Cooley v. US, No. CIV-1-88-100 to 1-88-105.

• Court: United States District Courts. 6th Circuit. Eastern District of Tennessee
• Citation: 791 F. Supp. 1294
• Decision Date: 31 March 1992
• Parties: Glenda F. COOLEY, Mary A. Tate Campbell, Barbara G. Myers, Joyce Ann Layne Rollins, Connie Rancene Kilgore Parson Dykes, Georgia Ruth Nolan Henry, Plaintiffs, v. UNITED STATES of America, Defendant.
• Docket Number: No. CIV-1-88-100 to 1-88-105.

791 F. Supp. 1294

Glenda F. COOLEY, Mary A. Tate Campbell, Barbara G. Myers, Joyce Ann Layne Rollins, Connie Rancene Kilgore Parson Dykes, Georgia Ruth Nolan Henry, Plaintiffs,
v.
UNITED STATES of America, Defendant.

Nos. CIV-1-88-100 to 1-88-105.

United States District Court, E.D. Tennessee, at Chattanooga.

March 31, 1992.

791 F. Supp. 1295

COPYRIGHT MATERIAL OMITTED

791 F. Supp. 1296

COPYRIGHT MATERIAL OMITTED

791 F. Supp. 1297

Stephen T. Greer, J. Curtis Smith, Dunlap, Tenn., and William E. Shofner, Joseph A. Woodruff, Waller, Lansden, Dortch, Nashville, Tenn., for plaintiffs

Stuart M. Gerson, Asst. Atty. Gen., Robin D. Smith, Trial Atty., Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendant.

MEMORANDUM

EDGAR, District Judge.

On December 8, 1981, Danny J. Cooley, Jackie O. Tate, Charles R. Myers, Darrell Glen Rollins, Gaylon L. Parson, and Harvey

791 F. Supp. 1298

J. Nolan, Jr. accidentally died in a methane gas explosion while working in an underground coal mine operated by their employer, the Grundy Mining Company, in Marion County near Whitwell, Tennessee. Plaintiffs are the widows and duly appointed administratrix of the estates of the deceased coal miners. Plaintiffs have brought these causes of action under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 ("FTCA"), seeking to recover compensatory damages for wrongful death and loss of consortium

Plaintiffs allege that employees of the Federal Mine Safety and Health Administration ("MSHA"), an agency of the United States, were negligent in their inspection and regulatory enforcement activities in the coal mine where the explosion occurred. Plaintiffs claim that the deceased miners relied on MSHA employees to perform their mandatory government duties in a non-negligent manner, and that the negligent performance of the alleged mandatory duties was a proximate cause of the explosion and the resulting deaths. More specifically, plaintiffs complain that MSHA employees were negligent in approving unsafe and inadequate air ventilation plans for the mine, failing to provide a minimum number of spot safety inspections, failing to adequately inspect the mine for safety violations, failing to timely order the withdrawal of the miners from the mine to avoid the dangerous accumulation of explosive methane gas, and failing to issue adequate citations to the mine operator for existing safety violations. Plaintiffs premise their claims on two different theories of tort liability: negligence per se and the Good Samaritan Doctrine as embodied in the Restatement (Second) of Torts §§ 323 and 324A.

Defendant has filed motions in these consolidated cases to dismiss the complaints in their entirety on the ground of lack of subject matter jurisdiction pursuant to Fed. R.Civ.P. 12(b)(1) or, in the alternative, to dismiss the complaints under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. (Court File No. 4). Defendant contends, inter alia, that this Court lacks subject matter jurisdiction because the plaintiffs' claims are barred by the doctrine of sovereign immunity under the discretionary function exception of the FTCA. 28 U.S.C. § 2680(a).

I. STANDARD OF REVIEW

A motion by the United States to dismiss a complaint filed against it pursuant to the FTCA on the ground that the plaintiff's claim is barred by the doctrine of sovereign immunity under the discretionary function exception is properly treated as a motion to dismiss for lack of subject matter jurisdiction. Moffitt v. United States, 430 F.Supp. 34, 37 (E.D.Tenn.1976); see also In re Ohio River Disaster Litigation, 862 F.2d 1237, 1244 (6th Cir.1988), cert. denied, 493 U.S. 812, 110 S.Ct. 59, 107 L.Ed.2d 27 (1989) ("The question whether the discretionary function exception shields the government from liability is one of subject matter jurisdiction.").

Motions to dismiss for lack of subject matter jurisdiction under Fed. R.Civ.P. 12(b)(1) generally come in two varieties. First, a facial attack on the basis for subject matter jurisdiction alleged in a complaint merely questions or tests the sufficiency of the pleading. In considering such facial attacks, the correct standard of review for a trial court is to take the allegations of fact in the complaint as being true. Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990). On the other hand, when a court reviews a complaint which is under factual attack by a defendant, the allegations of fact in the complaint are not presumed to be true. If there is a factual dispute, the district court must weigh the conflicting evidence to determine whether jurisdiction exists. The district court has broad discretion to consider affidavits, documents outside the complaint, and to even conduct a limited evidentiary hearing if necessary to resolve disputed jurisdictional facts. Id. This Court can and will consider affidavits and other documents outside the pleadings in ruling on the motion under Rule 12(b)(1) without thereby converting the motion into one for summary judgment. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert.

791 F. Supp. 1299

denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981); Jackson v. Ohio Bell Tel. Co., 555 F.Supp. 80 n. 1 (S.D.Ohio 1982); cf. Ohio Nat., 922 F.2d at 325

II. STATEMENT OF GEORGE FESAK

Defendant has presented a limited factual attack on certain allegations of fact made in three paragraphs of the complaints. Defendant has submitted the sworn declaration of George Fesak ("Fesak") as Attachment E to its reply memorandum which was filed on August 3, 1988. Fesak states he has been employed by MSHA and its predecessor agencies for over 17 years. His title is supervisory electrical engineer and his duties include supervision of the Program Accountability Group within the Division of Safety, Coal Mine Safety and Health. Fesak states he is familiar with the various editions of MSHA's internal procedures manuals and the March 9, 1978 edition of the MSHA Citation and Order Manual is the one that was in effect at the time of the mine explosion on December 8, 1981. Fesak further states:

4. Paragraph 22 of all of the above complaints purports to quote language from the March 9, 1978 version of MSHA's Citation and Order Manual. After due inquiry, I have discovered that the quoted language appearing in ¶ 22 is not contained in the March 9, 1978 Manual. Instead, this language comes from the edition of MSHA's Citation and Order Manual that became effective on November 1, 1982.

5. Paragraph 32 of all of the above Complaints other than the Complaint filed by Mrs. Glenda Cooley purports to cite and quote language from page 13 of an MSHA Citation and Order Manual effective March 19, 1978. In fact, there is no Citation and Order Manual that became effective March 19, 1978. As stated, the March 9, 1978 edition of the Citation and Order Manual is the one that was effective at all relevant times. After due inquiry, I have discovered that this language is not contained in the March 9, 1978 Citation and Order Manual. Instead, the language in question in ¶ 32 comes from the edition of the Citation and Order Manual that became effective November 1, 1982.

6. Paragraph 44 of all of the above Complaints purports to refer to language contained on page 49 of the MSHA Citation and Order Manual effective March 10, 1978. There is no MSHA Citation and Order Manual that became effective on March 10, 1978. After due inquiry, I have discovered that the language referred to is not contained in the March 9, 1978 Citation and Order Manual. Instead, the language to which ¶ 44 refers is found in the MSHA Citation and Order Manual that became effective on November 1, 1982.

Plaintiffs do not dispute the accuracy of Fesak's statement. The Court finds that Fesak's statement is true and correct. The portions of paragraphs 22, 32, and 44 of the complaints which purport to cite and quote language from the 1978 MSHA Citation and Order Manual are factually incorrect and will not be taken into consideration in determining whether this Court lacks subject matter jurisdiction under the discretionary function exception to the FTCA. The Court finds that plaintiffs have mistakenly cited to language from the text of a MSHA manual which did not become effective until after the mine explosion which is the subject of the instant lawsuits had already occurred. For the purposes of ruling on the defendant's motions to dismiss, the Court will generally treat all other wellpleaded allegations of fact in the complaints as being true. However, the Court when necessary will refer to records submitted by plaintiff, especially the official report of MSHA's investigation into the mine explosion.

III. THE FTCA AND THE DISCRETIONARY FUNCTION EXCEPTION

The United States is immune from suit under the doctrine of sovereign immunity and can be held liable in tort only to the extent that it has expressly waived sovereign immunity. United States v. Orleans, 425 U.S. 807, 813-14, 96 S.Ct. 1971, 1975-76, 48 L.Ed.2d 390 (1976); Lehman v.

791 F. Supp. 1300

Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 2701, 69 L.Ed.2d 548 (1981); Dalehite v. United States, 346 U.S. 15, 30-31, 73 S.Ct. 956, 965, 97 L.Ed. 1427 (1953). The United States may define the conditions under which it will waive sovereign immunity and permit itself to be sued in tort. Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 1197, 18 L.Ed.2d 244 (1967). The "limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied." Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957); see also Lehman, 453 U.S. at 161, 101 S.Ct. at 2702

The FTCA provides a limited waiver of sovereign immunity making the United States liable for certain torts "in the same manner and to the same extent as a private individual under like circumstances...." 28 U.S.C. § 2674...