FTCA claims resolved through the federal agency notification process are limited to twenty percent of a claimant s award, compromise, or settlement. 25 Attorneys fees for FTCA claims resolved by judgment of the court are limited to 25 percent of the judgment for 16 Id. at 2675(a) (2000). 17 Id. at 2402 (1997). 18 Id. at 2401(b) (2011). 19 Id.; 28 U.S.C. 2675(a) U.S.C. 2675(a). 21 See Pascale v. U.S., 998 F.2d 186 (3d Cir. 1993) U.S.C. 2675(b). 23 Id. at 2672 (2000). 24 Id. 25 Id. at 2678 (2000). 356

5 MSHA AND CIVIL LIABILITY 9.02 the claimant. 26 The United States may not be ordered to pay a claimant s attorneys fees absent bad faith. 27 [c] Like Circumstances. As a threshold matter to determine whether the FTCA applies, courts have focused much attention on the language stating that the United States is liable in the same manner and to the same extent as a private individual under like circumstances. 28 Whether the activity in question constitutes like circumstances is not limited to inquiry into the same circumstances. 29 Rather, there must be a similar analogy. 30 At least one federal circuit court of appeals has certified a question to a state supreme court to determine whether private individuals in that state would be liable in like circumstances where a claim was asserted against the government pursuant to the FTCA. 31 [2] Discretionary Function Exception. Section 2680(a) of the FTCA provides, in part, that the Act does not apply to claims based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the government, whether or not the discretion involved be abused. 32 In enacting what has been termed the discretionary function exception to the FTCA, Congress wished to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in 26 Id. 27 Id. at 2412(b), 2412(d)(1)(A) (2011). See also Alyeska Pipeline Serv. Co. v. Wilderness Soc y, 421 U.S. 240, (1975) ( a court may assess attorneys fees... when the losing party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons ) (internal citations omitted) U.S.C U.S. v. Olson, 546 U.S. 43, 46 (2005); Indian Towing Co. v. U.S., 350 U.S. 61, 64 (1955). 30 Olson, 546 U.S. at See discussion of Bragg v. U.S. infra U.S.C. 2680(a). 357

6 9.02 ENERGY & MINERAL LAW INSTITUTE tort. 33 The exception has since become [t]he most gaping and frequently litigated of the FTCA s exceptions. 34 While interpretations of the discretionary function exception are irresolute, courts agree that it is the government s burden of proof to establish that the exception applies and, generally, construe the exception broadly. Five major United States Supreme Court decisions have addressed the interpretation of the discretionary function exception, each providing some guidance: Dalehite v. United States, 35 Indian Towing Co. v. United States, 36 United States v. S.A. Impresa de Viacao Aerea Rio Grandense (Varig Airlines), 37 Berkowitz v. United States, 38 and United States v. Gaubert. 39 [a] Dalehite v. United States. 40 Dalehite was the first Supreme Court decision to discuss the discretionary function exception. Plaintiffs brought suit under the FTCA based upon allegations that the government was negligent in developing a fertilizer export program causing a fire, which killed Henry G. Dalehite. 41 The Court ultimately determined that the discretionary function exception applied to the facts of the case on the grounds that there was judgment exercised in the planning, initiation, and scheduling of operations of the fertilizer export program and activities related to its execution. 42 More broadly, the Court stated, [w]here there is room for policy judgment and decision there is 33 Berkovitz v. U.S., 486 U.S. 531, , n.4 (1988) (citing U.S. v. Varig Airlines, 467 U.S. 797, (1984)). 34 James R. Levine, Note, The Federal Tort Claims Act: A Proposal for Institutional Reform, 100 Colum. L. Rev. 1538, 1541 (2000). 35 Dalehite v. United States, 346 U.S. 15 (1953). 36 Indian Towing Co., 350 U.S. at United States v. S.A. Impresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797 (1984). 38 Berkowitz, 486 U.S. 531 (1954). 39 United States v. Gaubert, 499 U.S. 315 (1991). 40 Dalehite, 346 U.S. at Id. at Id. at

7 MSHA AND CIVIL LIABILITY 9.02 discretion. 43 However, the Court expressly limited its interpretation of the exception, indicating that it did not intend to define when the discretionary function exception does not apply: It is unnecessary to define, apart from this case, precisely where discretion ends. 44 [b] Indian Towing Co. v. United States. 45 In Indian Towing, the Supreme Court indicated satisfaction with its decision in Dalehite, but also provided additional guidance as to what does not fall into the discretionary function exception. 46 The government argued that the exception must be read as excluding liability in the performance of activities which private persons do not perform. Thus, there would be no liability for negligent performance of uniquely governmental functions. 47 The Court disagreed with the government s position, determining that such a position would push the courts into the non-governmental governmental quagmire that has long plagued the law of municipal corporations. 48 Further, the Court did not express disagreement with the assertion that the Federal Tort Claims Act does provide for liability in some situations on the operational level of its activity. 49 Accordingly, the Indian Towing decision provides that a uniquely governmental function analysis is unworkable, and not a basis on which the discretionary function exception may be asserted. [c] United States v. S.A. Impresa de Viacao Aerea Rio Grandense (Varig Airlines). 50 The plaintiff in Varig Airlines brought suit under the FTCA, asserting negligent inspection of aircrafts by the Federal Aviation Administration 43 Id. at Id. at Indian Towing, 350 U.S. at See id. at 64, Id. at Id. at Id. at Varig Airlines, 467 U.S. at

8 9.02 ENERGY & MINERAL LAW INSTITUTE (FAA). 51 The FAA developed a safety certification system for aircrafts to ensure compliance with FAA regulations, but allowed a less thorough inspection of aircrafts by manufacturers that had demonstrated competence. 52 The Court determined that the implementation of the spot-check system, as well as its application, fell into the discretionary function exception of the FTCA. 53 Particularly, the Court noted, [w]hen an agency determines the extent to which it will supervise the safety procedures of private individuals, it is exercising discretionary regulatory authority of the most basic kind. Decisions as to the manner of enforcing regulations directly affect the feasibility and practicality of the government s regulatory program; such decisions require the agency to establish priorities for the accomplishment of its policy objectives by balancing the objectives sought to be obtained against such practical considerations as staffing and funding. 54 The Court also clarified that it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case. 55 [d] Berkovitz v. United States. 56 In Berkovitz, the Supreme Court created a two-prong test to be employed in examining the nature of the conduct, as outlined in Varig Airlines. 57 First, a court must consider whether the action is a matter of choice for the acting employee. This inquiry is mandated by the language of the exception; conduct cannot be discretionary unless it involves an element of judgment or choice. 58 The Court continued, when a federal statute, regulation, or 51 Id at Id. at Id. at Id. at Id. at Berkovitz, 486 U.S. at Id. at Id. 360

9 MSHA AND CIVIL LIABILITY 9.02 policy specifically prescribes a course of action for an employee to follow the discretionary function exception will not apply, because the element of judgment or choice is instead a mandated function. 59 The second prong outlined by the Court in Berkovitz requires that a court determine whether that judgment is of the kind that the discretionary function exception was designed to shield. 60 The Court went on to express further limitation to the exception, providing that it protects only governmental actions and decisions based on considerations of public policy. 61 [e] United States v. Gaubert. 62 Most recently, in Gaubert, the United States Supreme Court affirmed its decision in Berkovitz and clearly outlined the following rule: the discretionary function exception covers only acts that are discretionary in nature, acts that involv[e] an element of judgment or choice,... and it is the nature of the conduct, rather than the status of the actor that governs whether the exception applies. 63 Where a government action is in violation of a mandatory statute, regulation, or policy and the actions are not susceptible to policy analysis, an FTCA claim survives a motion to dismiss by the government on the grounds of the discretionary function exception. 64 To the contrary, where a government official has discretion and the action is susceptible to policy analysis, there is a strong presumption in favor of the discretionary function exception s applicability. 65 [f] Application of the Discretionary Function Exception. At the district court level, the success rate in asserting the discretionary function exception has risen to 76.3 percent post-gaubert, as compared to 59 Id. 60 Id. 61 Id. at 537 (citing Dalehite, 346 U.S. at 36). 62 Gaubert, 499 U.S. at Id. at 322 (citing Berkovitz, 486 U.S. at 536; Dalehite, 346 U.S. at 34; Varig Airlines, 467 U.S. at 813). 64 See id. at 322, 325, Id. at 322,

10 9.02 ENERGY & MINERAL LAW INSTITUTE 69.9 percent pre-gaubert. 66 Accordingly, courts seem to generally find sufficient grounds to prohibit suit against the government under the FTCA pursuant to the discretionary function exception. However, by way of example, courts have found that the discretionary function exception does not apply in the following circumstances: where the government undertakes to operate a lighthouse, its negligent maintenance of the same is subject to liability under the FTCA; 67 where the government advances no other reason for its actions or inactions aside from the choice to spend its limited funds in other ways, the discretionary function exception does not apply ; 68 where the government fails to follow a prescribed federal policy designed to increase safety in a specific area, the discretionary function exception does not apply; 69 where the government fails to follow a plan designed to eliminate criminal activity on the grounds that it acted to protect the historic integrity of the area, the discretionary function exception does not apply; 70 where the government asserts it made a decision subjecting others to potential for injury or damages based on a broad organizational policy, the discretionary function exception does not apply; Jonathan R. Bruno, Note, Immunity for Discretionary Functions: A Proposal to Amend the Federal Tort Claims Act, 49 Harv. J. on Legis. 411, 430 (2012). 67 Indian Towing Co., 350 U.S. at O Toole v. U.S., 295 F.3d 1029, 1036 (9th Cir. 2002). 69 Navarette v. U.S., 500 F.3d 914, 919 (9th Cir. 2007); Faber v. U.S., 56 F.3d 1122, 1126 (9th Cir. 1995). 70 Cestonaro v. U.S., 211 F.3d 749, 759 (3d Cir. 2000). 71 Morton v. U.S., No. CV PHX-FJM, 2010 WL , at *4 (D. Ariz. Oct. 8, 2010) (the government s decision to leave a gate to a national park open at night, where the entrance road proceeded into a lake, was enough to subjected them to potential liability under 362

11 MSHA AND CIVIL LIABILITY 9.03 where the government removes all lighting from a boat ramp in light of questionable environmental concerns and fiscal concerns, the discretionary function exception does not apply; 72 and where the government decides whether to post warning signs the discretionary function exception does not apply Application of the FTCA to MSHA. There are a number of opinions addressing the specific application of the FTCA to MSHA with the common result being, for any number of reasons, a dismissal of the claims asserted. The following offers an overview of the more recent cases and examines both the determinative factual and legal issues. [1] Elements to Establish a Claim Against MSHA. There is typically a two prong analysis to the application of the FTCA. Once it has been established that the relevant state law would permit a cause of action against a private person for the same type of acts, the analysis shifts to whether the governmental actor s actions were non-discretionary. 74 In examining the validity of the claim being brought, courts use their discretion in the order of analysis. That is, some courts first consider whether the agent s action was discretionary to dispose of the matter even before getting to the question of whether the state recognizes similar private party liability. 75 Typically, the government will attack a claim brought against it under the FTCA on both grounds. When the claim specifically involves MSHA, the the FTCA and could not be saved under the discretionary function exception by asserting a general policy that individuals have recreational access to the park at all times of day). 72 Id. 73 Id. at *5. 74 See generally Myers v. U.S., 17 F.3d 890 (6th Cir. 1994). 75 See generally id. (finding state liability first before determining whether MSHA agent exercised discretion). See also Bragg v. U.S., 767 F. Supp. 2d 617 (S.D. W. Va. 2011), vacated, 2013 WL (4th Cir. June 11, 2013); cf. Estate of Bernaldes v. U.S., 877 F. Supp. 301 (W.D. Va. 1995) (determining whether the MSHA inspector exercised discretion to determine lack of jurisdiction). 363

12 9.03 ENERGY & MINERAL LAW INSTITUTE government must present evidence that, in the particular instance giving rise to the cause of action, the inspector used his own judgment or choice, and that the agent s discretion was grounded in policy reasons. 76 [2] Myers v. United States. 77 The Sixth Circuit affirmed the dismissal by the United States District Court for the Eastern District of Tennessee 78 in an action brought against MSHA under the FTCA. The Myers case related to the 1981 methane explosion in the Grundy Mine # The explosion occurred when the men at the face cut through to a sealed area which contained a high concentration of methane. 80 Though the methane was detected, the mine was not evacuated and the operator s reaction was to increase the access to the sealed area in the hope that the methane would quickly dissipate. 81 In fact, the ventilation system was not capable of sweeping the methane out of the mine and the use of a cigarette lighter caused the ignition of an explosive mixture of methane. 82 Eleven miners were killed. 83 MSHA s investigation of the explosion concluded that the ventilation system was inadequate at the active face and that the bleeder system to the abandoned area was also inadequate. 84 In addition to being inadequate even in the MSHA approved plans, the investigation found that the faulty plans were also not properly implemented Villanueva v. U.S., 708 F. Supp. 2d 960, 974 (D. Ariz. 2009) ( The discretionary function exception only shields the government from liability if the action at issue: (1) involves an element of judgment or choice ; and (2) is grounded in social, economic, or political policy. (citations omitted) (emphasis added)). 77 Myers v. United States, 17 F.3d 890 (6th Cir. 1994). 78 Cooley v. U.S., 791 F. Supp (E.D. Tenn. 1992). 79 Myers, 17 F.3d at Id. 81 Id. 82 Id. at Id. 84 Id. 85 Id. 364

13 MSHA AND CIVIL LIABILITY 9.03 The plaintiffs alleged in their Complaint against MSHA that it had violated seven mandatory non-discretionary duties that related to the explosion. As is often the case, the government moved to dismiss the Complaint claiming that Tennessee law did not recognize tort liability for a private individual performing the same tasks as the MSHA inspectors, and further that the actions of the MSHA inspectors would still be protected under the discretionary function exception to the FTCA. 86 The District Court first considered and found persuasive the government s argument that the discretionary function exception applied. The District Court broadly held that in approving the ventilation plan at issue: The MSHA District Manager had the discretion to approve such a ventilation plan if, in his best judgment, the proposed plan would provide the same measure of protection to the miners as set forth in the health and safety regulations. If it later developed that the Grundy ventilation plan [as approved] was inadequate, then the most plaintiffs can show is that the MSHA District Manager abused his discretion by approving it. In determining whether the discretionary function exception under the FTCA is applicable, the mere abuse of discretion is immaterial. 87 In a similar manner, the District Court rejected plaintiffs arguments that MSHA had a mandatory duty to perform spot inspections pursuant to 30 U.S.C. 813(i), to inspect for safety violations pursuant to 30 U.S.C. 813(a) and to issue a withdrawal order pursuant to 30 U.S.C. 813(d)(1) and found instead that all of these were discretionary duties. 88 Once it was determined 86 Id. In support of its Motion to Dismiss the government presented to the District Court an affidavit of a MSHA supervisory electrical engineer with 17 years of experience with the agency. This affidavit offered comments on the accuracy of certain allegations made in plaintiffs complaints related to the MSHA Citation and Order Manual. The affidavit pointed out that certain of the provisions cited in the Complaint were not in effect at the time of the explosion. Cooley, 791 F. Supp. at Cooley, 791 F. Supp. at The District Court further rejected plaintiffs argument that MSHA s failure to inspect the mine before approving the ventilation plan breached a mandatory requirement under 30 C.F.R Id. at Id. at

14 9.03 ENERGY & MINERAL LAW INSTITUTE that the employee of the government was exercising his discretion, there was a strong presumption that the acts of the MSHA inspector were grounded in governmental policy. Therefore, the discretionary function exception was found to apply to all of these alleged acts (or failures to act) and the District Court granted the government s Motion to Dismiss. 89 The Sixth Circuit disagreed with this reasoning and found that the discretionary function exception did not apply to the specific actions complained of by plaintiffs. As a preliminary matter, the Sixth Circuit determined that each and every duty set forth by the plaintiffs involved some element of choice or if/then logic by the inspector, and therefore was discretionary in nature. 90 However, the Sixth Circuit relied heavily on the United States Supreme Court opinion in Berkovitz to address what it believed to be a claim by plaintiffs that MSHA made an incorrect determination of compliance. 91 In other words, plaintiffs contend that the MSHA inspectors should have found, but failed to find, the existence of certain safety violations and, if they had, the deaths of these miners would have been prevented. 92 Given that MSHA assessments of safety violations are made based upon objective criteria rather than on the basis of social, economic or political policy it was not a discretionary function when the allegation against MSHA was that its inspectors were to determine compliance and, in the event of non-compliance, issue the mandatory citations and orders. 93 After conducting this detailed analysis of the discretionary function exception, the Sixth Circuit noted that the District Court and the parties involved had approached the FTCA analysis in a backward fashion. 94 As a threshold matter, the FTCA does not create a cause of action but consents to suit and is limited in application to cases in which a private individual would 89 Id. at Myers, 17 F.3d at Id. at Id. 93 Id. at Id. 366

15 MSHA AND CIVIL LIABILITY 9.03 be liable under like circumstances. 95 Plaintiffs must plead facts sufficient to justify liability under ordinary state law principles and thus invoke the court s subject matter jurisdiction under the general waiver of sovereign immunity set forth in 28 U.S.C If this initial hurdle is not cleared there is no need to resort to an examination of the exceptions to the waiver (as was done here) as a means to dismiss the suit. 97 The plaintiffs in Myers offered negligence per se as a theory of liability on the basis that any breach of a safety standard by an MSHA inspector would suffice. 98 The Sixth Circuit quickly rejected this argument, which it commented was one often made by FTCA plaintiffs, as fundamentally flawed. 99 After a brief discussion of the doctrine of negligence per se, the Sixth Circuit entered into a more substantive analysis of the relationship of the Mine Act, MSHA regulations, the coal miner and the operator. According to the Sixth Circuit the Mine Act and MSHA regulations can be divided into two distinct categories: first, those that regulate the conduct of miners and mine owners; and second, those that direct the actions of MSHA inspectors. 100 This second category of regulations does not establish safety standards for the nation s mines but rather the manner in which the government would monitor compliance of safety regulations. 101 Therefore, the obligation of an MSHA inspector is to monitor in order to ensure compliance but not to ensure safety Id. at Id. 97 Id. at 905 ( Relying upon the discretionary function exception to limit liability in cases such as this distorts the scope of that exception by stretching it to meet facts for which it was not intended.... All this, simply because courts seek to avoid the threshold, state law question by assuming some general duty of care ). 98 Id. at Id. 100 Id. 101 Id. at Id. ( For instance, requiring mine owners to provide some specific level of ventilation is a safety regulation enacted to protect miners from inadequate ventilation. Conversely, requiring MSHA officials to approve ventilation plans and requiring MSHA inspectors to monitor ventilation in the mines are decisions made by Congress and the Secretary in order to ensure compliance. ). 367

16 9.03 ENERGY & MINERAL LAW INSTITUTE The other theory of liability offered by plaintiffs was the commonly invoked, voluntary undertaking or good Samaritan doctrine. 103 The Myers Court first noted that Tennessee had never expressly adopted the Restatement provision which sets forth the good Samaritan doctrine. 104 However, for purposes of considering the motion to dismiss the Court evaluated the claims made by the plaintiffs assuming such law was applicable in Tennessee. 105 The Sixth Circuit concluded that the good Samaritan Doctrine required first a finding that the government had undertaken to render services to the mine. 106 Given that this Court had already found that MSHA inspections were sufficient undertakings to justify the good Samaritan doctrine, the Court disposed of this issue quickly. 107 The second issue, in finding a good Samaritan doctrine applicable was evidence that the MSHA inspectors had been negligent and that this negligence increased the risk of harm to the miners. 108 In other words, the Court described that MSHA could be held liable for injuries if the MSHA inspectors made the mine less safe than it otherwise would have been. 109 While plaintiffs make this assertion the Court was critical that [p]laintiffs do not explain how, or to what degree, the risk of explosion was increased, nor have their briefs or arguments enlightened us. 110 The Sixth Circuit affirmed its earlier rejection of an argument that MSHA s failure to detect safety violations, in and of itself, led to an increase in the risk of harm. 111 This gets to the heart of the good Samaritan doctrine or the fact that it requires that the increased risk must be something greater than it would have been had the defendant (in this case MSHA) had not 103 Id. at 901 (citing Restatement (Second) of Torts 323, 324A (1965)). 104 Id. at Id. 106 Id. 107 Id. (citing Raymer v. U.S., 660 F.2d 1136, 1143 (6th Cir. 1981)). 108 Id. 109 Id. 110 Id. 111 Id. (citing Raymer v. U.S., 660 F.2d 113, 1143 (6th Cir. 1981)). 368

17 MSHA AND CIVIL LIABILITY 9.03 engaged in the undertaking at all. 112 There must be affirmative action on the part of MSHA to cause to be made or change conditions in the mine which then created or increased the risk of harm to the miners. 113 The Court reasoned in conclusion that the United States Supreme Court s jurisprudence suggested, [t]hese cases illustrate that, except for where a government employee intermeddles in a situation and makes it worse, the good Samaritan doctrine will only apply against the government in the presence of reasonable, justifiable reliance. 114 Here, the Court reasoned, the government employees are mere observers, monitoring the actions of others. 115 [3] Ayala v. United States. 116 Over the course of more than a decade the issues surrounding MSHA s role in connection with the 1981 Dutch Creek No. 1 mine explosion were litigated. The explosion occurred near Redstone, Colorado and the resulting lawsuits were filed in the United States District Court for the District of Colorado and heard on appeal by the United States Court of Appeals for the Tenth Circuit. All told, seven opinions were rendered in the civil litigation from 1984 to 1995 when the case against the government was finally dismissed. 117 The complex procedural history of the Ayala case is matched by the complex facts of the case. The explosion at the Dutch Creek No. 1 mine on April 15, 1981 led to the death of 15 miners. Due to the large quantities of methane liberated at the mine it had been designated as a hazardous mine under MSHA regulations, placed on a five-day inspection schedule 112 Id. at Id. 114 Id. at Id. 116 Ayala v. United States, 980 F.2d 1342 (10th Cir. 1992). 117 Ayala v. Joy Mfg. Co., 580 F. Supp. 521 (D. Colo. 1984) (Ayala I); Ayala v. Joy Mfg. Co., 610 F. Supp. 86 (D. Colo. 1985) (Ayala II); Ayala v. Joy Mfg. Co., 877 F.2d 846 (10th Cir. 1989) (Ayala III), rev g, 610 F. Supp. 86; Ayala v. United States, 771 F. Supp (D. Colo. 1991) (Ayala IV); Ayala v. United States, 980 F.2d 1342 (10th Cir. 1992) (Ayala V), rev g, 771 F. Supp. 1097; Ayala v. United States, 846 F. Supp (D. Colo. 1993) (Ayala VI). 369

18 9.03 ENERGY & MINERAL LAW INSTITUTE and assigned a resident inspector. 118 There had been five ignitions and two previous explosions over the years in this mine. 119 Regulations taking effect in July of 1978 led the operator, Mid-Continent, to order lighting packages from McJunkin Corporation for their continuous mining machines. 120 The operator s mining engineer, Brad Bourquin, worked with a McJunkin field technician to complete an application to MSHA for field modification permitting the installation of the lights on miner No In June of 1978, Jack Marshall, an MSHA electrical inspector, assisted Bourquin in preparing a revised application for the field modification. 122 The evidence suggested that Marshall told Bourquin to obtain the power by connecting the add-on lights below the main circuit breaker. 123 Bourquin took this advice and prepared a separate diagram about where to connect the lights to the power. 124 This showed the lights connected to the power upstream or above the methane monitor relay, which would prevent the lights from being de-energized by the methane monitor. 125 The diagram was not included with the application submitted for MSHA approval, though evidence suggested that approximately a month later Jack Marshall inspected miner 118 Ayala, 980 F.2d at Sec y of Labor, Mine Safety and Health Admin (MSHA), 5 F.M.S.H.R.C. 261, (1983) (noting that the mine liberated one and a half million cubic feet of methane in a 24- hour period). 120 Ayala, 980 F.2d at Id. 122 Id. 123 Id. According to the Tenth Circuit: The court s findings make clear that Marshall s recommendations about where to connect the lights to the power on the Joy 12CM 2228 were incorrect not because he failed to give further instructions on making the connection but because he simply confused the Joy 12CM 2228 with another type of continuous miner containing different electric circuitry.... There is no doubt from the court s findings that Marshall incorrectly determined that connecting the lights just below the main circuit breaker would allow the lights to be de-energized by the methane monitor. Id. at Id. at Id. at

19 MSHA AND CIVIL LIABILITY 9.03 No which was then operating at the Bear Creek No. 4 mine. 126 No changes were made to this machine for nearly three years but on April 6, 1981, a light switch was installed to allow the add-on lights to be turned off manually. 127 The explosion occurred one week later. It was this light switch that provided an ignition source. A gap caused by a piece of wire in the flange of an explosion proof compartment allowed methane to migrate into the compartment and when the light switch was turned off an arc occurred leading to the explosion. 128 While the faulty installation of the switch created the ignition, had the lighting system been properly wired, it would have been de-energized by the methane monitor. 129 Evidence suggested that a number of MSHA inspectors observed that the lights on the No miner were not being de-energized by the methane monitor. When one inspector was told that the lights had been this way for some time it apparently led him to believe that someone at MSHA had approved this particular wiring. 130 The claims against MSHA were based in large part on the incorrect technical advice given by MSHA inspector Marshall and to some extent the ongoing failure to detect the error in the wiring. 131 The claims were dismissed by the District Court on the grounds that these were acts involving a discretionary function and therefore subject to that exception to the FTCA. 132 The District Court concluded that inspectors had discretion in deciding whether or not to offer technical advice. 133 The Tenth Circuit concluded that this analysis did not go far enough, because the plaintiffs were really 126 Id. But see Sec y of Labor, Mine Safety and Health Admin (MSHA), 5 F.M.S.H.R.C. 261, 272 ( I credit MSHA s version that it did not know of the defective wiring. I base this on the obvious: MSHA at this mine has never been shown to be timid or hesitant in issuing citations. ). 127 Ayala, 980 F.2d at Id. at Id. at Id. 131 Id. at Ayala v. U.S., 771 F. Supp (D. Colo. 1991), aff d in part, rev d in part, 930 F.2d 1342 (10th Cir. 1992). 133 Ayala, 980 F.2d at

20 9.03 ENERGY & MINERAL LAW INSTITUTE alleging that the negligent act was not in giving advice but in the specific engineering advice that was given. 134 Thus, the Tenth Circuit held that [t]he specific decision being challenged here concerning where to connect the lights did not involve any considerations of social, economic, or political policy.... The discretion involved in Marshall s decision was governed solely by technical considerations. 135 For these reasons, the dismissal of this aspect of the claims was reversed. The final chapter in the Ayala legal saga was written in 1995 when the Tenth Circuit again considered an appeal of a dismissal of the remaining claims by the District Court. Though the discretionary function exception had already been found inapplicable, the Tenth Circuit agreed with the District Court s examination of Colorado law and its finding that there was no basis for a negligence claim against MSHA. Imposing a duty of care on MSHA when it provides technical assistance would, in effect, shift the responsibility for safety away from operators and onto MSHA. 136 In the end, no theory of liability proposed by plaintiffs survived and the case against MSHA was dismissed 14 years after the explosion took place. [4] United States v. Olson. 137 The United States Supreme Court s 2005 opinion, United States v. Olson came before the Court on a claim brought by two injured coal miners against the United States alleging that federal mine inspectors had failed to evaluate six written and oral complaints received regarding safety hazards at the mine and failed to conduct inspections of the mine thoroughly and in its entirety. 138 The miners involved were seriously injured when a nine-ton 134 Id. 135 Id. 136 Ayala v. U.S., 49 F.3d. 607, 612 (10th Cir. 1995). The court also rejected the application of the Good Samaritan doctrine because regardless of whether Colorado law permitted this theory against MSHA, the evidence showed it was not reasonable for the operator to rely on MSHA s technical advice. Id. at United States v. Olson, 546 U.S. 43 (2005). 138 Olson v. U.S., 362 F.3d 1236, 1238 (9th Cir. 2004), vacated, U.S. v. Olson, 446 U.S. 43, remanded to, Olson v. U.S. 433 F.3d 1091 (9th Cir. 2006). 372

21 MSHA AND CIVIL LIABILITY 9.03 slab fell from the roof of the mine where they were working. MSHA s own internal investigation concluded that the MSHA Field Office supervisor had failed to ensure that all safety complaints were handled in accordance with the MSHA Program Policy Manual. 139 In particular, the investigation found that the field office supervisor ignored anonymous complaints believing they were not valid under 30 U.S.C. 813(g). It was also alleged that the accident at issue occurred in or near an area of the mine that had been sealed or barricaded only to be reopened for work shortly before the accident occurred. 140 The investigation of the Office of Inspector General found that though inspections had occurred in the barricaded area, there were other, later inspections that did not involve this area of the mine. 141 [a] Decisions of the District Court and the Court of Appeals. The District Court granted the government s motion to dismiss the claims on the grounds that the inspectors decisions whether to respond to complaints or not was discretionary and therefore subject to the discretionary function exception of the FTCA. Further, the District Court concluded that Arizona law did not recognize a cause of action in tort for conduct similar to a mine inspector. The miners took this dismissal up on appeal and the Ninth Circuit Court of Appeals reversed the dismissal. The Ninth Circuit relied heavily on the internal investigations which were critical of the inspectors failure to effectively evaluate all the complaints made about the mine. 142 If follow-up by the inspectors was required under the Program Policy Manual, the Ninth Circuit reasoned this could not be discretionary or subject to the FTCA exception. The Ninth Circuit did agree with the lower court s finding that there is no private-sector analogy to mine inspectors and that such was a unique 139 Id. at Id. 141 Id. at Id. at

22 9.03 ENERGY & MINERAL LAW INSTITUTE governmental function. 143 However, the Ninth Circuit relied upon Arizona law which held that state mine inspectors could be liable for their failure to perform mandatory safety inspections. Thus, in the end, the Ninth Circuit re-instated the suit against MSHA finding no exception under the FTCA to maintain the immunity and the existence of Arizona law which permitted suit against similar state regulatory actors. 144 [b] The United States Supreme Court Decision. Though arriving at the same ultimate conclusion, the United States Supreme Court disagreed with the Ninth Circuit s analysis or method to arrive at the result. 145 As the statute reads, the United States Supreme Court cases have consistently rejected any contention by the government that there should be no liability for functions private individuals do not engage in. Therefore the Court in Olson again rejected the idea that application of the FTCA hinged upon whether or not state law would impose liability upon a municipal or other governmental entity. 146 This standard would result in broadened FTCA application in those states where governmental liability is without limitation. On the other hand, the United States Supreme Court found that the Ninth Circuit had interpreted the statute too narrowly by finding that there were no like circumstances for federal mine inspectors. 147 The Court s seminal case Indian Towing found that a private citizen could be in like circumstances to the United States Coast Guard if that individual took upon himself a duty to warn the public of a danger. This private citizen s good Samaritan task must be done in a careful manner to avoid the imposition of liability. In Olson, the Court found that the same good Samaritan analogy could exist for the conduct of a federal mine inspector. 148 This finding was 143 Id. at Id. (citing Diaz v. Magma Copper Co., 950 P.2d 1165 (Ariz. Ct. App. 1997)). 145 Olson, 546 U.S. at Id. 147 Id. 148 Id. at

23 MSHA AND CIVIL LIABILITY 9.04 made easier when the United States government conceded this very point in its Brief. 149 The government stated, there are private persons in like circumstances to federal mine inspectors, namely, private persons who conduct safety inspections. 150 The Tenth and Sixth Circuits had also found that federal mine inspectors could be held liable for their negligence under a similar private safety inspector analogy. 151 Thus, the significance of the Olson opinion was to close any question about whether a federal mine inspector could be viewed as a private person in similar circumstances and thereby subject to liability under the FTCA. The Court rejected the Ninth Circuit s finding that these were unique governmental functions and rendered it the law of the land that federal mine inspectors are no different from a private person who conducts a safety inspection and is held to a common law standard of performing that work with a reasonable degree of care The Aracoma Mine Disaster. In 2006, the Alma #1 Mine (the Mine ), a large underground drift mine located in southern West Virginia, was operated by Aracoma Coal Company, Inc., then a Massey Energy Company subsidiary. A fire broke out in the Mine on Thursday, January 19, 2006, which resulted in the death of two miners, Don Israel Bragg and Ellery Elvis Hatfield. At the time of the accident, coal was extracted from the Alma Coal Seam, which ranged from 30 to 60 inches in thickness throughout the mine. At the Mine, coal was produced on a longwall section and two continuous mining sections, and was transported from these working sections to the surface by belt. On the day of the fire, coal was being produced from the longwall section and from the No. 2 continuous mining section. 149 Id. (citing Reply Brief for United States at 3). 150 Id. 151 Ayala, 49 F.3d at 607; Myers, 17 F.3d at

24 9.04 ENERGY & MINERAL LAW INSTITUTE [1] The Fire. 152 On January 19, 2006, at approximately 5:05 p.m., a fire started at the No. 9 headgate longwall belt. Spotting the smoke and embers, Bryan Cabell, the evening shift belt examiner/fireboss, called out to the dispatcher, Gary Brown, for help. Shortly after Cabell s call, Jonah Rose and Pat Callaway arrived. After discharging several fire extinguishers on the fire to no avail, Cabell attempted to connect a fire hose to a fire hose outlet located nearby. However, threads on the fire hose coupling and the threads of the fire hose outlet were not compatible. Cabell then opened the fire hose valve in an attempt to direct some water to the fire, but there was no water in the line. The shut-off valve was partially closed but by the time it was opened, the smoke was too dense and no water was applied to the fire. After noticing that smoke was traveling down toward the No. 2 section, Cabell called out to Brown and directed him to instruct the miners on the No. 2 section to evacuate. Brown s first two attempts to call the No. 2 section were unsuccessful. In an attempt to garner the miners attention, Brown deactivated the belt on the No. 2 section. Once alerted, the men on the No. 2 section began to evacuate through the primary escapeway in the intake aircourse as they had been trained. Section foreman, Plumley, informed the miners that if they were unable to use the primary escapeway they would enter the secondary escapeway using the mandoors placed throughout the primary escapeway. The miners boarded the manbus and, after traveling several feet on the primary escapeway, encountered a significant amount of smoke. The smoke became so thick that they could go no further, and had to don their self-contained self-rescuers. The miners then traveled to the nearest 152 The following is an account of the events surrounding the fire as set forth in the governmental investigative reports and may be subject to dispute. See W. Va. Office of Miners Health & Safety Training, Aracoma Coal Co. Alma No. 1: Fatal Investigation, at 10 (2006), available at [hereinafter WVOMHST Report]. See also Mine Health and Safety Admin., Report of Investigation: Fatal Underground Coal Fire, available at D1B2-428A-B4DC-3061D85AF6DC/FinalDownload/DownloadId-5307BC8E1841A07C4B 3B37643EB0F864/DDF18F90-D1B2-428A-B4DC-3061D85AF6DC/fatals/2006/aracoma/ FTL06c1415total.pdf. 376

25 MSHA AND CIVIL LIABILITY 9.04 man door which was a couple of breaks outby the manbus. Once through the mandoor, Plumley conducted a headcount and realized that Bragg and Hatfield were missing. Plumley and two other miners traveled back through the mandoor into the thick smoke in an attempt to find Bragg and Hatfield. After traveling a short distance and shouting for the missing miners to no avail, Plumley and the other miners returned to the secondary escapeway. Mine rescue teams spent the next two days fighting the fire and searching for the missing miners. On January 21, 2006, the bodies of Don Bragg and Ellery Hatfield were discovered. Both men were found to have died from asphyxiation and carbon monoxide intoxication. [2] Findings Regarding the Cause of the Fire. After an investigation, MSHA and the West Virginia Office of Miners Health, Safety and Training (WVOMHST) issued a significant number of violations to Aracoma. WVOMHST alone issued 168 violations, seven of which were determined to have contributed to the accident. 153 MSHA issued 25 contributory violations in connection with the fire. These violations were issued for several hazards which MSHA deemed to be root causes of the fire. These conditions included: (1) the primary escapeway provided for the No. 2 section was not separated from the No. 7 belt entry because a stopping had been removed, allowing smoke and toxic fumes from the fire to enter into the primary escapeway; (2) combustible materials (i.e., grease, oil, coal dust, float coal dust, and coal fines) were allowed to accumulate at the No. 9 headgate belt takeup storage unit; (3) a shut off valve was in the closed position, making water unavailable at the fire hose outlets; (4) the location of the mandoors and stoppings in the escapeways were not clearly marked so the miners could easily identify them; and (5) the No. 9 headgate mother drive conveyor belt was not maintained in a safe operating condition because the carriage was damaged, causing the belt to run out of alignment. 153 WVOMHST Report at