Ayala v. U.S.
| Decision Date | 25 November 1992 |
| Docket Number | Nos. 91-1340,91-1390,s. 91-1340 |
| Citation | 980 F.2d 1342 |
| Parties | , 24 Fed.R.Serv.3d 766, 1993 O.S.H.D. (CCH) P 29,913 Patsy AYALA, Plaintiff-Appellant, and Donna M. Ayala, et al., Plaintiffs, v. The UNITED STATES of America, Defendant-Appellee. Patsy AYALA, et al., Plaintiffs-Appellants, v. The UNITED STATES of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Jean E. Dubofsky of Dubofsky & Phelan, Boulder, Colo., and David W. Griffith, Collbran, Colo. (Mari C. Bush of Williams & Trine, Boulder, Colo., with them on the brief), for plaintiffs-appellants.
Robin D. Smith, Trial Atty., Torts Branch, Civil Div., U.S. Dept. of Justice, Washington, D.C. (Stuart M. Gerson, Asst. Atty. Gen., Civil Div., Michael J. Norton, U.S. Atty., and Phyllis J. Pyles, Asst. Dir. Torts Branch, Civil Div., on the brief), for defendant-appellee.
Before KELLY and McWILLIAMS, Circuit Judges, and BROWN, District Judge. *
This action arises out of an explosion in a coal mine on April 15, 1981, near Redstone, Colorado. Fifteen miners were killed in the explosion. The plaintiffs-appellants are relatives of the deceased miners. The sole remaining defendant in the case is the United States. The plaintiffs allege that the United States is liable under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), because the conduct of employees of the Mine Safety and Health Administration ("MSHA") was a cause of the explosion. The district court entered judgment in favor of the United States, and plaintiffs now appeal.
We first must address whether we have jurisdiction to hear the appeal. This court requested additional briefing by the parties on the issue of jurisdiction in light of a potential problem with the notice of appeal filed by the plaintiffs. The district court dismissed plaintiffs' claims for relief in a final judgment entered on August 9, 1991. Plaintiffs filed a notice of appeal on September 26, 1991. The notice was defective, however, in that it simply listed "Ayala, et al." as the appellants instead of identifying each party seeking to appeal. Normally, the parties taking an appeal must be specifically identified in the notice of appeal in order to confer appellate jurisdiction on this court. Fed.R.App. 3(c); Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988). This first appeal was designated as Tenth Circuit No. 91-1340.
Upon being notified that there was a potential problem with the notice of appeal, the plaintiffs obtained an extension of time from the district court and filed a second notice of appeal naming each of the appellants individually. 1 This second appeal was designated as Tenth Circuit No. 91-1390. The defendant United States has now filed a motion to dismiss case No. 91-1390. 2
We find it unnecessary to address the issues raised by the defendant's motion to dismiss No. 91-1390 because we find that we have jurisdiction to hear the appeal of each plaintiff in 91-1340. It is true that Rule 3(c) of the Federal Rules of Appellate Procedure requires that the notice of appeal "specify the party or parties taking the appeal" and that plaintiffs did not include that information in their first notice of appeal. But "when papers are technically at variance with the letter of [Rule 3], a court may nonetheless find that the litigant has complied with the rule if the litigant's action is the functional equivalent of what the rule requires." Torres, 487 U.S. at 316-17, 108 S.Ct. at 2408-09. We have recognized that a docketing statement or other documents filed within the period allotted for filing a notice of appeal may cure defects in the notice of appeal. See Hubbert v. City of Moore, Okla., 923 F.2d 769, 772 (10th Cir.1991). In the instant case, the plaintiffs filed their docketing statement on October 8, 1991. This was within the sixty-day time period they had to file a notice of appeal. Fed.R.App.P. 4(a). The docketing statement identified the parties taking the appeal as "Plaintiffs" and an attachment to the docketing statement specifically listed each of the plaintiffs by name. We find that the plaintiffs' documents, although technically at variance with Rule 3(c), are the functional equivalent of a proper notice of appeal. Cf. Smith v. Barry, 502 U.S. ----, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992) () The documents, taken together, give fair notice of the specific individuals seeking to appeal and are sufficient to confer jurisdiction on us to hear the appeal. Cf. Hubbert, 923 F.2d at 772.
The following is a summary of the facts found by the district court. See Ayala v. United States, 771 F.Supp. 1097 (D.Colo.1991). The mine in which the April 15, 1981, explosion occurred, the Dutch Creek No. 1 Mine, was owned and operated by Mid-Continent Coal and Coke Company ("Mid-Continent"). A continuous mining machine was used in the mine. This machine mechanically cut into a seam of coal as it proceeded slowly forward. The coal broken loose by the continuous miner was moved by conveyor belt or other device back into the tunnel and transported to the surface. The miner occasionally encountered large pockets of methane gas, called "outbursts," in the seam of the coal. During an outburst, the area in the tunnel around the continuous miner became filled with a highly explosive methane gas and coal dust mixture. Because of the large quantity of methane gas liberated in the Dutch Creek No. 1 Mine, the mine was designated a hazardous mine under MSHA regulations and was placed on a five-day inspection schedule and assigned a resident inspector.
MSHA regulations require electrical equipment, including the continuous miners, to be equipped with a methane monitor. A methane monitor is required to automatically de-energize electrical equipment when the methane gas content in the tunnel reaches a level of two per cent or greater. De-energization is imperative to prevent sparks which, in the presence of a high concentration of methane gas, would cause an immediate explosion. When the methane monitor detects concentrations of methane of two per cent or greater in the surrounding air, it should de-energize the continuous miner by interrupting the power at the continuous miner's control circuit. Only the main power circuit and the methane monitor circuit remain energized so that the methane monitor can continue to operate.
MSHA promulgated standards for illumination in underground coal mines effective July 1, 1978. In order to comply with these standards, it was contemplated that lighting systems would be installed on self-propelled continuous mining equipment. In order to meet this July 1, 1978 deadline, Mid-Continent ordered certain lighting "packages" from the McJunkin Corporation ("McJunkin") for installation on Mid-Continent's continuous mining machines. Addition of the lights constituted a field modification of underground mining equipment which required MSHA approval of a field modification application and an MSHA inspection of the modified equipment before use of the equipment was allowed.
In March of 1978, Brad Bourquin was employed as a mining engineer by Mid-Continent. He was assigned to install the add-on lights to comply with MSHA standards. Bourquin, with the assistance of a McJunkin field technician, completed an application for field modification for the installation of McJunkin lights on a particular Joy Manufacturing Company continuous miner, Serial No. 2228 (hereinafter the "Joy 12CM 2228"). The application prepared by Bourquin included a wiring diagram showing how the lights would be wired to the Joy 12CM 2228.
Jack Marshall was a coal mine electrical inspector employed by MSHA in its Price, Utah, office. On or about June 9, 1978, Marshall assisted Bourquin in preparing a revised application for field modification of the Joy 12CM 2228. On or about June 14, 1978, just as Marshall was ready to return to Price, Bourquin asked Marshall where to connect the add-on lights to the power on the Joy 12CM 2228. Marshall knew that MSHA regulations required the add-on lights to be de-energized by the methane monitor. Marshall told Bourquin to obtain the power by connecting the add-on lights below the main circuit breaker.
The application which Bourquin submitted through Marshall for approval by MSHA of the wiring included a diagram prepared by McJunkin to be used on all different types of mining machines. The McJunkin diagram did not specifically indicate where to connect the lights on the Joy 12CM 2228 to the power. Bourquin prepared a separate diagram with the advice from Marshall about where to connect the lights to the power. The Bourquin diagram showed the lights connected to the power upstream from, or above, the methane monitor relay. Bourquin's diagram was distributed to the electricians in all the Mid-Continent mines to show them how to wire the add-on lights to the continuous miners. Bourquin's diagram was not included with the application submitted for MSHA's approval.
The add-on lights were installed on the Joy 12CM 2228 on or about July 27, 1978. It was the first continuous miner at Mid-Continent on which the add-on lights were installed. It was MSHA's policy that field installations such as the one on the Joy 12CM 2228 were inspected the first time the MSHA inspector was able to do so. On July 27, 1978, electrical inspector Jack Marshall inspected the Bear Creek No. 4 Mine where the Joy 12CM 2228 was then operating.
In May of 1980, following the initial installation of the McJunkin lights, the Joy 12CM 2228 was transferred to the Dutch Creek No. 1 Mine. No relevant changes were made to the machine until April 6, 1981, when a light switch was installed. Mid-Continent employees replaced the old cover plate on an explosion-proof compartment of the...
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