Myers v. U.S.

• Decision Date: 25 July 1994
• Docket Number: Nos. 92-5812,92-5814,92-5816,92-5813,s. 92-5812
• Citation: 17 F.3d 890
• Parties: , 1994 O.S.H.D. (CCH) P 30,357 Barbara G. MYERS, Individually and as Administratrix of the Estate of Charles R. Myers (92-5812); Joyce Ann Layne Rollins, Individually and as Administratrix of the Estate of Darrell Glenn Rollins (92-5813); Connie Rancene Kilgore Parson Dykes, Individually and as Administratrix of the Estate of Gaylon L. Parson (92-5814); Georgia Ruth Nolan Henry, Individually and as Administratrix of the Estate of Harvey J. Nolan, Jr. (92-5816), Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 890

17 F.3d 890

62 USLW 2560, 1994 O.S.H.D. (CCH) P 30,357

Barbara G. MYERS, Individually and as Administratrix of the Estate of Charles R. Myers (92-5812); Joyce Ann Layne Rollins, Individually and as Administratrix of the Estate of Darrell Glenn Rollins (92-5813); Connie Rancene Kilgore Parson Dykes, Individually and as Administratrix of the Estate of Gaylon L. Parson (92-5814); Georgia Ruth Nolan Henry, Individually and as Administratrix of the Estate of Harvey J. Nolan, Jr. (92-5816), Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

Nos. 92-5812, 92-5813, 92-5814, 92-5816.

United States Court of Appeals Sixth Circuit.

Argued June 8, 1993.

Decided March 1, 1994.

Rehearing Denied July 25, 1994.

Joseph A. Woodruff (argued and briefed), James H. Walker, William E. Shofner, Waller, Lansden, Dortch & Davis, Nashville, TN, for Barbara G. Myers, Joyce Ann Layne Rollins, Connie Rancene Kilgore Parson Dykes and Georgia Ruth Nolan Henry.

Gary Humble, David G. Dake, Asst. U.S. Attys., Chattanooga, TN, Phyllis J. Pyles, Robin D. Smith (argued and briefed), U.S. Dept. of Justice, Torts Branch, Civil Div., Stuart M. Gerson, U.S. Dept. of Justice, Civil Div., Washington, DC, for U.S.

Before: GUY and SUHRHEINRICH, Circuit Judges; and DOWD, District Judge. ^*

SUHRHEINRICH, Circuit Judge.

The issue presented is whether, under the Federal Tort Claims Act, 28 U.S.C. Secs. 2671-2680 (the "FTCA"), the United States may be held liable for the deaths of plaintiffs' decedents caused by a methane explosion in a Tennessee coal mine operated by Grundy Mining Company (Grundy). The district court dismissed plaintiffs' cases for lack of subject matter jurisdiction, finding plaintiffs had not alleged facts sufficient to bring their claims against the United States within the limited waiver of sovereign immunity embodied in the FTCA. ¹ We AFFIRM.

I.

The wives and duly appointed administratrices of six miners killed in a 1981 explosion in a Tennessee coal mine filed suit against the United States, ² alleging that the negligence of certain inspectors from the Mine Safety and Health Administration (MSHA), a division of the Department of Labor, ³ caused the fatal explosion. Four of these plaintiffs filed timely notices of appeal and, by stipulation of the parties pursuant to Rule 3(b) of the Federal Rules of Appellate Procedure, their appeals have been consolidated in this court for purposes of argument and opinion.

A.

On December 8, 1981, miners working in Grundy Mine Number 21, as part of a planned expansion, drilled through from the working face of the mine into an abandoned, mined-out area. The abandoned area, which had been sealed off and could not be inspected, contained a dangerous concentration of methane gas. The methane gas began seeping into the active area of the mine where it was immediately detected. Rather than plug the hole or evacuate the mine, Grundy's foremen and superintendents ordered a larger hole cut into the working face so that the methane, trapped in the abandoned area of the mine, could dissipate and be ventilated out through the active portions of the mine. Grundy's ventilation system, however, was inadequate for this task and the concentration of methane gas at the working face of the mine soon reached dangerous levels. This methane gas and the airborne coal dust needed only a single spark--apparently supplied by a miner's forbidden use of a cigarette lighter--to explode killing plaintiffs' decedents and seven other miners in the area.

MSHA inspectors, in the wake of this disaster, inspected the Grundy mine and determined that a number of safety violations contributed to the explosion. The MSHA report concluded:

The failure of the management and miners to abide by the smoking prohibition and the failure of management to provide ventilation controls necessary to maintain adequate ventilation in [the active portion of the mine] and to maintain an effective bleeder system [to ventilate the] abandoned area were direct causes of the explosion.

It was also determined that, not only had Grundy's

ventilation plan been inadequate, but also that Grundy

failed to implement the plan as approved by MSHA. Finally,

Grundy failed to follow adequate coal dust suppression

techniques, a practice for which Grundy had been cited prior

to the explosion. The MSHA report concluded, however, that

very little coal dust participated in the explosion which

was, predominantly, a methane-air ignition. Other

violations were found, but no connection between these

violations and the explosion was established.

B.

In their identically worded complaints, plaintiffs allege the existence of seven "mandatory non-discretionary" duties on the part of MSHA officials arising out of federal mine safety statutes and MSHA regulations. MSHA's breach of these duties, the plaintiffs contend, gives rise to liability under either the state-law "negligence per se" or "good samaritan" doctrines. These duties, and the statutes or regulations from which they stem, are taken from plaintiff Myers' complaint as follows:

1. "to disapprove unsafe and inadequate ventilation plans proposed by mine operators," relying upon 30 C.F.R. Secs. 75.316 et. seq.;

2. "to provide a minimum of one spot inspections [sic] every five working days at irregular intervals upon finding in a mine an especially hazardous condition," relying upon 30 U.S.C. Sec. 813(i);

3. "to inspect each underground coal mine in its entirety at least four times a year in order to determine whether an imminent danger exists and whether there is compliance with the mandatory health and safety standards set forth in the Act and the rules and regulations promulgated thereunder," relying upon 30 U.S.C. Sec. 813(a);

4. "to order mine operators to withdraw all persons in areas affected by significant and substantial violations of mandatory health and safety standards until such violations have been abated," relying upon 30 U.S.C. Sec. 814(e);

5. "to withdraw all persons in areas affected by unwarrantable failure violations of mandatory health and safety standards until such violations have been abated," relying upon 30 U.S.C. Sec. 814(d)(1);

6. "to withdraw all persons in areas where imminent danger exists until such danger is abated," relying upon 30 U.S.C. Sec. 817(a);

7. "to issue citations [upon the inspector's belief that a violation exists], and upon violation of such citations, to prohibit unauthorized persons into areas covered or affected by such citations," relying upon 30 U.S.C. Sec. 814(a)-(b).

The government moved to dismiss plaintiffs' complaints for lack of subject matter jurisdiction on the grounds that the acts of MSHA inspectors, had they been performed by "private individuals," would not have given rise to tort liability under applicable state law. Furthermore, the government argued, even if such liability could exist, Congress has preserved sovereign immunity in this instance because the actions of the MSHA inspectors are protected by 28 U.S.C. Sec. 2680(a), the "discretionary function" exception to the FTCA.

The district court granted the government's motions to dismiss, relying exclusively upon the discretionary function exception. The district court held that MSHA inspectors were given considerable discretion under the relevant statutes and regulations and, because this discretion was to be exercised in furtherance of the same governmental policies which led to the enactment of the various statutes and regulations, the discretionary function exception to the FTCA barred plaintiffs' claims.

We disagree. For the reasons expressed below, we hold that the discretionary function exception does not apply to the actions of MSHA inspectors about which plaintiffs complain. Nevertheless, we affirm the district court's dismissal because state law provides no grounds upon which plaintiffs could recover had the MSHA inspectors been "private individuals" and, therefore, the general waiver of sovereign immunity under the FTCA does not apply.

II.

The parties and the district court focused their attention on the applicability of the "discretionary function" exception to plaintiffs' claims. Although this places the proverbial cart before the horse, see infra at Section III., we also begin our analysis with this issue.

A.

The FTCA does not create a cause of action against the United States. Howell v. United States, 932 F.2d 915, 917 (11th Cir.1991). Nor does the FTCA provide a means of enforcing federal statutory duties. Sellfors v. United States, 697 F.2d 1362, 1365 (11th Cir.1983), cert. denied, 468 U.S. 1204, 104 S.Ct. 3571, 82 L.Ed.2d 870 (1984). Rather, it constitutes consent to suit and is fundamentally limited to cases in which "a private individual [would be liable] under like circumstances." 28 U.S.C. Sec. 2674. Even where a government employee, acting in the scope of his employment, fails to exercise due care under circumstances that would leave a "private individual" liable under state law, Congress has retained the principle of sovereign immunity in certain situations. 28 U.S.C. Sec. 2680(a)-(n). The government argues, and the district court agreed, that 28 U.S.C. Sec. 2680(a), the discretionary function exception, applies in this case. This exception provides that the FTCA's waiver of sovereign immunity shall not extend to:

Any claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

28 U.S.C. Sec. 2680(a).

For some time, it was thought that the discretionary function exception extended blanket protection from suit to all regulatory activities of the various federal agencies. See United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 813-14, 104 S.Ct. 2755, 2764, 81 L.Ed.2d 660 (1984) ("whatever else the discretionary function exception...