Bragg v. U.S.

Decision Date07 February 2011
Docket NumberCivil Action No. 2:10–0683.
Citation767 F.Supp.2d 617
CourtU.S. District Court — Southern District of West Virginia
PartiesDelorice BRAGG, as Administratrix of the Estate of Don Israel Bragg, and Freda Hatfield, as Administratrix of the Estate of Ellery Hatfield, Plaintiffs,v.UNITED STATES of America, Defendant.

OPINION TEXT STARTS HERE

Bruce E. Stanley, Reed Smith, Pittsburgh, PA, for Plaintiffs.Fred B. Westfall, Jr., Charles T. Miller, U.S. Attorney's Office, Charleston, WV, for Defendant.

MEMORANDUM OPINION AND ORDER

JOHN T. COPENHAVER, JR., District Judge.

Pending is the motion to dismiss of defendant United States of America (United States), filed June 25, 2010. The statement of facts set forth in Part I below is taken from the plaintiffs' complaint.

I.

Plaintiffs are representatives of the estates of their respective deceased husbands Don Israel Bragg (Bragg) and Ellery Hatfield (Hatfield). Bragg and Hatfield were two miners who died during a fire at Aracoma Coal Company's Alma Mine (Alma Mine or “the mine”) on January 19, 2006. ( See Compl. ¶¶ 9–41). Bragg and Hatfield worked in “2 Section of the mine as roof bolt machine operators. ( Id. ¶ 16). While Bragg and Hatfield were on duty the evening of January 19, 2006, a fire broke out. ( Id. ¶ 19). The mine facilities were ill-equipped to handle the blaze due to various inadequate safety measures implemented by Aracoma Coal Company (“Aracoma Coal”). ( See id. ¶ 43). After unsuccessfully attempting to extinguish the fire, various miners were forced to evacuate. Early attempts to warn the 2 Section workers failed due to telephone malfunctions ( id. ¶¶ 30–31), but those workers were eventually notified and began their evacuation as well.

The 2 Section workers encountered a number of obstacles in attempting to escape Alma Mine. ( Id. ¶¶ 32–34). Due to a faulty ventilation system, smoke from the fire flooded the escape route and reduced visibility within the mine. ( Id. ¶ 36). Although the workers attempted to utilize breathing devices called Self–Contained Self–Rescuers to deal with the smoke, they lacked the training necessary to operate these devices. ( Id. ¶ 37).

Ultimately, ten miners emerged from Alma Mine safely; Bragg and Hatfield were not among them. ( Id. ¶ 40). On January 21, 2006, two days after the fire, rescuers found their bodies. ( Id.). The medical examiner's report for Bragg attributes his death to suffocation and carbon monoxide intoxication. ( Id. ¶ 41). The medical examiner's report for Hatfield cites carbon monoxide intoxication as the cause of death. ( Id. ¶ 41).

On January 26, 2006, the Mine Safety and Health Administration (“MSHA”), began investigating the Alma Mine fire. ( Id. ¶ 42). MSHA determined that numerous violations of the Mine Safety and Health Act (“the Mine Act), 30 U.S.C. § 801, et seq. by Aracoma Coal contributed to the cause and severity of the fatal fire. ( Id. ¶ 43). Among Aracoma Coal's violations were “inadequate training; inadequate firefighting and emergency evacuation procedures ... [and] failure to conduct an immediate evacuation of miners working in 2 Section.” ( Id. ¶ 44 (citing Compl., Ex. A, Internal Review of MSHA's Actions at the Aracoma Alma Mine # 1 (“MSHA Review”) 2–3)).

MSHA's investigation also revealed the inadequacies of its own previous inspections of Alma Mine. Indeed, the MSHA Review is aptly characterized as a comprehensive and stinging assessment of the Agency's multiple failures to properly police 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.” ( Id. ¶¶ 48–50 (citing MSHA Review 19)). Likewise, MSHA personnel breached “explicit Agency policy regarding Section 103(i) inspections [i.e., spot inspections] by failing to “undertake reasonable efforts to detect mine hazards” and by exhibiting “a lack of initiative to appropriately conduct Section 103(i) inspections.” ( Id. ¶ 53 (citing MSHA Review 21)).

MSHA determined that its own inspectors were at fault for failing to identify or rectify many obvious safety violations that contributed to the fire. ( Id. ¶ 54 (citing MSHA Review 104)). Specifically, MSHA concluded as follows:

[I]n the year before the January 19, 2006, fatal fire at the Alma Mine # 1, 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 Alma Mine # 1 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 Alma Mine # 1, from the inspectors who conducted the mine inspections through the headquarters office personnel who ultimately were responsible for overseeing MSHA activities throughout the Nation.

( Id. ¶ 66 (citing MSHA Review 180)).

Plaintiffs, the widows of Bragg and Hatfield, instituted this action on April 28, 2010, invoking the court's jurisdiction pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671– 2680. In Count I, the sole count of the complaint, plaintiffs assert claims under West Virginia law for negligence and wrongful death. ( See Compl. ¶¶ 67–79). Plaintiffs allege that “the United States is liable here for negligently executing a duty it undertook, and for failing to exercise reasonable care to prevent harm to the Plaintiffs caused by the United States' affirmative negligent conduct.” ( Id. ¶ 70).

On June 25, 2010, the United States moved to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. It contends that (1) the Mine Act does not create an express or implied right of action to sue the United States for alleged violations of the Act, (2) the FTCA does not waive the sovereign immunity of the United States for violations of federal statutes and federal law, (3) plaintiffs' claims would not give rise to liability for a private person under West Virginia law, and the complaint therefore fails to state a claim upon which relief can be granted under the FTCA, (4) plaintiffs have failed to establish a waiver of sovereign immunity by the United States with respect to its claims, and (5) the complaint fails to meet the requirement of Federal Rule of Civil Procedure 8 because it fails to allege sufficient facts to support its claim. (Def.'s Mot. to Dismiss 1–2).

Inasmuch as the court's ruling on defendants' motion to dismiss turns on jurisdictional grounds pursuant to Rule 12(b)(1), the court has no occasion to reach defendants' contentions, made pursuant to Rule 12(b)(6), that plaintiffs' complaint alleges insufficient factual matter to state a claim that is plausible on its face.

II.
A. Governing Standard for Rule 12(b)(1) Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(1) permits a party to move for dismissal if the court lacks subject matter jurisdiction. Federal district courts are courts of limited subject matter jurisdiction, possessing “only the jurisdiction authorized them by the United States Constitution and by federal statute.” United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir.2009). As such, “there is no presumption that the court has jurisdiction.” Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir.1999) (citing Lehigh Mining & Mfg. Co. v. Kelly, 160 U.S. 327, 327, 16 S.Ct. 307, 40 L.Ed. 444 (1895)). Indeed, when the existence of subject matter jurisdiction over a claim is challenged under Rule 12(b)(1), [t]he plaintiff has the burden of proving that subject matter jurisdiction exists.” Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.1999); see also Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991). If subject matter jurisdiction is lacking, the claim must be dismissed. See Arbaugh v. Y & H Corp., 546 U.S. 500, 506, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006).

B. The FTCA

Plaintiffs' claims are predicated on the United States' waiver of sovereign immunity under the FTCA. The FTCA “provides for ‘a limited waiver of sovereign immunity, making the Federal Government liable to the same extent as a private party for certain torts of federal employees acting within the scope of their employment.’ Wood v. Standard Prods. Co., 671 F.2d 825, 829 (4th Cir.1982) (quoting United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976)); 28 U.S.C. § 1346(b). Specifically, the FTCA makes the United States liable for torts “in the same manner and to the same extent as a private individual under like circumstances,” 28 U.S.C. § 2674, “in accordance with the law of the place where the act or omission occurred,” id. § 1346(b). “Even if specific behavior is statutorily required of a federal employee, the government is not liable under the FTCA unless state law recognizes a comparable liability for private persons.” Ayala v. United States, 49 F.3d 607, 610 (10th Cir.1995). Thus, the United States can be held liable in this case only if a “private individual under like circumstances” would be liable under the law of West Virginia.1 See id. §§ 1346(b), 2674.

The court recognizes that [a]ll waivers of sovereign immunity must be ‘strictly construed ... in favor of the sovereign.’ Welch v. United States, 409 F.3d 646, 651 (4th Cir.2005) (quoting Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996)). In the FTCA context, “it is the plaintiff's burden to show that an unequivocal waiver of sovereign immunity...

To continue reading

Request your trial
2 cases
  • Pauley v. Metlife Bank, N.A., CIVIL ACTION NO. 3:11-0486
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • December 14, 2011
    ...Health Administration (MSHA) inspectors could not be held liable to miners under a special relationship theory. Bragg v. United States, 767 F. Supp.2d 617, 628 (S.D.W. Va. 2011). In addition to claims of mismanagement of their account, Plaintiffs in this case have alleged that Mr. May made ......
  • In re Imprelis Herbicide Mktg., Sales Practices & Prods. Liab. Litig., MDL No. 2884
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • January 30, 2013
    ...damage. Thus, the "special relationship" doctrine does not squarely apply to the Bordases' situation. See Bragg v. United States, 767 F. Supp. 2d 617, 627 (S.D.W. Va. 2011) (noting that the "special relationship" exception has been narrowly applied in cases in which the losses are purely ec......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT