Estate of Bernaldes v. U.S., 95-1905

• Decision Date: 28 February 1996
• Docket Number: No. 95-1905,95-1905
• Citation: 81 F.3d 428
• Parties: ESTATE OF Denny BERNALDES, Plaintiff-Appellant, v. UNITED STATES of America; 3 Unnamed Inspectors of the Mine Safety and Health Administration, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 428

81 F.3d 428

ESTATE OF Denny BERNALDES, Plaintiff-Appellant, v. UNITED STATES of America; 3 Unnamed Inspectors of the Mine Safety and Health Administration, Defendants-Appellees.

No. 95-1905.

United States Court of Appeals Fourth Circuit.

Argued Feb. 1, 1996.

Decided Feb. 28, 1996.

Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. James H. Michael, Jr., Senior District Judge. No. CA-94-41-H.

ARGUED: Wilfrid Kip Wood, Coleman & Wood, P.C., Fairfax, Virginia, for Appellant. Robin Doyle Smith, Trial Attorney, Torts Branch, Civil Division, United States Department of Justice, Washington, D.C., for Appellees. ON BRIEF: Sean J. Coleman, Coleman & Wood, P.C., Fairfax, Virginia, for Appellant. Frank W. Hunger, Assistant Attorney General, Robert P. Crouch, Jr., United States Attorney, Phyllis J. Pyles, Assistant Director, Torts Branch, Civil Division, United States Department of Justice, Washington, D.C., for Appellees.

Before WILKINS, LUTTIG, and MOTZ, Circuit Judges.

Affirmed by published PER CURIAM opinion.

OPINION

PER CURIAM:

The Estate of Denny Bernaldes, a kiln burner operator who died in a fall at the mine where he worked, brings this wrongful death action against the United States pursuant to the Federal Tort Claims Act. The Estate asserts that certain Mine Safety and Health Administration (MSHA) inspectors negligently failed to discover safety violations in the mine. The district court dismissed the action for lack of subject matter jurisdiction, reasoning that the inspectors' compliance determinations involved the exercise of discretion in carrying out policy driven duties and thus fell within the discretionary function exception to the Federal Tort Claims Act. We affirm.

On the evening of December 13, 1992, Denny Bernaldes died in an accident at the Clearbrook Mine & Mill, an aggregate and lime producing business operated by W.S. Frey, Inc. MSHA determined that Bernaldes fell from the top of a coal chute in a coal storage shed down into a tunnel, where he was buried by falling coal. The Estate claims that when MSHA conducted an inspection of the Clearbrook Mine four months prior to the accident, the inspectors failed to "issue Frey any citations for safety violations related to Mr. Bernaldes' fatal accident, even though these violations were in existence at that time." Specifically, the Estate claims the MSHA inspectors failed to cite Frey for the lack of a grate, railing, or safety harness in the coal shed; inadequate lighting; and inadequate communication equipment among personnel working at the mine. After Bernaldes's death, MSHA did cite Frey for an unguarded opening at the top of the coal chute, failure to provide a safety belt and harness, and lack of adequate communications between the kiln burner operator and those outside the coal shed unit.

In United States v. Gaubert, 499 U.S. 315, 322-23, 111 S.Ct. 1267, 1273-74, 113 L.Ed.2d 335 (1991), the Supreme Court set forth a two-prong test to be used to determine whether the discretionary function exception bars a suit against the United States...