55 F.3d 910 (4th Cir. 1995), 94-1573, Perkins v. United States

Docket Nº:94-1573.
Citation:55 F.3d 910
Party Name:Susie Myers PERKINS, Administratrix of the Estate of John David Perkins, Jr., Deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
Case Date:April 18, 1995
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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55 F.3d 910 (4th Cir. 1995)

Susie Myers PERKINS, Administratrix of the Estate of John

David Perkins, Jr., Deceased, Plaintiff-Appellant,


UNITED STATES of America, Defendant-Appellee.

No. 94-1573.

United States Court of Appeals, Fourth Circuit

April 18, 1995

Argued Feb. 1, 1995.

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ARGUED: Isaac Norris Kantor, Sr., Katz, Kantor & Perkins, Bluefield, WV, for appellant. Donald Lee Stennett, Asst. U.S. Atty., Charleston, WV, for appellee. ON BRIEF: Rebecca A. Betts, U.S. Atty., Stephen M. Horn, Asst. U.S. Atty., Charleston, WV, for appellee.

Before MICHAEL and MOTZ, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Affirmed by published opinion. Senior Judge PHILLIPS wrote the opinion, in which Judge MICHAEL and Judge MOTZ joined.


PHILLIPS, Senior Circuit Judge:

Susie Myers Perkins appeals from the dismissal of her wrongful death action, brought under the Federal Tort Claims Act, 28 U.S.C. Secs. 2671-2680 (FTCA). We affirm.


John D. Perkins died on July 21, 1991, of asphyxiation due to oxygen deficient air, in the portal of the Double E Mining Number 1 Mine, located at Coal Mountain, Wyoming County, West Virginia. An investigation by the U.S. Department of Labor, through the

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Mine Safety and Health Administration (MSHA), revealed the following facts. 1

Before April 12, 1991, Double E Mining, Inc. operated Double E Mining No. 1 Mine under a lease from Island Creek Coal Company. Double E Mining may have been using equipment there that was owned by Marcus Coal, a delinquent taxpayer. The mine ceased production on April 12, 1991, and the property reverted to Island Creek. Island Creek began to seal the mine, but was compelled to discontinue the operation by Internal Revenue Service (IRS) Agent Thaddeus Smyth. Agent Smyth advised that the IRS had obtained a seizure order for Marcus Coal's mining equipment, which was believed to be located underground, and had engaged someone to pump water out of the mine and retrieve the equipment so it could be sold in payment of delinquent federal taxes. 2

In July 1991, Agent Smyth orally contracted with John D. Perkins and Robert Neal to remove the equipment from the mine. Neal identified himself as Vice-President of B & H Retrieving Company, a licensed, certified, and bonded mine retrieval company. On July 17, 1991, at Smyth's direction, Perkins, Neal, Keith Lunsford, and Fred Powers began dewatering operations at the mine in an effort to lower the water level to allow recovery of the equipment. On July 17, 1991, Lunsford and Powers were overcome by contaminated air in the portal of the mine, but were rescued before they died. They informed Agent Smyth of the incident, but he ordered them to continue the recovery operation.

The men were operating the dewatering pumps 24 hours per day and sleeping in a shack near the mine when they needed rest. On the night of July 20, 1991, Perkins reportedly turned off the main ventilation fan for the mine because it was disrupting his sleep. At approximately 2:00 a.m. on July 21, Perkins went into the mine alone, apparently to check on the pumps, was overcome by oxygen-deficient air, and died of asphyxiation. Lunsford discovered his corpse thirty feet inside the portal of the mine at approximately 3:30 a.m.

MSHA made the following findings:

The accident and resultant fatality occurred because the main fan was not operating, and pre-shift examinations were not conducted. Contributing factors were the fact that a certified foreman was not present on the mine site and that instruments to test for methane and oxygen deficiency were not properly maintained in an operative condition.

J.A. 8-9. MSHA also determined that several other safety violations had contributed to Perkins's death. Despite these findings, MSHA withheld the issuance of citations "because the equipment recovery activities were under the control of the [IRS], a government agency," and because Perkins had "died in the performance of a Federal Government function." J.A. 9, 11.

Claiming that Perkins's death was caused by the negligence of the United States and its agents in numerous particulars, including violating federal and state regulations governing coal mining, 30 C.F.R. Secs. 75.300, et seq., W.Va.Code Secs. 22A-2-3, et seq., violating Internal Revenue Manual provisions governing seizure of assets, and failing to notify the MSHA of operations at the mine designed to recover the mining equipment, his widow first filed an administrative tort claim, which the IRS denied. She then brought this wrongful death action against the United States as the administrator of Perkins's estate.

The United States moved to dismiss the action on two grounds: first, that the action was a claim in respect of the assessment or collection of taxes and was therefore excepted from the waiver of sovereign immunity under the FTCA and, second, that Mr. Perkins was an employee of the United States whose sole remedy is under the Federal Employees Compensation Act, 5 U.S.C. Secs. 8101, et seq. The district court granted the motion on the first ground, and consequently did not

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reach the question whether Perkins was a federal employee.

Mrs. Perkins then filed motions to alter or amend the district court's judgment (styled as a motion for reconsideration) under Fed.R.Civ.P. 59(e) and for leave to file an amended complaint under Fed.R.Civ.P. 15(a), adding herself in her individual capacity and her child as additional plaintiffs and adding three new counts, namely, negligent supervision of Smyth by his supervisors, loss of parental consortium, and loss of spousal consortium. The district court denied both motions, thereby reaffirming its original order granting the United States' motion to dismiss. Perkins v. United States, 848 F.Supp. 1236 (S.D.W.Va.1994).

Mrs. Perkins then took this appeal in which she challenges the propriety of the dismissal of her action and, specifically, the district court's finding that Agent Smyth's actions fell within the "assessment and collection of taxes" exception to the FTCA.


As sovereign, the United States enjoys immunity from suits for damages at common law. The FTCA is a limited statutory waiver of this immunity. 28 U.S.C. Secs. 1346, 2671-2680. It gives jurisdiction to the federal district courts to hear civil actions against the United States for money damages for injuries caused by the negligent or wrongful acts or omissions of government employees while acting within the scope of their employment, subject to several exceptions. One of these exceptions exempts "[a]ny claim arising in respect of the assessment or collection of any tax or customs duty" from the application of the provisions of the FTCA. 28 U.S.C. Sec. 2680(c). The assessment and collection exemption, as with all provisions of the FTCA, "must be strictly construed in favor of the sovereign." Thigpen v. United States, 800 F.2d 393, 394 (4th Cir.1986).

The opinions interpreting section 2680(c) clarify that the exemption applies not only to actions by persons against whom the tax collection efforts are directed, but also to actions by third parties injured by tax collection efforts. Murray v. United States, 686 F.2d 1320, 1324 (8th Cir.1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 788, 74 L.Ed.2d 994 (1983); Broadway Open Air Theatre v. United States, 208 F.2d 257, 259 (4th Cir.1953). Thus, section 2680(c) bars Mrs. Perkins's action if her injuries were caused by Agent Smyth's tax collection efforts even though neither she nor her husband were the subject taxpayer.

The opinions decided under section 2680(c) also interpret the section to encompass a broad scope of activities by IRS agents. The Fifth Circuit has explained

Congress retained the United States' sovereign immunity for any claim in respect of the assessment or collection of taxes. This language is broad enough to encompass any activities of an IRS agent even remotely related to his or her official duties.

Capozzoli v. Tracey, 663 F.2d 654, 658 (5th Cir.1981) (second emphasis added). See also Kosak v. United States, 465 U.S. 848, 852-55, 104 S.Ct. 1519, 1522-24, 79 L.Ed.2d 860 (1984) (although this decision concerned damages caused by the negligent handling of property detained by a customs agent, its interpretation of section 2680(c) as broad-scoped applies with equal force in the taxation arena).

Mrs. Perkins offers various theories to establish that, despite the breadth of the exemption, Agent Smyth's actions did not fall within the protection of section 2680(c). First, she argues that, because IRS agents are not authorized to commit torts or to violate regulations, any torts or violations committed by Smyth during an assessment or collection effort cannot be considered to be within the scope of his official duties. She explains that Mr. Perkins's death was caused by Smyth's violations of numerous federal and state laws that were, by definition, outside the scope of his duties, and that the IRS should therefore not be immune from her suit.

Her argument lacks merit. "[T]his construction, which would render Section 2680(c) meaningless, has been consistently rejected." Capozzoli, 663 F.2d at 658 (citing Broadway Open Air Theatre, 208 F.2d at

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259, and other cases). It is well established that regulatory violations and torts committed by agents are within the scope of the exception if they were committed during the course of a tax assessment or collection effort. In Broadway Open Air Theatre, this Court held that the IRS was immune from liability stemming from activities of its agents allegedly involving wrongful conversion of funds, so long as the activities were related to tax assessment and collection. 208 F.2d 257. Similarly, in Murray v. United States, where plaintiff alleged that the IRS had violated the Internal Revenue Code in not allowing him to redeem his property, the court nevertheless held that suit under...

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